EXHIBIT 10.48
LEASE AGREEMENT
FOR THE AVNET BUILDING
LEASE (Single Tenant Building)
ASU Research Park
LEASE (this "Lease"), entered into this 20 day of April, 1999, between XXXX
COMPANIES US, INC., a Minnesota corporation ("Landlord"), and AVNET, INC., a New
York corporation ("Tenant").
1. PREMISES; PERMITTED USE:
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Landlord, subject to the following terms and conditions, hereby leases to
Tenant the lots in ASU Research Park, in Tempe, Arizona, legally described in
Exhibit A (the "Land"), together with a building and related improvements (the
"Building") containing 132,070 square feet to be constructed by Landlord as more
particularly shown on the Plans. The Land and the Building are referred to as
the "Premises," which will have a street address of 0000 Xxxxx Xxxx, Xxxxx,
Xxxxxxx.
Tenant may use the Premises as the corporate, regional or national
headquarters of a division, subsidiary or affiliate of Avnet, Inc., and for any
other permitted uses under the Restrictions and for no other purpose, subject to
the terms and conditions of this Lease.
2. TERM; POSSESSION:
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The term of this Lease ("Term") shall be approximately one hundred twenty
(120) months commencing on or about February 21, 2000 (the "Target Commencement
Date"), subject to the provisions of Paragraphs 2 and 27, and ending on the last
day of the one hundred twentieth (120th) calendar month thereafter, unless
sooner terminated or extended as herein provided.
Notwithstanding the Target Commencement Date, the Term will commence on the
third business day ("Substantial Completion") after issuance of both (a) a
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temporary certificate of occupancy for Landlord's Work, and (b) the Project
Architect's certification that Landlord's Work has been completed substantially
in accordance with the Plans so that Tenant will be able to use the Premises for
the intended purpose, excepting only (i) Tenant's Work (including but not
limited to the kitchen and the modular furniture) and (ii) kitchen-related
mechanical, plumbing and electrical work and finishes ("Landlord's Kitchen
Work") and Punchlist Items, the first of which shall be the obligation of Tenant
and the second of which shall remain the obligation of Landlord. Landlord's
Work shall mean the work to be done by Landlord shown on the Plans, excepting
Tenant's Work. Tenant's Work shall mean the work to be done by Tenant described
in Exhibit B. Landlord shall give Tenant sixty (60) days' prior written notice
of Landlord's best estimate of the expected date of Substantial Completion of
Landlord's Work. The temporary certificate of occupancy and the Project
Architect's certification for Landlord's Work may contain stipulations and
conditions to be fulfilled by Landlord so long as they
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do not materially interfere with Tenant's actual occupancy of the Premises and
Tenant shall be able to use the Premises (including required parking) for the
purposes contemplated by this Lease, which initially shall mean commencement of
Tenant's Work, without material interference with Tenant's use and enjoyment of
the Premises. Tenant shall take possession of the Premises no later than ten
(10) business days after Substantial Completion. Landlord and Tenant shall
execute a written statement specifying (a) the commencement date of the Term and
(b) the termination date of the Term prior to Tenant's taking possession of the
Premises.
If Substantial Completion does not occur by the Target Commencement Date
for any reason other than Tenant's default under this Lease, Landlord shall
continue to use due diligence to complete construction and to deliver possession
of the Premises to Tenant.
Notwithstanding any provision in this Lease to the contrary:
(a) If Substantial Completion does not occur on or before April 17, 2000
(the "Adjusted Delivery Date"), as such date may be extended by reason of Tenant
Delay or Force Majeure, then Tenant's sole and exclusive remedy will be to
receive one (1) day of free rent credit every day from the Adjusted Delivery
Date until the earlier of forty-five (45) days thereafter or the date of
Substantial Completion;
(b) If Substantial Completion does not occur on or before the forty-fifth
(45th) day after the Adjusted Delivery Date, as such date may be extended by
reason of Tenant Delay or Force Majeure, then Tenant's sole and exclusive remedy
will be to receive two (2) days of free rent credit every day from the forty-
sixth (46th) day after the Adjusted Delivery Date until the earlier of the
ninetieth (90th) day thereafter or the date of Substantial Completion; and
(c) If Substantial Completion does not occur on or before the ninetieth
(90th) day after the Adjusted Delivery Date for any reason other than Tenant
Delay, and regardless of Force Majeure, then Tenant shall have the right to
cancel this Lease as its sole and exclusive remedy by notice given to Landlord
on or before ten (10) days thereafter, except that the foregoing election of
remedies shall not prevent Tenant from seeking specific performance of
Landlord's obligations under this Lease.
"Tenant Delay" shall mean any delay in Landlord's commencement or
completion of the Building or the Tenant Improvements that occurs as the result
of: (i) any request by Tenant either that Landlord perform any work in addition
to that required under the Plans or that Landlord delay the commencement or
completion of the Building for any reason, (ii) any change by Tenant to the
Plans after final approval thereof, (iii) any failure of Tenant to respond to
any request for approval required hereunder within the time period specified for
such response or, where no response time is specified, within a reasonable
period of time after the request, (iv) any delay in Landlord's construction of
the Building caused by Tenant's activities in the Premises, or (v) any other act
or omission of Tenant that effectively delays commencement or completion of the
Building,
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including, without limitation, Tenant's default under this Lease. "Force
Majeure" shall mean Landlord's inability to obtain equipment or building
materials despite the timely and diligent effort by Landlord or its contractors
to obtain such equipment and materials, acts of God, fire, earthquake, flood,
rainfall or other weather-caused delays which interfere with construction,
vandalism, acts or delays of public agencies or governmental bodies, or the
authority under the Declaration, any moratorium on the issuance of governmental
approvals or utility service connections or other similar government actions,
strikes, union labor disputes or other union work stoppages, freight embargoes
or inability to obtain basic materials, supplies or fuels, uncommon or unusual
delays in the issuance of governmental permits or approvals, or other events
beyond the reasonable control of Landlord or its contractors.
For each day of delay caused by Tenant Delay or Force Majeure, Landlord's
performance dates (including without limitation the Adjusted Delivery Date) in
this Lease shall be extended for an equivalent period of time, provided that
Landlord notifies Tenant of the occurrence within ten (10) days after Landlord
is aware that the occurrence will delay Landlord's performance.
Tenant shall be entitled to enter the Premises prior to commencement of the
Term without the payment of rent or any other sums under this Lease, subject to
all other requirements and covenants of this Lease, for the sole purpose of
installing Tenant's furniture, fixtures and equipment. Tenant shall use
reasonable care in connection with such entry, and shall not materially
interfere with construction of the Building or other activity of Landlord.
Upon Substantial Completion, Landlord shall commence or continue, as
applicable, and diligently pursue to completion on or before May 1, 2000,
Landlord's Kitchen Work. Landlord's Kitchen Work shall in no way delay
Substantial Completion or defer Tenant's obligation to pay Rent or Operating
Costs.
Upon Substantial Completion, Landlord and Tenant and the Project Architect
shall compile the Punchlist identifying the work to be done to the Premises to
complete Landlord's Work. Within ten (10) days after delivery of the Punchlist,
Landlord shall commence work on the Punchlist Items and diligently pursue them
to completion, in "turnkey" condition. The Punchlist Items shall in no way delay
Substantial Completion or defer Tenant's obligation to pay Rent or Operating
Costs. Punchlist Items shall mean minor details of design, construction,
installation, decoration, or mechanical or other adjustments to Landlord's Work
which do not materially interfere with Tenant's use and enjoyment of the
Premises.
Tenant shall have the exclusive right of possession of the Premises
throughout the Term (and any Renewal Terms), 24 hours each day, subject to
casualty, condemnation, force majeure or other events beyond the control of
Landlord.
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3. MONTHLY BASE RENT:
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Tenant shall pay to Landlord during the Term, without any set-off,
deduction, or abatement (except only as otherwise expressly provided in this
Lease), and net of Operating Costs, Rent in the following sums, payable on the
first day of each month, in advance, at the office of Landlord at 000 Xxxxxx
Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000, or at such other place as
may from time to time be designated by Landlord:
Years Annual Monthly Installments
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1 - 3 $1,516,164 $126,347
4 - 6 $1,657,479 $138,123
7 - 10 $1,812,000 $151,000
If the Term commences on a day other than the first day of a calendar
month, Rent for such month shall be prorated on a daily basis, based on the
number of days in effect during such month, and paid on or before the
commencement of the Term.
