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EXHIBIT 10.16
NORTH CAROLINA )
)
GUILFORD COUNTY )
THIS LEASE, made and entered into this the 12th day of February, 1999,
by and between HIGHWOODS REALTY LIMITED PARTNERSHIP, a North Carolina Limited
Partnership, hereinafter referred to as "Landlord" and R.F. MICRO DEVICES, INC.,
a North Carolina Corporation, hereinafter referred to as "Tenant."
RECITALS
Landlord is seized of the business premises described herein, having
space therein to let. Tenant desires to lease such space from Landlord. The
parties desire to enter into a Lease Agreement defining their respective rights,
duties and liabilities relating to the premises.
IN CONSIDERATION of the mutual covenants contained herein, the parties
agree as follows:
1. DESCRIPTION OF PREMISES: Landlord is the owner of a 136,000 rentable square
foot building (the "Building") located on certain real property at 000 Xxxxxxxxx
Xxxxx Xxxx, Xxxxx X, Xxxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxx Xxxxxxxx, being more
fully described on Exhibit "A" attached hereto and hereby made a part hereof.
The Leased Space shall consist of real property described on Exhibit
"A" attached hereto together with the Building and other improvements in the
amount of 136,000 rentable square feet, as outlined in red on Exhibit "B"
attached hereto, said space and real property, hereinafter referred to as the
"Premises." The entire Premises shall be for the exclusive use of Tenant, its
agents, servants, employees and invitees for office and related uses. The
Premises are more commonly known as Suite A.
Landlord represents and warrants that it is the owner in fee simple of
the Premises and that there are no covenants, restrictions, or zoning or other
regulations which prevent, or are violated by, this Lease or the use of the
Premises as contemplated herein.
2. TERM: The term of this Lease shall be for a period of fifteen (15) years,
beginning June 1, 1999, the "Commencement Date," continuing through May 31,
2014, the "Termination Date." For purposes of this Lease, the Building shall be
deemed completed upon issuance of a certificate of occupancy from the applicable
governmental authority, and a certificate of architect from Xxxxxxxx Xxxxxx
indicating that the property has been substantially completed in accordance with
Tenant approved construction drawings. The Lease, along with Tenant's rental
obligation, shall commence upon the issuance of a certificate of occupancy and
certificate or architect supplied by Xxxxxxxx Xxxxxx.
3. BASE RENT: Tenant shall pay rental for the Premises Lease in the amount of
three hundred ninety seven thousand one hundred twenty dollars and 00/100
($397,120.00) per year, payable in equal monthly installments of thirty three
thousand ninety three dollars and 33/100 ($33,093.33).
Rent shall increase on the third anniversary of the Commencement Date
by 4.5% from the previous Lease year. Rent shall also increase on the sixth,
ninth, and twelfth anniversaries of the Commencement Date by the same percentage
as eighty percent (80%) of the percentage increase in the Consumer Price Index
-- All Items -- All Urban Consumers ("CPI"), issued by the U.S. Department of
Labor, for each prior thirty-six (36) month period. However, in no event shall
the base rent decrease as a result of a decrease in CPI.
As soon as practicable after the CPI for the anniversary date becomes
available, the Landlord shall furnish to Tenant a statement for setting froth
the adjustment, if any, to Rent as required by this paragraph 3. From the
beginning of each Lease Year until Landlord shall furnish Tenant with a
statement as aforesaid, Tenant shall continue to pay Rent at the rate it shall
have been obligated to pay during the preceding Lease Year. Beginning with the
first day of the calendar month following the date upon which Landlord shall
have delivered to Tenant each such statement, Tenant shall pay rent at the rate
required by this paragraph 3 and shall pay Landlord any difference between Rent
it shall have paid
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Landlord for such year and the adjusted Rental it shall have been obligated to
pay Landlord for such year under this paragraph 3. It is agreed that in the
event the aforesaid index is discontinued or revised, any other index with which
it is replaced shall be used in order to obtain substantially the same results
as would be obtained if there had been no such discontinuation or revision.