4. OPERATING COSTS:
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Tenant shall, for the entire Term, pay to Landlord as additional rent,
without any set-off, deduction or abatement (except only as otherwise expressly
provided in this Lease), one hundred percent (100%) of Operating Costs incurred
by Landlord in the operation, maintenance, repair and management of the
Premises.
"Operating Costs" are hereby defined to include, but shall not be limited
to: (i) real estate taxes and assessments, general or special, ordinary or
extraordinary, foreseen or unforeseen, including, without limitation, ad valorum
taxes, personal property taxes, transit taxes, special or extraordinary
assessments, government levies, substitute taxes, assessments, excises, charges
or fees assessed or levied in lieu of the foregoing ("Taxes and Assessments"),
and expenses and fees incurred in protesting Taxes and Assessments, but
excluding income taxes, franchise taxes, inheritance taxes and gift taxes; (ii)
insurance premiums and costs including deductibles for the all-risk property,
casualty and liability insurance that Landlord maintains under this Lease; (iii)
the yearly amortization of capital costs incurred by Landlord for improvements
or structural repairs to the Premises required to comply with any laws, rules or
regulations of any governmental authority having jurisdiction over the Premises
which are enacted after the commencement date of this Lease, or with any changes
in laws, rules or regulations of any governmental authority having jurisdiction
over the Premises which existed on the commencement date of this Lease, but
which changes were enacted or come into effect after the commencement date of
this Lease, or the application of either, or for the purposes of reducing
Operating Costs, which shall be amortized over the useful life of such
improvements or repairs, as reasonably estimated by Landlord; (iv) the yearly
amortization of capital costs incurred by Landlord for major repairs or
replacements of a non-routine or capital nature ("Capital Repairs") to the
electrical, plumbing, HVAC, mechanical or other systems, which shall be
amortized over the
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useful life of such Capital Repairs, as reasonably estimated by Landlord; (v)
any assessment, fee, or other charge assessed or imposed against Landlord or the
Premises, or any part thereof, pursuant to, or under the authority of, (a) the
Ground Lease, (b) the Subground Lease, (c) the Declaration attached as Exhibit
C, (d) an ASU Research Park property owners' association, or (e) the obligation
for payment of Intergovernmental Agreement Service Fees to City of Tempe; and
(vi) any other reasonable cost, charge, or expense which under generally
accepted accounting principles would be regarded as a maintenance and operating
expense of the Premises.
In no event (except only as provided in the preceding subparagraph or in
Paragraph 8) will Operating Costs include, nor will Tenant be obligated to pay
for, (A) structural improvements, alterations or expenditures, (B) depreciation,
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(C) Landlord's overhead, or management fees unless Tenant selects Landlord to
manage the Premises under a written management agreement, (D) unless caused by
Tenant, repairs, alterations, additions, improvements or replacements made to
rectify or correct any defect in the design, materials or workmanship of the
Building or the Premises, (E) damage and repairs attributable to fire or other
casualty or costs incurred by Landlord in respect to Hazardous Materials that
impact the Premises, provided that this exclusion will not relieve Tenant of any
of its own responsibility under Paragraph 14 of this Lease; (F) damage and
repairs paid for under any insurance policy carried by Landlord in connection
with the Premises; (G) costs incurred due to violation by Landlord of the terms
and conditions of this Lease; (H) legal fees, brokerage commissions, advertising
costs or other related expenses incurred in connection with leasing; (I) legal
or accounting fees; (J) sculptures or artwork; (K) fees and costs incurred in
connection with the defense of Landlord's title or interest in the Premises or
the Building or any part thereof; (L) principal, interest and other amounts paid
pursuant to any financing or refinancing secured by the Premises or the Building
or any part thereof; and (M) Landlord's obligation for rent under the Subground
Lease.
As soon as reasonably practicable prior to the commencement of each
calendar year during the Term, Landlord shall furnish to Tenant an estimate of
Tenant's Proportionate Share of Operating Costs for the ensuing calendar year
and Tenant shall pay, as additional rent hereunder together with each
installment of Rent, one-twelfth (1/12th) of the estimated Operating Costs.
(Landlord shall also furnish to Tenant, prior to Tenant's taking possession of
the Premises, an estimate of Operating Costs for the current calendar year,
which Tenant shall pay in the same manner.) On receipt, Landlord shall provide
Tenant with copies of all real estate tax bills applicable to the Premises. As
soon as reasonably practicable (but in no event later than ninety (90) days)
after the end of each calendar year during the Term, Landlord shall furnish to
Tenant a statement of the actual Operating Costs for the previous calendar year,
and within thirty (30) days thereafter Tenant shall pay to Landlord, or Landlord
to Tenant, as the case may be, the difference between such actual and estimated
Operating Costs paid by Tenant. Tenant's obligation for Operating Costs for the
years in which this Lease commences and terminates shall be prorated based upon
the dates of commencement and termination of the Term.
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The annual statement of actual Operating Costs shall be certified to be
correct by Landlord. Landlord shall maintain full and accurate books and
records with respect to all Operating Costs for a period of not less than one
(1) year.
Tenant shall have the right during Landlord's normal business hours, and
upon reasonable prior notice to Landlord, to inspect and audit Landlord's books
and records with respect to Operating Costs no later than the first (1st)
anniversary of Tenant's receipt of the statement of Operating Costs in question.
Tenant may contest at its sole expense the amount or validity of Taxes and
Assessments against the Premises by appropriate proceedings and by paying Taxes
and Assessments under protest prior to delinquency if Landlord declines to
protest Taxes and Assessments by written notice to Tenant sent no later than ten
(10) days before delinquency.
5. ADDITIONAL TAXES:
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Tenant shall pay as additional rent to Landlord, together with each
installment of Rent, Operating Costs and any other payment made by Tenant under
this Lease, the amount of any gross receipts tax, transaction privilege or sales
tax or similar tax (but excluding therefrom any income tax) payable, or which
will be payable, by Landlord, by reason of the receipt of the Rent, Operating
Costs and any other payment made by Tenant under this Lease.
6. ASSIGNMENT, SUBLETTING:
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Except for an assignment or subletting to an affiliate or a wholly owned
subsidiary of Tenant (a "Tenant Affiliate"), Tenant may not assign this Lease,
or sublet all or any part of the Premises, without the Landlord's prior written
consent, which consent shall not be unreasonably withheld, or delayed. Tenant
shall provide Landlord with satisfactory information on the experience and
business history of any proposed assignee or sublessee, as well as financial and
credit information and references to enable Landlord to determine the financial
responsibility and character of the proposed assignee or sublessee, provided
that such information shall not be required of a Tenant Affiliate.
Notwithstanding the foregoing, it shall be a condition to any assignment or
subletting (including, without limitation, one to a Tenant Affiliate) that the
assignee or sublessee shall assume in writing the obligations of Tenant under
this Lease, and such assignment or subletting shall not relieve Tenant of its
obligations to Landlord under this Lease. If Tenant is able to sublease all or
a portion of the Premises for rent in excess of the Rent payable under this
Lease to Landlord, the premium will be for the account of Tenant.
7. UTILITIES; SATELLITE DISH:
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Landlord shall provide mains and conduits to supply phone, water,
electricity (including main panel with breakers) and sanitary sewage to the
Premises as shown on
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the Plans, exclusive of Tenant's Work. Tenant shall pay, when due, all charges
for sewer usage, garbage disposal, refuse removal, water, electricity, telephone
and/or other utility services or energy source furnished to the Premises during
the Term, or any renewal or extension thereof.
Tenant may install and maintain a satellite dish on the roof of the
Building in conformity with the Declaration and with applicable laws, ordinances
and codes. Tenant shall not damage the Building and if damage shall occur
Tenant shall repair the Building promptly at its own cost. Tenant shall remove
the satellite dish within ten (10) days following the expiration or termination
of this Lease. Installation, maintenance and removal of the satellite dish
shall not violate the terms of any roof warranty.