All rental payments are payable in advance on the first (1st) day of
each month without prior offset or deduction, except as set forth in the Lease,,
to Landlord at Landlord's address specified in section 4.1 hereof entitled
"NOTICES" or at such other place as Landlord may direct. In the event any Tenant
check tendered to Landlord in payment of its obligations hereunder is returned
by Tenant's bank for insufficient funds, any and all reasonable charges incurred
by Landlord as a result shall be billed to Tenant by Landlord as additional rent
hereunder.
4. OCCUPANCY AND ACCEPTANCE OF PREMISES: Landlord shall deliver actual
possession of the Premises to Tenant on the Commencement Date according to the
specifications indicated in Exhibit "B" attached hereto and by this reference
made a part hereof, provided Landlord is able to furnish to Tenant evidence
obtained from local governmental authorities having jurisdiction that the
Premises have been duly inspected and approved for Tenant's occupancy. If the
Premises are ready for Tenant's occupancy prior to the Commencement Date,
Landlord shall so notify Tenant and Tenant may accept such early occupancy,
provided, however, in such event Tenant shall pay to Landlord base rental
calculated on a daily basis assuming a 365 day year, for each day Tenant shall
occupy the Premises prior to the Commencement Date. If permission is given to
Tenant to occupy the Demised Premises prior to the date of commencement of the
term hereof, such occupancy shall be subject to all the provisions of this Lease
except for those relating to the term of this Lease.
Upon Tenant's occupancy of the Premises Tenant shall render to
Landlord, within ten (10) days of such occupancy date, a written notice listing
each and every respect in which the Premises are incomplete according to such
building specifications as noted above; Landlord shall then have sixty (60) days
from its receipt of said notice to complete those items contained in such
listing. The existence of such items shall not alter the Tenant obligation to
pay rent pursuant to Section 3.
During Tenant's move-in, a representative of the Tenant must be on-site
with any moving company to ensure proper treatment of Premises. Elevators in
multi-story office building must remain in use for the general public during
business hours. Any specialized use of elevators must be coordinated with the
Landlord's Property Manager. All packing materials and refuse must be properly
disposed of. Any damage or destruction due to moving will be the sole
responsibility of the Tenant.
Tenant shall, at its own expense, comply with all future governmental
regulations to include those relating to the Americans with Disabilities Act
(ADA). Landlord warrants that the Premises complies with such governmental
regulations as of the Commencement Date of this Lease.
Notwithstanding anything stated above to the contrary, the Tenant shall
have the right to enter into the Premises prior to the Commencement Date to
begin work necessary for the Tenant's upfitting of the Premises. All work
performed by the Tenant and the Tenant's contractors or subcontractors shall be
coordinated with the Landlord and the Landlord's contractors so as to not
interfere with the work performed by the Landlord's contractors. Tenant agrees
to indemnify and hold the Landlord harmless from any loss, cost and expense
suffered by the Landlord as a result of the Tenant or Tenant's contractors'
presence on the Premises prior to the Commencement Date. Should Landlord fail to
deliver the Premises in accordance with Tenant approved construction drawings by
_________________, then Tenant shall have the right to terminate the Lease.
5. AUDIT: If Tenant disputes the amount of operating expenses set forth in the
invoice from the Landlord within forth-five days after receipt thereof, and
provided Tenant is not then in default under this Lease, Tenant shall have the
right upon notice to have Landlord's book and records relating to operating
expenses audited by a qualified professional selected by Tenant or by Tenant
itself. If after such audit Tenant still disputes the amount of operating
expenses, a certification as to the proper amount shall be made by Landlord's
independent certified public accountant in consulting with Tenant's
professional, which certification shall be final and conclusive. If such audit
reveals that operating expenses were overstated by five percent (5%) or more in
the calendar year audited Landlord shall within thirty (30) days after
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the certification pay to Tenant the amount of any overstatement which it had
collected from Tenant. However, if such certification does not show that
Landlord had made such an overstatement then Tenant shall pay both the costs of
its professional as well as the reasonable charges of Landlord's independent
certified public accountant engaged to determine the correct amount of operating
expenses. If the certification shows that Landlord has undercharged Tenant then
Tenant shall within thirty (30) days pay to Landlord the amount of any
undercharge.