8. CARE AND REPAIR OF PREMISES:
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Tenant shall, at all times throughout the Term, including all renewals and
extensions, and at its sole expense, keep and maintain the interior and the
exterior of the Building and the rest of the Premises in good repair and in a
clean, safe, orderly, sanitary and first class condition in compliance with all
applicable laws, codes, ordinances, rules and regulations, free of any
accumulation of dirt and rubbish, and Tenant shall arrange its own trash
removal. Tenant's obligations shall include, but not be limited to, the
maintenance, repair, and replacement, if necessary, of interior lighting, HVAC,
parking lot and driveways located on the Premises (including periodic
resurfacing as needed), sidewalks, loading docks and exterior light fixtures,
landscaping, electrical and plumbing systems (including without limitation sewer
lines), fixtures and equipment, restrooms, interior walls and ceilings,
partitions, doors and windows, regular painting of the interior and the exterior
of the Building, and the replacement of all broken glass from doors and windows
unless breakage is due to a defect in the design, materials or workmanship of
the Building (excluding Tenant's design errors), to a breach of Landlord's own
repair and maintenance obligations under this Lease, or to Landlord's
negligence. Tenant shall cause to be performed by a competent service company,
preventive maintenance of the HVAC units serving the Premises as recommended by
the equipment manufacturer. Tenant shall also be responsible for the routine
and ordinary service and maintenance of the roof including reasonable preventive
care, but excluding Capital Repairs. The term "repairs" shall include ordinary
and customary replacements or renewals when reasonably necessary, and all
repairs made by Tenant shall be equal in quality and class to the original work.
Notwithstanding the foregoing, Tenant will not be required to perform any
Capital Repairs, which shall be performed by Landlord, but Tenant will pay its
share of the cost thereof in accordance with Paragraph 4.
Tenant shall not be required to perform or pay for any structural
expenditure on the Premises in order to comply with (i) any law, ordinance, rule
or regulation; or (ii) with any requirement of Landlord's insurance rating
organization, unless the same is required as the direct result of Tenant's
particular use of the Premises (as opposed to Tenant's mere occupancy of the
Premises or Tenant's conduct of business, generally),
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except to the extent that Tenant is required to pay Tenant's Proportionate Share
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of Capital Repairs or amortized capital expenditures under Paragraph 4.
If Tenant fails, refuses or neglects to maintain or repair the Premises as
required in this Lease for ten (10) days after notice shall have been given
Tenant, Landlord may make such repairs without liability to Tenant for any loss
or damage that may accrue to Tenant's merchandise, fixtures or other property or
to Tenant's business by reason thereof (except that Landlord shall be liable for
its own negligence or willful misconduct), and upon completion thereof, Tenant
shall pay to Landlord all costs plus eight percent (8)% for overhead incurred by
Landlord in making such repairs within ten (10) days after Tenant receives from
Landlord the xxxx therefor.
Landlord shall be responsible for maintenance, repair and replacement of
the structural elements of the roof and shall keep the foundation (concrete slab
floor), exterior walls, and all other structural portions of the Premises and
the Building (not otherwise designated to be maintained and repaired by Tenant)
in good repair and in a clean, safe, sanitary and first class condition and in
compliance with all applicable laws, codes, ordinances, rules and regulations,
and if necessary or required by proper governmental authority, make
modifications or replacements thereof, except that Landlord shall not be
required to make any such repairs, modifications or replacements which become
necessary or desirable by reason of the negligence or willful misconduct of
Tenant, its agents, servants or employees, by reason of anyone illegally
entering or upon the Premises, which repairs, modifications or replacements
shall be made by Tenant at its sole expense. Notwithstanding any provision
herein to the contrary, Landlord shall perform all Capital Repairs, but Tenant
will pay its share of the costs thereof in accordance with Paragraph 4.
Landlord shall also remedy, at Landlord's sole expense, any damage to the
Premises caused by the willful act or negligence of Landlord or its agents.
9. COVENANTS OF TENANT:
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Tenant agrees that it shall:
(a) Be subject to and not violate (i) reasonable and customary rules and
regulations put in effect by Landlord (or by Landlord's own lessor), provided
that Tenant has received reasonable prior notice of the same, for the general
safety of Landlord and the occupants of the Building and for the integrity and
reputation of the Premises; and (ii) the restrictions in the Declaration and any
covenants, conditions or restrictions applicable to ASU Research Park now or
hereafter applicable to the Premises ("Restriction(s)"), but Landlord shall
neither adopt nor affirm any Restriction, whether in the form of a change or
addition to existing Restrictions or new Restrictions adopted subsequent to the
date of this Lease that materially interferes with Tenant's use and enjoyment of
the Premises or materially abridges Tenant's rights under this Lease.
Enforcement of Restrictions in force as of the date of this Lease is beyond the
scope of the foregoing proscription.
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(b) Give Landlord access to the Premises at all reasonable times, and upon
reasonable prior notice (but not less than one (1) business day, except in case
of emergency) from Landlord, without change or diminution of rent so long as
Landlord complies with the terms of this Lease, to enable Landlord to examine
the same and to make such repairs, additions and alterations as Landlord is
entitled or required to make under the terms of this Lease, and to exhibit the
Premises to prospective purchaser of the Premises or lenders thereon; and during
the one hundred twenty (120) days prior to the expiration of the term, to
exhibit the Premises to prospective tenants. Landlord may place upon the
Building any "For Sale" and "For Lease" signs. Landlord will schedule such
entries with Tenant and will use reasonable efforts to minimize disruption of
Tenant's business caused by such entry and Landlord will comply with Tenant's
reasonable security procedures in connection with such entry. Tenant will have
the right to be present whenever Landlord comes on the Premises under this
paragraph.
(c) Upon the expiration or earlier termination of this Lease in any manner
whatsoever, excepting only termination because of Tenant's default under this
Lease (unless Landlord elects the contrary in writing), remove Tenant's
furniture, fixtures and equipment, generators, computers, telephones and
switches, and telecommunications equipment (to the extent the same was installed
by Tenant) and Tenant's other goods, inventory and effects and those of any
other person claiming under Tenant, and quit and deliver the Premises to
Landlord peaceably and quietly in as good order and condition as the same are
now in or hereafter may be put in by Landlord or Tenant, reasonable use and wear
thereof, and repairs which are Landlord's obligation, excepted. Furniture,
fixtures, equipment, and all other property not removed by Tenant at the
termination of this Lease shall be considered abandoned, and Landlord may
dispose of the same as it deems expedient.
(d) Not place signs on or about the Premises without first obtaining
Landlord's written consent thereto, which consent will not be unreasonably
withheld or delayed. All signs must comply with applicable laws, ordinances,
and regulations, the Declaration and Landlord's reasonable sign criteria.
(e) Not overload, damage or deface the Premises or do any act which may
make void or voidable any insurance on the Premises or the Building, or which
may render an increased or extra premium payable for insurance.
(f) Not make any alterations or additions to the Premises the cost of
which would exceed $15,000.00 without obtaining the prior written approval of
the Landlord, which shall not be unreasonably withheld or delayed. All
alterations, additions or improvements (including carpeting or other floor
covering which has been glued or otherwise affixed to the floor) which may be
made by Landlord upon the Premises, except movable office furniture, equipment,
generators, computers, telephone and telecommunication systems, shall be the
property of Landlord, and shall remain upon and be surrendered with the
Premises, as a part thereof, at the termination of this Lease.
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(g) Keep the Premises free from any mechanics', materialmen's, contractors'
or other liens arising from, or any claims for damages growing out of, any work
performed, materials furnished or obligations incurred by or on behalf of
Tenant. Provided, however, that Tenant shall have the right to bond over and
contest any such lien, in which event such lien shall not be considered a
default under this Lease until the existence of the lien has been finally
adjudicated and all appeal periods have expired. Tenant shall indemnify,
defend, and hold harmless Landlord for, from and against any such lien, or claim
or action thereon, reimburse Landlord within ten (10) business days after demand
therefor by Landlord for costs of suit and reasonable attorneys' fees incurred
by Landlord in connection with any such lien, claim or action, and, upon written
request of Landlord, provide Landlord with a bond in an amount and under
circumstances necessary to obtain a release of the Premises from such lien.
Notwithstanding the foregoing, Tenant will have no responsibility for the liens
of contractors or others hired exclusively by and for Landlord.
(h) Indemnify, defend and hold Landlord harmless for, from and against all
claims, obligations, liabilities, costs, expenses and reasonable attorneys' fees
and court costs which Landlord may suffer or incur by reason of Tenant's breach
of this Lease, or by reason of the negligence or willful misconduct of Tenant or
its employees, agents, invitees or licensees on or about the Premises. Tenant
shall comply with all applicable laws, regulations, ordinances and other legal
requirements in connection with its use and occupancy of the Premises.