Books and records necessary to accomplish any audit permitted under
this Section shall be retained for twelve months after the end of each calendar
year, and on receipt of notice of Tenant's dispute of the operating expenses
shall be made available to Tenant to conduct the audit, which may be either at
the Premises, or at Landlord's office in Winston-Salem, North Carolina.
In the event that the Tenant elects to have a professional audit
Landlord's operating expenses as provided in this Lease, such audit must be
conducted by an independent nationally or regionally recognized accounting firm
that is not being compensated by Tenant on a contingency fee basis. All
information obtained through such audit as well as any compromise, settlement or
adjustment reached as a result of such audit shall be held in strict confidence
by Tenant and its officers, agents, and employees and as a condition to such
audit, the Tenant's auditor shall execute a written agreement agreeing that the
auditor is not being compensated on a contingency fee basis and that all
information obtained through such audit as well as any compromise, settlement or
adjustment reached as a result of such audit, shall be held in strict confidence
and shall not be revealed in any manner to any person except upon the prior
written consent of the Landlord, which consent shall not be unreasonably
withheld in Landlord's sole discretion, or if required pursuant to any
litigation between Landlord and Tenant materially related to the facts disclosed
by such audit, or if required by law.
No subtenant shall have any right to conduct an audit and no assignee
shall conduct an audit for any period during which such assignee was not in
possession of the Premises.
6. LATE PAYMENT OF RENT: All monthly installments of rent herein stipulated are
due in advance without prior offset or deduction, except as set forth in this
Lease, on the first (1st) day of each month during the term hereof, as set forth
in Section 3 hereof entitled "BASE RENT." All rents not received on the first
(1st) day of the month shall be deemed "past due" and all rents not received by
the Landlord by the tenth (10th) day of each month during the term hereof shall
be subject to a charge of 5% of the amount due.
In any such event, Landlord shall so invoice Tenant for any such
charge, which shall become due immediately upon Tenant's receipt of the invoice
but in no event later than ten (10) days from the invoice date.
Once any payment of rent is thirty (30) days past due, the total due,
including the 5% charge, shall bear interest at eighteen (18) percent per annum.
7. NO ACCORD AND SATISFACTION: No acceptance by Landlord of a lesser sum than
the Base Rent, late charges, additional rent and other sums then due shall be
deemed to be other than on account of the earliest installment of such payments
due, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed as accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such installment or pursue any other remedy in this
Lease provided.
8. USE: Premises shall be sued for such office, assembly, storage, distribution
and manufacturing activities as are allowed under existing zoning and recorded
covenants. Tenant shall not conduct, or allow to be conducted, on or within the
Premises any business or permit any act which in any way increases the cost of
fire insurance on the building or constitutes a nuisance or is contrary to or in
violation of the laws, statutes or ordinances of local state or federal
governments having jurisdiction and Tenant agrees to comply, at Tenant's
expense, with all governmental regulations, to include those relating to the
American with Disabilities Act (ADA). Tenant will pay to bring the Premises into
compliance with any revisions to the American with Disabilities Act (ADA) after
the Commencement Date of the Lease. Any violation of this provision by Tenant
shall be a material breach of this Lease, entitling Landlord to exercise any
rights or remedies contained herein or provided by law or other authority.
Landlord and Tenant hereby agree that the manufacturing of wafers as
contemplated by the Tenant does not violate existing zoning or any recorded
restrictive covenants.
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It is hereby agreed and understood that the following functions are
prohibited outside the building walls or in the parking or service areas:
storage of any item; manufacture or assembly of any product; refuse
accumulation; rallies or meetings; any conduct of business. Personal property of
Tenant of any type or size shall be permitted outside the Premises only during
times of loading or unloading operations.
9. QUIET ENJOYMENT: The Landlord covenants that Tenant, upon paying the Landlord
the rental stipulated herein together with all other charges reserved herein,
and performing the covenants, promises and agreements herein, shall peaceably
and quietly have, hold and enjoy the Premises and all rights, easements,
appurtenances and privilege belonging or appertaining thereto, during the full
term hereby granted and any extensions or renewals thereof.