10. PARKING AND DRIVES:
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At no additional charge to Tenant, Landlord will provide Tenant with full-
size vehicular parking spaces appurtenant to the Building at a ratio of five (5)
for every 1,000 square feet in the Premises. Landlord has no obligation to
provide covered parking. The parking spaces will be available to Tenant twenty-
four (24) hours a day, during each day of the Term, subject to force majeure,
casualty, condemnation and other similar events beyond Landlord's reasonable
control. Use of driveways and parking facilities is subject to such customary
and reasonable rules and regulations as Landlord may impose. Landlord will be
under no obligation to police the driveways and parking lots. Tenant may employ
all reasonable and lawful means to police these areas and prevent unauthorized
visitors from using same including, without limitation, employees of businesses
adjacent to the Premises, which means may include towing to the extent lawful.
Tenant further agrees not to use, or permit the use by its employees, the
driveways, parking or truck-loading areas for the overnight or any other
storage, or for the maintenance or repair or cleaning, of automobiles or other
vehicles without the written permission of Landlord. Tenant shall not place or
store goods, materials, supplies, equipment, automobiles or other vehicles, or
other property of Tenant in the driveways or parking lots or anywhere else in
the Premises or in the Building, excepting wholly within the Premises.
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11. CASUALTY LOSS:
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Subject to the qualifications in this Paragraph 11, in case of damage to
the Premises or the Building by fire or other casualty, Tenant shall give
immediate notice to Landlord, who shall then cause the damage (including any
damage to the Tenant Improvements, but excluding Tenant's Work) to be repaired
with reasonable speed, at the expense of the Landlord, subject to reasonable
delays caused by Force Majeure and other similar delays beyond the reasonable
control of Landlord. Rent and other charges payable by Tenant hereunder shall
xxxxx in proportion to the percentage of the square feet in the Premises that is
damaged and unusable for Tenant's intended purpose during any period in which,
by reason of such casualty, Tenant reasonably determines that there is
substantial interference with the operation of Tenant's business in the
Premises. Such abatement shall continue for the period commencing with the date
of such damage or destruction and ending with the date that business may be
fully resumed on the Premises, as reasonably determined by Tenant.
In the event the cost to repair the damage shall exceed twenty-five percent
(25%) of the full replacement value of the Building, or if the damage shall be
so extensive that repairs cannot be completed within one hundred twenty (120)
days from the date of issuance of required permits (permitting to take no more
than 60 days and Landlord to use diligent efforts to obtain same), then either
Landlord or Tenant shall have the right to terminate this Lease, as of the date
of such damage, by notice given to the other party within thirty (30) days
following the casualty loss. If this Lease is terminated, Rent and Operating
Costs shall be adjusted to the date of such damage and Tenant shall vacate the
Premises.
Tenant hereby waives any statutory right to terminate this Lease or to have
a reduction of rent in the event of casualty loss or destruction pursuant to
A.R.S. (S)33-343, the rights of Tenant in such instance to be determined by this
Paragraph 11. Notwithstanding the foregoing two paragraphs, Landlord shall have
no obligation to repair or rebuild the Premises if the casualty loss occurs in
the last twelve (12) months of the Term.
In the event that Landlord elects to terminate this Lease, Tenant shall
have the right but no obligation, by express written election within ten (10)
days following receipt of Landlord's notice to terminate, to perform the repair
or restoration of the Premises utilizing all insurance proceeds (to the extent
of the actual costs of restoration) received by Landlord as a result of such
casualty loss. Proceeds will be disbursed in a commercially reasonable manner
that jointly protects the interests of Landlord and Tenant on receipt of lien
waivers compliant with Arizona law. Restoration shall be in compliance with the
provisions of this Lease including the provisions in Paragraph 30 governing
construction of expansion of the Building (unless by their very nature
inapplicable).
Notwithstanding the proceeding paragraph, Landlord shall have the right in
its sole discretion to rescind its termination and perform the repair or
restoration itself by
-11-
express written election given to Tenant within five (5) days following receipt
of Tenant's election to perform the repair or restoration of the Premises.
12. CONDEMNATION:
------------
If all or a portion or the Premises is taken by eminent domain or
transferred under threat of such taking, this Lease shall automatically
terminate as of the date of taking only with respect to the portion of the
Premises so taken. If a portion of the Premises is taken by eminent domain such
that the Premises are no longer suitable for Tenant's intended use, in Tenant's
reasonable discretion, or if ten percent (10%) or more of the vehicular parking
spaces is taken by eminent domain and Landlord is unable or unwilling to provide
reasonably equivalent substitute parking within ninety (90) days after Tenant's
loss of use of the parking spaces taken, Tenant shall have the right to
terminate this Lease as of the date of taking by giving written notice thereof
to Landlord within ten (10) days after such date of taking. If Tenant does not
elect to terminate this Lease, Landlord shall, at its expense, promptly restore
the Premises (including the Tenant Improvements), exclusive of any improvements
or other changes made by Tenant, to as near the condition which existed
immediately prior to the date of taking as reasonably possible, and the rent and
other charges payable under this Lease shall xxxxx in the same manner as
described in Paragraph 11.
All damages awarded for a taking of the Premises under the power of eminent
domain shall belong to and be the exclusive property of Landlord, whether such
damages be awarded as compensation for diminution in value of the leasehold
estate hereby created or to the fee of the Premises; provided, however, that
Landlord shall not be entitled to any separate award made to Tenant for the
value and cost of Tenant's personal property, fixtures and moving expenses.
13. MUTUAL RELEASE/WAIVER OF SUBROGATION; INSURANCE:
-----------------------------------------------
Landlord and Tenant each hereby release the other from any and all
liability or responsibility for any direct or consequential loss, injury or
damage during the Term, to the extent such loss, injury or damage is covered by
the terms of any property and casualty insurance maintained by Landlord or
Tenant. Inasmuch as the above mutual waivers will preclude the assignment of
any claim by way of subrogation (or otherwise) to an insurance company (or any
other person), each party hereto agrees if required by such policies to give to
each insurance company which has issued to it all risk and other property
insurance, written notice of the terms of the mutual waivers, and to have such
policies properly endorsed, if necessary, to prevent the invalidation of
coverage by reason of the waivers.
Tenant shall not do anything in or about the Premises which will increase
insurance rates on the Premises. If Landlord shall consent to such use, Tenant
agrees to pay as additional rental any increase in premiums for all risk
insurance resulting from the business carried on in the Premises by Tenant.
Tenant shall, at its own expense, comply with the requirements of insurance
underwriters and insurance rating bureaus
-12-
and governmental authorities having jurisdiction, except to the extent this
Lease requires Landlord to comply with the same.
Tenant shall maintain in full force and effect during the term hereof, a
policy of public liability insurance under which Landlord and Tenant shall be
named insureds. The minimum limits of liability of such insurance shall be
$2,000,000.00 combined single limit as to bodily injury and property damage.
Tenant shall also carry at its own cost (and for the benefit of Tenant only)
business interruption insurance with coverage and terms that are commercially
reasonable.
Tenant may provide any coverage required under this Lease through blanket
policies.
Landlord shall, during the Term, maintain the following insurance (the
"Property Coverage"): Property insurance insuring the Building and the Premises
(including all installations and fixtures, but excluding Tenant's Work and its
personal property) against loss or damage due to the perils of fire and other
casualties covered within the classification of fire and extended coverage,
vandalism, malicious mischief, special extended coverage (All Risk), sprinkler
leakage and water damage. Such policies shall provide for loss payable to
Landlord or its lender. Such policies shall include coverage equal to the full
replacement cost of the Building, including the Premises (replacement cost new,
including coverage for the cost of debris removal and coverage for the cost of
complying with building, zoning, safety, land use and other laws as a result of
any casualty or loss) as to prevent the application of co-insurance provisions.
Such policies may include rent loss and difference-in-conditions coverage.
Landlord grants to Avnet, Inc. and its Tenant Affiliates, but not to their
assigns or sublessees, the privilege to provide the Property Coverage, which
shall meet the requirements of this Paragraph 13.
Insurance required to be carried by Landlord or by Tenant hereunder shall
be obtained from companies maintaining at the commencement of the policy term a
"General Policyholders Rating" of at least B+ and a financial rating of at least
Class V, as set forth in the most current issue of "Best's Insurance Guide."
The party with a duty to maintain insurance hereunder (the "Insuring
Party") agrees to deliver to the other party certificates of insurance
evidencing such coverage. Each policy shall contain a provision requiring
thirty (30) days' written notice to both parties before cancellation or a
modification that would be adverse to the interest of either party can be
effected. The Insuring Party shall provide the other party, at least fifteen
(15) days prior to the expiration of such policies, with evidence of renewals or
"insurance binders" evidencing renewal thereof.
-13-
14. HAZARDOUS MATERIALS:
-------------------
(a) As used in this Lease, the term "Hazardous Material" means any
explosives, radioactive materials, or substances defined as or included in the
definition of "hazardous substances", "hazardous wastes", "infectious wastes",
"hazardous materials" or "toxic substances" now or subsequently regulated under
any past, present, or future federal, state or local laws or regulations or
ordinances ("Hazardous Materials Laws") including, without limitation, oil,
petroleum-based products, medical wastes, paints, solvents, lead, mercury,
cyanide, DDT, acids, pesticides, asbestos, radon, PCBs, similar compounds, and
other contaminants.
(b) Excepting the reasonable and prudent use of materials essential to the
processes in Tenant's operations, and the incidental storage thereof, which
shall be in full compliance with all Hazardous Material Laws, Tenant shall not
cause or permit any Hazardous Material to be generated, produced, brought upon,
used, stored, treated, discharged, released, spilled or disposed of on, in,
under or about the Premises, or into the groundwater or the environment, by
Tenant, its affiliates, sublessees, assignees, or the employees, agents,
invitees, licensees, contractors or representatives of any of the foregoing.
Tenant shall conduct no business on the Premises whose primary purpose is the
generation, production, use, storage, treatment, disposal, sale, conveyance or
transfer of any Hazardous Material. The use of any Hazardous Material on the
Premises shall be a secondary function incidental to Tenant's business. Tenant
shall not cause or permit any above-ground or underground storage tank or
container to be located on, in, under or about the Premises without Landlord's
prior written consent, full compliance with all Hazardous Materials Laws, and
adherence to all other reasonable requirements of Landlord protecting the
Premises, the groundwater and the environment.
(c) Tenant shall indemnify, defend and hold Landlord harmless for, from
and against all actions (including, without limitation, remedial or enforcement
actions of any kind, administrative or judicial proceedings, and orders or
judgments arising out of or resulting therefrom), costs, claims, damages,
expenses (including, without limitation, attorneys', consultants' and experts'
fees, court costs and amounts paid in settlement of any claims or actions),
fines, forfeitures or other civil, administrative or criminal penalties,
injunctive or other relief (whether or not based upon personal injury, property
damage, or contamination of, or adverse effects upon, the environment, water
tables or natural resources), liabilities or losses arising from a breach of the
provisions of this Paragraph 14 by Tenant, or from any release of a Hazardous
Material on, in, under or about the Premises, or into the groundwater or the
environment, by Tenant, its affiliates, sublessees, assignees, or the employees,
agents, invitees, licensees, contractors or representatives of any of the
foregoing.
(d) In the event that Hazardous Materials are discovered upon, in, or
under the Premises, and any governmental agency or entity having jurisdiction
over the Premises or any Hazardous Material Law requires the removal or
remediation of such Hazardous Materials, (i) Tenant shall be responsible for
removing and remediating
-14-
those Hazardous Materials arising out of (x) any breach of the provisions of
clause (b) above or (y) any act or omission of Tenant, it affiliates,
sublessees, assignees or the employees, agents, invitees, licensees, contractors
or representatives of any of the foregoing on or about the Premises, and (ii)
Landlord shall be responsible for removing and remediating any Hazardous
Materials released on, in, under or about the Premises by Landlord or Landlord's
employees, agents, invitees, licensees, contractors or representatives, at
Landlord's expense. Notwithstanding the foregoing, Tenant shall not take any
remedial action in or about the Premises without first notifying Landlord of
Tenant's intention to do so and affording Landlord the opportunity to protect
Landlord's interest with respect thereto.
(e) Tenant immediately shall notify Landlord in writing of: (i) any spill,
release, discharge or disposal of any Hazardous Material in, on or under the
Premises or any portion thereof; (ii) any enforcement, cleanup, removal or other
governmental or regulatory action instituted, contemplated, or threatened (if
Tenant has notice thereof) pursuant to any Hazardous Materials Laws; (iii) any
claim made or threatened by any person against Tenant, the Premises relating to
damage, contribution, cost recovery, compensation, loss or injury resulting from
or claimed to result from any Hazardous Materials; and (iv) any reports made to
any governmental agency or entity arising out of or in connection with any
Hazardous Materials in, on, under or about or removed from the Premises,
including any complaints, notices, warnings, reports or asserted violations in
connection therewith. Tenant also shall supply to Landlord as promptly as
possible, and in any event within five (5) business days after Tenant first
receives or sends the same, copies of all claims, reports, complaints, notices,
warnings or asserted violations relating in any way to the Premises or Tenant's
use or occupancy thereof.
(f) Without limiting the foregoing indemnity, Tenant shall be responsible
to pay for, or reimburse Landlord for, the cost of any investigations, studies,
cleanup or corrective action initiated or undertaken on account of any action or
inaction of Tenant in violation of any Hazardous Materials Laws at or affecting
the Premises, or by reason of any other act or omission of Tenant in breach of
this Lease.
(g) Tenant will provide Landlord with a copy of any environmental audit,
study or report concerning the Premises or any part thereof within the
possession or control of Tenant.
(h) Landlord will permit Tenant to review Landlord's environmental audit
and studies of the Premises before the execution of this Lease.
(i) Landlord represents and warrants to Tenant that the Building contains
no Hazardous Materials as a result of Landlord's development of the Premises,
excepting insubstantial amounts thereof, if any, in quantities not having
materially adverse effects on the environment or upon the health and safety of
persons. Landlord is making no representation or warranty to Tenant in respect
to the Land other than the assurance that Landlord has not discharged, released,
spilled or disposed of a Hazardous Material on, in, under or about the Land.
Any claim by Tenant under this subparagraph (i) shall
-15-
be presented to Landlord, in writing, on or before the third (3rd) anniversary
of the date of Substantial Completion or be deemed waived.
(j) The respective rights and obligations of Landlord and Tenant under this
Paragraph 14 shall survive the expiration or termination of this Lease or
Tenant's non-occupancy of the Premises.
15. DEFAULT; WAIVER OF TRIAL BY JURY:
--------------------------------
In the event Tenant fails to perform any of the terms or conditions hereof
(but excluding the payment of rental or other monetary sums due under this
Lease) and such failure continues for thirty (30) days after written notice of
default from Landlord, provided, however, that if such failure cannot reasonably
be corrected, even by prompt and diligent action, within thirty (30) days, and
if Tenant commences curing such failure within such 30-day period and thereafter
diligently pursues the cure to completion, Tenant shall have a reasonable period
of time after the thirtieth (30th) day to continue curing, or in the event
Tenant fails to pay any rental or other sum of money due hereunder and such
failure continues for ten (10) days after notice thereof to Tenant, time being
declared to be of the essence, and no further notice of default being required,
Landlord may resort to any and all legal remedies or combination of remedies
which Landlord may desire to assert including but not limited to one or more of
the following: (1) re-enter the Premises in the manner provided by law, (2)
declare this Lease at an end and terminated, (3) xxx for the rent due and to
become due under the Lease, and for any damages sustained by Landlord and (4)
continue this Lease in effect and relet the Premises on such terms and
conditions as Landlord may deem reasonably advisable with Tenant remaining
liable for the monthly rent and all other sums payable under this Lease, plus
the reasonable cost of obtaining possession of the Premises and of reletting the
Premises, including broker's commissions, and of any repairs and alterations
necessary to prepare the Premises for reletting, less the rentals actually
received from such reletting, if any. Landlord shall use reasonable efforts to
mitigate damages and relet the Premises. Any recovery of future rent from
Tenant, will be discounted by applying the Federal Reserve rate of the Federal
Reserve Bank in San Francisco at the time of award, plus one percent (1%).
No action of Landlord shall be construed as an election to terminate the
Lease or to accept a surrender of the Premises unless written notice of such
intention be given to Tenant. Tenant agrees to pay as additional rental all
reasonable attorneys' fees and other costs and expenses incurred by Landlord in
enforcing any of Tenant's obligations under this Lease. The mention in this
Lease of any remedies shall not be deemed to be a waiver by Landlord of any
other or further remedies available at law or in equity or under other
provisions of this Lease, all of which are expressly preserved and shall be
available to Landlord including, without limitation, Landlord's statutory lien
rights.
The prevailing party in any dispute arising under this Lease shall be
entitled to recover from the other party all reasonable attorneys' fees and
other costs and expenses incurred by the prevailing party, such fees to be set
by a court and not a jury.
-16-
Any amount due from either party hereunder which is not paid when due shall bear
interest at the rate of twelve percent (12%) per annum from the due date until
paid. The mention in this Lease of any remedies shall not be deemed to be a
waiver by Tenant of any other or further remedies available at law or in equity
from time to time, all of which are expressly preserved and shall be available
to Tenant.
Neither acceptance of Rent by Landlord, nor acceptance of partial payment
of Rent or other partial performance, with or without knowledge of breach, nor
failure of Landlord to take action on account of any breach hereof or to enforce
its rights hereunder shall be deemed a waiver of any breach, and absent written
notice or consent, the breach shall be a continuing one.
If Landlord defaults under this Lease, Tenant shall give Landlord written
notice of the default and Landlord shall have (a) ten (10) days to correct the
same, if the default can be corrected by the payment of money, and (b) thirty
(30) days to correct the same, if the default cannot be corrected by the payment
of money, provided that if a non-monetary default cannot reasonably be cured
within such 30-day period, and if Landlord is proceeding with due diligence to
cure the default, Landlord will have such additional time as may be reasonably
necessary to cure the default so long as Landlord promptly commences such cure
within the 30-day period. The holder of any mortgage or deed of trust on the
Premises shall have the right to cure any default of Landlord with equal cure
periods. Such lender's cure period will begin to run upon its receipt of
written notice from Tenant setting forth the alleged default of Landlord,
provided Landlord or such lender has given Tenant written notice of the lender's
address. If Landlord or its lender fails to pay any amounts due Tenant or cure
any other default of Landlord within the applicable cure period, then Tenant may
elect to implement any and all rights and remedies available to it under Arizona
law, excepting only the right of offset or deduction, or termination of this
Lease, unless such remedy is expressly conferred herein, and in addition, Tenant
may cure any such default on Landlord's behalf, and all costs expended by Tenant
in doing so shall be paid by Landlord upon demand.
Tenant agrees to look solely to Landlord's interest in the Premises for the
recovery of any judgment from Landlord or the payment of any obligation,
liability or claim under, arising out of, or relating to this Lease, it being
hereby agreed that, except to the extent of Landlord's interest in the Premises,
Landlord, the assets of Landlord, or if Landlord is a partnership, its partners
whether general or limited, or if Landlord is a corporation, Landlord, its
directors, officers or shareholders, or if Landlord is a limited liability
company, Landlord and its members and managers shall never be liable for any
judgments, claims, obligations or liabilities under, arising out of, or relating
to this Lease.
Landlord and Tenant, each being fully informed by their respective counsel
of the legal consequences, waive the right to trial by jury.
-17-
16. NOTICES:
-------
All bills, statements, notices or communications which Landlord or Tenant
may desire or be required to give to the other shall be deemed sufficiently
given or rendered if in writing and either delivered to the recipient
personally, or sent by a nationally recognized overnight courier service, or
sent by registered or certified U.S. mail, postage prepaid, return receipt
requested, addressed to the recipient at the address set forth below, and the
time of the giving of such notice or communication shall be deemed to be (i) the
time when the same is delivered to the recipient, if delivered personally, (ii)
the next business day, if sent by overnight courier, or (iii) three (3) business
days after deposit in the mail as herein provided. Notices shall be sent to the
following addresses:
Tenant:
Avnet, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Real Estate Department
with a copy to:
Avnet, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Legal Department
Landlord:
Xxxx Companies US, Inc.
0000 Xxxx Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxxxxxxxx
with a copy to:
Xxxx X. Xxx
Hienton Fry P.C.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Any notice by Tenant to Landlord must be given in the same manner, but addressed
to Landlord at the address set forth above, or in case of subsequent change upon
notice given, to the latest address furnished.
-18-
17. HOLDING OVER:
------------
Should Tenant continue to occupy the Premises after expiration of the Term
with Landlord's express written consent, such tenancy shall be from month-to-
month at a rental rate equal to one hundred twenty-five percent (125%) of the
rate in force immediately preceding expiration of the Term, and in no event for
any longer term. If Tenant's holdover is without Landlord's express written
-------
consent, Landlord may re-enter and take possession of the Premises immediately
and have all other remedies set forth in this Lease, in which event Tenant shall
pay for each day of occupancy after the expiration of the Term a sum equal to
one hundred fifty percent (150%) of the monthly rent for the last month of the
Term, prorated on a daily basis and based upon a thirty-day month.
18. SUBORDINATION AND NONDISTURBANCE:
--------------------------------
This Lease and the rights of Tenant shall be and are subject and
subordinate at all times to the lien of any first mortgage or deed of trust now
or hereafter in force against the Premises, provided, however, that (i) in the
case of any mortgage or deed of trust encumbering the Premises as of the date of
this Lease, Landlord will obtain, prior to the commencement of the Term, an
agreement between the beneficiary or mortgagee thereof and Tenant that so long
as no default exists hereunder and Tenant attorns to Landlord's successor
pursuant to the provisions of this Lease, no termination of such encumbrance (or
any proceeding in connection therewith) shall disturb Tenant's possession of the
Premises and this Lease shall remain in full force and effect; and (ii) in the
case of any first mortgage or deed of trust encumbering the Premises after the
date hereof, the beneficiary or mortgagee thereof agrees, either in such
encumbrance or in a separate agreement with Tenant, that so long as no default
exists under this Lease and Tenant attorns pursuant to Landlord's successor
pursuant to the provisions of this Lease, no foreclosure of such encumbrance (or
any proceeding in connection therewith) shall disturb Tenant's possession of the
Premises and this Lease shall remain in full force and effect. Tenant at any
time and from time to time, upon not less than ten (10) business days' prior
written notice from Landlord, shall execute such further instruments confirming
the subordination of this Lease to the lien of any such first mortgage or deed
of trust as shall be requested by Landlord.
19. ESTOPPEL CERTIFICATE:
--------------------
Tenant shall at any time and from time to time, upon not less than ten (10)
business days' prior written notice from Landlord, execute, acknowledge and
deliver to Landlord and any other parties designated by Landlord, a statement in
writing certifying (a) that this Lease is in full force and effect and is
unmodified and that Tenant has taken possession of the Premises and has accepted
and approved the condition of the Premises and the Tenant Improvements (or, if
modified, or disapproved, stating the nature of such modification or
disapproval), (b) the date to which the rental and other charges payable
hereunder have been paid in advance, if any, (c) that there are, to Tenant's
actual knowledge, no uncured defaults on the part of Landlord hereunder (or
-19-
specifying such defaults if any are claimed), and (d) any additional statement
reasonably included in a reputable institutional lender's estoppel certificate
in similar transactions. Such statement may be furnished to and relied upon by
any prospective purchaser, tenant or encumbrancer of all or any portion of the
Premises and shall include any further statement that a good faith purchaser,
tenant or encumbrancer would reasonably require.
Landlord shall at any time and from time to time, upon not less than ten
(10) business days' prior written notice from Tenant, execute, acknowledge and
deliver to Tenant and any other parties designated by Tenant, a statement in
writing certifying (a) that this Lease is in full force and effect and is
unmodified (or, if modified, stating the nature of such modification), (b) the
date to which the rental and other charges payable hereunder have been paid in
advance, if any, and (c) that there are, to Landlord's actual knowledge, no
uncured defaults on the part of Tenant hereunder (or specifying such defaults if
any are claimed), and (d) any additional statement commonly included in a
reputable institutional lender's estoppel certificate in similar transactions.
Such statement may be furnished to and relied upon by any prospective sublessee,
assignee or encumbrancer of all or any portion of Tenant's interest in the
Premises and shall include any further statement that a good faith sublessee,
assignee or encumbrancer would reasonably require.
20. SERVICE CHARGE:
--------------
On the second (2nd) and any subsequent monetary default by Tenant in any
given year of the Term, Tenant shall pay a service charge equal to two percent
(2%) per month (or any portion thereof) on Rent or other monetary sum payable by
Tenant hereunder which is not paid within ten (10) days from the date of
Tenant's receipt of notice of default under Paragraph 15.
21. BINDING EFFECT:
--------------
The word "Tenant", wherever used in this Lease, shall be construed to mean
tenants in all cases where there is more than one tenant, and the necessary
grammatical changes required to make the provisions hereof apply to
corporations, partnerships, limited liability companies, or individuals, men or
women, shall in all cases be assumed as though in each case fully expressed.
Each provision hereof shall extend to and shall, as the case may require, bind
and inure to the benefit of Landlord and Tenant and their respective heirs,
legal representatives, successors and assigns, provided that this Lease shall
not inure to the benefit of any heir, legal representative, transferee or
successor of Tenant except as expressly provided in this Lease.
Landlord may assign its right, title, and interest in the Premises and
under this Lease, and such assignment shall thereupon automatically terminate
Landlord's future obligations under this Lease, provided that the assignee shall
assume, in writing, the Landlord's obligations under this Lease arising after
the date of assignment.
-20-
22. SECURITY DEPOSIT:
----------------
Landlord has agreed to waive the security deposit.
23. COVENANT OF QUIET ENJOYMENT:
---------------------------
So long as Tenant is not in default under this Lease, Tenant's possession
of the Premises will not be disturbed by Landlord, or by anyone claiming by,
through, or under Landlord. Notwithstanding the foregoing, foreclosure or other
enforcement of Landlord's lender's lien shall not be excluded from this express
covenant of quiet enjoyment. This express covenant of quiet enjoyment shall be
exclusive and supersede any implied covenant of quiet enjoyment.
24. BROKER:
------
In connection with the lease of the Premises from Landlord to Tenant,
Landlord shall pay a broker's commission to Xxxxxxx'x International (Xxxx
Xxxxxxxxx) pursuant to a separate agreement. With the exception of such
commission, Landlord and Tenant each represent to the other that it has not
entered into any agreement or incurred any obligation which might result in the
obligation to pay a leasing or brokerage commission or finder's fee with respect
to this transaction. Landlord and Tenant each agree to indemnify, defend,
protect and hold the other harmless from and against any and all losses, claims,
damages, costs or expenses (including reasonable attorneys' fees) which the
other may incur as a result of any claim made by any person to a right to a
leasing or brokerage commission or finder's fee in connection with this
transaction to the extent such claim is based, or purportedly based, on the acts
or omissions of Landlord or Tenant, as the case may be.
25. RIDER:
-----
The provisions of the attached Rider shall be an integral part of this
Lease.
XXXX COMPANIES US, INC.,
a Minnesota corporation
By: /s/ Xxxx Xxxxxxxxxxxx
--------------------------------
Its: VP
----------------------------
LANDLORD
AVNET, INC., a New York corporation
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------
Its: Senior Vice President and
----------------------------
Chief Financial Officer
----------------------------
TENANT
-21-
RIDER TO LEASE
DATED APRIL 20, 1999
BETWEEN
XXXX COMPANIES US, INC., AS LANDLORD,
AND
AVNET, INC., AS TENANT
THIS RIDER is an integral part of the attached Lease between Xxxx Companies
US, Inc., as Landlord, and Avnet, Inc., as Tenant. In the event of any conflict
between the two, the terms of this Rider will govern. This Rider and the
attached Lease Agreement are called the "Lease."
26. RIGHT OF FIRST REFUSAL TO PURCHASE:
----------------------------------
If Landlord receives an offer to buy the Premises and desires to accept the
offer, or if Landlord desires to make an offer to sell the Premises, Landlord
will give Tenant a written summary of the essential terms of the offer. Tenant
will have the right to accept the offer by written notice to Landlord within
thirty (30) days after Tenant's receipt of the offer. If Tenant accepts the
offer, Tenant will be bound to Purchase the Premises in accordance with the
terms of the offer. If Tenant does not accept the offer timely, Tenant's rights
under this Paragraph 26 will expire.
Tenant shall have no right to purchase the Premises if at the time Landlord
receives an offer or makes an offer (a) Tenant is in default under this Lease,
(b) an event has occurred that would be a default under this Lease after notice
or the passage of time, or both, or (c) Tenant has assigned this Lease or sublet
all or part of the Premises to anyone other than a Tenant Affiliate. The rights
granted to Tenant herein are personal to Tenant and a Tenant Affiliate and may
not be exercised by anyone other than Tenant or a Tenant Affiliate. Any
attempted assignment of Tenant's rights in this section will be void.
Notwithstanding the foregoing, Tenant shall have no right to purchase the
Premises in the following excluded transactions: (a) sale of the Premises in
combination with other property of Landlord and/or a Xxxx Affiliate; or (b) any
offer after the first one that Landlord gives to Tenant under this section. The
term "Xxxx Affiliate" means (x) any entity controlling, controlled by, or under
common control with Landlord; or (y) any officer or director, or any member,
partner, shareholder or other equity holder with an equity interest of ten
percent (10%) or greater, in any of the foregoing entities; or (z) any
combination of (x) or (y).
-22-
27. LANDLORD'S WORK ON BASE BUILDING AND TENANT IMPROVEMENTS; TENANT'S WORK:
-----------------------------------------------------------------------
27.1 The Building will consist of the base building improvements and the
tenant improvements described in the Building Shell Outline Specifications and
the Tenant Improvement Outline Specifications prepared by Xxxx Companies US,
Inc., dated March 12, 1999, which are attached as Exhibit D, and which are, or
will be, shown on the Plans described in Exhibit E. If the Plans are not fully
completed by the date of this Lease, Landlord and Tenant agree to cooperate with
each other to the fullest extent necessary to ensure timely completion of the
Plans. Landlord will be providing Tenant with no improvements other than the
foregoing and as provided in subparagraph 27.3. The Building Shell Outline
Specifications and the Tenant Improvement Outline Specifications require Tenant
to reimburse Landlord for stipulated development costs, which shall be paid
within fifteen (15) days following Tenant's receipt of the invoice(s) therefor.
Landlord acknowledges that the Plans shall be adequate to provide the "turnkey"
Premises contemplated by this Lease.
27.2 Landlord will construct the Building shown in the Plans and perform
Landlord's Work thereon under a design/build format in a good and workmanlike
manner substantially in compliance with the Plans, this Lease and applicable
laws, regulations and building codes including the Americans With Disabilities
Act of 1990. Minor or insubstantial deviations from applicable laws,
regulations and building codes that do not materially impair Tenant's use and
enjoyment of the Premises will not be rejected unless a governmental body or
authority requires full compliance with applicable laws, regulations and
building codes in which event Landlord shall bring the Building into full
compliance at Landlord's sole expense.
27.3 Any change order affecting the Building whether requested by Landlord
or by Tenant shall be signed by Landlord and Tenant and shall include (a) a
description of the change to the Building, (b) necessary adjustments to
Landlord's performance dates, and (c) a re-calculation of Rent, if any.
27.4 If, prior to the second (2nd) anniversary of the date of Substantial
Completion of Landlord's Work, any of Landlord's Work is found to be defective
due to faulty workmanship or materials or not in accordance with the terms of
this Lease, and if within such period Tenant notifies Landlord of same in
writing, then Landlord shall correct Landlord's Work at Landlord's sole expense
within a reasonable time after receipt of such notice. Tenant shall notify
Landlord promptly after discovery of the condition. Landlord shall have no
responsibility for defective or other work that is the result of design error by
Tenant or its agents, or abuse, neglect, improper or inadequate care and
maintenance by Tenant (to the extent that such care and maintenance is an
obligation of Tenant under Paragraph 8).
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Landlord's responsibility for maintenance, repair and replacement of
specified elements of the Premises under Paragraph 8 shall not operate to extend
or enlarge the warranty in this Paragraph 27.4.
Tenant shall not assert a claim for breach of warranty under this Paragraph
27.4 against any lender of Landlord, and such claim shall be asserted only
against Xxxx Companies US, Inc. within the prescribed time period.
Landlord will assign to Tenant all assignable subcontractor and vendor
warranties relating to those parts of the Premises that are the obligation of
Tenant to repair. Subcontractor and vendor warranties relating to those parts of
the Premises that are the obligation of Landlord to repair will be retained by
Landlord and enforced as necessary.
27.5 All of Tenant's Work shall be performed by Tenant in accordance with
the provisions of this Lease at Tenant's sole expense. Tenant's Work shall be in
compliance with applicable laws, regulations and building codes, excepting minor
or insubstantial deviations, which Tenant shall eliminate at Tenant's sole
expense if any governmental body or authority requires full compliance with
applicable laws, regulations and building codes. Tenant's Work shall not involve
structural changes to the Premises. Landlord shall have no responsibility
whatsoever for Tenant's Work. Insurance provided by Landlord shall not cover
Tenant's Work. Tenant shall insure Tenant's Work with coverage that is
commercially reasonable. Tenant's Work shall be completed lien-free and, if
requested by Landlord or Landlord's lender, Tenant will provide lien waivers
compliant with Arizona law.
28. RENEWAL OPTION(S):
-----------------
Provided that Tenant is not in default under this Lease when it exercises
the Renewal Options set forth below, Tenant will have the right to renew this
Lease for two (2) successive five-year terms (the "Renewal Terms") by giving
notice of exercise of the Renewal Option to Landlord at least six (6) months
before the end of the Term and the first Renewal Term. If Tenant fails to
deliver timely written notice of exercise of a Renewal Option to Landlord, all
Renewal Options shall lapse and Tenant will have no further privilege to extend
the Term. Time is of the essence of this provision.
Each Renewal Term shall be on the same terms and conditions of this Lease
(unless by their very nature inapplicable), except that (a) Rent payable by
Tenant to Landlord during the first three (3) years of each Renewal Term shall
be based on the prevailing "market rental rate" for comparable space in
competing buildings of similar size, type, quality and location, as reasonably
calculated by Landlord, at the beginning of each Renewal Term, but in no event
--- -- -- -----
less than the rental rate in force at the end of the preceding Term, and (b)
----
Tenant shall have no right to renew this Lease for more than two (2) successive
five-year terms and no renewal shall imply a further right of renewal.
Determination of the effective "market rental rate" will give appropriate
consideration to
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rental rates for renewals, rental escalations, tenant improvement allowances,
common area charges, operating costs, and other terms that would affect the
economics in a similar lease renewal at a competing building in the area.
If Landlord and Tenant are unable to agree on the "market rental rate" to
be applied to the Premises, Landlord and Tenant shall select a highly qualified
and reputable MAI commercial real estate appraiser with at least ten (10) years
of experience in the relevant leasing market (the "Appraiser") to determine the
"market rental rate." If Landlord and Tenant are unable to agree on the
Appraiser, the President of the Arizona Chapter of the Appraisal Institute shall
select the Appraiser.
For years four (4) and five (5) of each Renewal Term, Rent shall be
increased, beginning on the thirty-seventh (37th) month of each Renewal Term, by
a multiplier of 1.093.
In addition to paying the Rent determined pursuant to this Paragraph 28,
Tenant will continue to pay the Operating Costs and all other sums required
under this Lease during each Renewal Term.
If this Lease or Tenant's right to possession of the Premises shall expire
or terminate for any reason whatsoever before Tenant exercises the Renewal
Options, or if Tenant has sublet or assigned all or any portion of the Premises
other than to a Tenant Affiliate, then immediately upon such expiration or
termination, subletting or assignment, the Renewal Options shall simultaneously
terminate and become null and void. The Renewal Options are personal to Tenant.
Under no circumstances shall a subtenant or an assignee other than a Tenant
Affiliate have the right to exercise the Renewal Options.
29. DECLARATION, GROUND LEASE, AND SUBGROUND LEASE:
----------------------------------------------
The Premises are subject to the terms and conditions of the Declaration.
Tenant's use of the Premises shall be in full compliance with the terms and
conditions of the Declaration. Tenant represents and warrants to Landlord that
Tenant has reviewed, understands and agrees to use the Premises in full
compliance with the terms and conditions of the Declaration at all times.
Notwithstanding the foregoing, Tenant's use of the Premises shall be deemed to
be in full compliance with the terms and conditions of the Declaration so long
as Tenant's use of the Premises is a Permitted Use under the Subground Lease.
This Lease is also subject and subordinate to (a) the Arizona State
University Research Park Ground Lease dated October 8, 1984 between the Arizona
Board of Regents and Xxxxx-Xxxxxxx Research Park, Inc. (the "Ground Lease"), and
(b) the Subground Lease between Xxxxx-Xxxxxxx Research Park, Inc. and Landlord
dated April 5, 1999 (the "Subground Lease").
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Landlord shall maintain the Subground Lease in full force and effect and in
good and current standing at all times during the Term and any renewals of the
Term. Landlord shall also perform and observe, in timely fashion, all
covenants, conditions, obligations and agreements of Landlord under the
Subground Lease. Landlord hereby acknowledges and agrees that Tenant shall have
the absolute right to cure any default by Landlord under the Subground Lease in
accordance with the terms of that certain Tri-Party Agreement between Xxxxx-
Xxxxxxx Research Park, Inc., Landlord and Tenant dated April 5, 1999.
Upon execution of this Lease or within fifteen (15) days thereafter,
Arizona State University, Xxxxx-Xxxxxxx Research Park, Inc. and Landlord shall
enter into a Recognition, Nondisturbance and Attornment Agreement in the form
attached hereto as Exhibit F.
30. PHASE IA EXPANSION:
------------------
If Tenant desires to have the Building expanded during the Term, Tenant
shall provide Landlord with a written proposal of the desired expansion. Within
thirty (30) days following Landlord's receipt of Tenant's proposal, Landlord
will provide Tenant with a written response advising Tenant that (a) Landlord
desires to negotiate the terms of the expansion or (b) Landlord elects in its
sole discretion not to undertake the expansion. If Landlord provides a response
under (a), Landlord and Tenant will negotiate the terms of the expansion but
neither Landlord nor Tenant will be required to enter into any agreement for the
expansion unless the terms thereof are completely satisfactory to both parties,
and either party may terminate negotiations at any time, at will. If Landlord
agrees to undertake the expansion, then Landlord and Tenant will enter into a
written amendment to this Lease setting forth the terms and conditions
applicable to the expansion, which will require Landlord to enter into an
amendment to the Subground Lease incorporating the Phase IA Land.
If Landlord elects not to undertake the expansion or should the
negotiations of Landlord and Tenant terminate, then in either event Tenant shall
have the right to undertake the expansion at its own expense, subject to the
following terms and conditions:
(a) Tenant shall not be in default under this Lease.
(b) The expansion shall be permitted by applicable laws, ordinances and
building codes, the Ground Lease, the Subground Lease, the Declaration and any
other applicable covenants, conditions and restrictions.
(c) That portion of Xxx 00 (xxx "Xxxxx XX Xxxx") initially excluded from
the Land shall become part of the Land by an amendment to the Subground Lease.
(d) All construction shall be performed by reputable, licensed and
bondable contractors, subject to the approval of Landlord not to be unreasonably
withheld,
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pursuant to necessary permits, consents and approvals, in accordance with plans
and specifications mutually acceptable to Landlord and Tenant, in compliance
with applicable laws, regulations and building codes, the Ground Lease, the
Subground Lease, the Declaration and applicable covenants, conditions and
restrictions, all at Tenant's sole expense with no expense to Landlord.
(e) Tenant shall provide satisfactory builder's risk and other appropriate
insurance in commercially reasonable coverages in respect to the expansion.
Tenant shall obtain payment and performance bonds to ensure faithful completion
of the work and payment therefor.
(f) The expansion shall be completed lien free and Tenant will provide
Landlord with lien waivers compliant with Arizona law.
(g) Landlord and Tenant will enter into a written amendment to this Lease
setting forth the terms and conditions applicable to the expansion consistent
with this Paragraph 30.
If the expansion is undertaken and paid for by Tenant, Tenant will not be
required to pay Landlord additional rent for the costs of design, development
and construction of the expansion improvements but shall pay the increase in
Operating Costs allocable to the expansion and the increase in Rent
corresponding to the increase in rent payable by Landlord under the Subground
Lease for the Phase IA Land, which shall be amended by Xxxxx-Xxxxxxx Research
Park, Inc. and Landlord.
Landlord will not be required to encumber the Premises (including the Phase
IA Land) to finance any part of the cost of the expansion.
Any obligation of Landlord under this Paragraph 30 shall not be binding
upon any lender of Landlord holding a lien on the Premises, or its successors
and assigns, provided that this limitation shall not impair or prejudice
Tenant's right to construct the expansion on its own.
XXXX COMPANIES US, INC., AVNET, INC., a New York corporation
a Minnesota corporation
By: /s/ Xxxx Xxxxxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
--------------------------- --------------------------------
Its: VP Its: Senior Vice President and Chief
----------------------- -------------------------
Date: April 20, 1999 Date: April 14, 1999 Financial Officer
--- ---
LANDLORD TENANT
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