10. COMMON AREAS: As used in this Lease, Common Areas shall mean all areas of
the entire building and appurtenance which are available for the common use of
tenants and which are not held for the exclusive use of the Tenant or other
tenants, including but not limited to: the parking areas and entrances and
exists thereto, driveways and truck service ways, sidewalks, landscaped areas,
access roads, building equipment rooms, and other areas and facilities provided
for the common or joint use and benefit of occupants of the Building, their
employees, agents, customers and invitees. Landlord reserves the right, from
time to time, to reasonable alter said common areas, including converting common
areas into leasable areas, constructing additional parking facilities in the
common areas, increasing or decreasing common area land and/or facilities and to
exercise control and management of the common areas and to establish, modify,
change and enforce such reasonable Rules and Regulations as Landlord in its
discretion may deem desirable for the management of the Building.
Tenants agree to abide by and conform to such rules and regulations and
shall be responsible for the compliance with same by its employees, agents,
customers and invitees. The failure of Landlord to enforce any of such Rules and
Regulations against Tenant or any other tenant shall not be deemed to be a
waiver of same.
Landlord shall have the right to restrict or close all or any portion
of the common areas at such times and for such periods as may, in the opinion of
the Landlord, be necessary to prevent a dedication thereof, or to preserve the
status thereof as private property, or to prevent the accrual of any rights in
any person; and Landlord may also close said common areas for purposes of
maintenance and repair as may be required from time to time.
Tenant shall pay to Landlord its proportionate share of the entire
common area maintenance cost. Tenant's proportionate share shall be the relation
of Tenant's 136,000 rentable square foot area to the 136,000 rentable square
foot of total building area, or 100%.
During the term hereof, Landlord shall notify Tenant of its
proportionate share due for such cost. Landlord shall have the option through
the Lease term to require Tenant's reimbursement on either a monthly, quarterly
or annual basis, at Landlord's sole discretion, to become due and payable as
additional rent within ten (10) days, if invoiced monthly or thirty (30) days,
if invoiced quarterly or annually, from the date of invoice.
11. ASSIGNMENT AND SUBLETTING: Tenant covenants and agrees that neither this
Lease nor the term hereby granted, nor any part thereof, will be assigned,
mortgaged, pledged, encumbered o otherwise transferred, by operation of law or
otherwise, and that neither the Premises, nor any part thereof, will be sublet
or advertised for subletting or occupied, by anyone other than Tenant, or for
any purpose other than as hereinabove set forth, without the prior written
consent of Landlord not to be unreasonably withheld. Landlord's withholding of
consent shall be deemed reasonable if the use or occupancy of the Premises by
such sublessee or assignee could make Landlord responsible for any costs of
compliance with the Americans with Disabilities Act (ADA) or any other
legislation by any governmental body.
12. LANDLORD'S REPAIRS: The Landlord shall maintain and keep in good condition
and repair the roof, parking areas and exterior landscaping, exterior and
supporting walls of the Building together with repairs necessary due to
structural defects, if any. Landlord shall also maintain and repair the
electrical writing (from the utility company's distribution lines to the
Premises, including the electrical service exclusive of fuses, fuse blocks,
breaker units or meter deposits) servicing the Premises, the water line
servicing the Premises, and the sanitary sewer lines and/or septic tank
servicing the Premises. However, the Landlord shall not be responsible for such
maintenance and repairs in the event the same are required as a result of the
negligence or willful act of the Tenant or its clients, customers, licensees,
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assignees, agents, employees or invitees and further, in any such event the cost
of such maintenance and repairs so required shall be the sole responsibility of
the Tenant.
To the extent any repairs required to be performed by the Landlord are
required, the Tenant shall immediately notify the Landlord that such repairs are
necessary. Provided Tenant's request is reasonable, Landlord shall immediately
commence such repairs and complete such repairs as soon as possible. Tenant
shall have the right to complete any repairs not completed by the Landlord in a
timely fashion, and offset such cost in the next month's rent (not to exceed one
month). Tenant shall provide to Landlord written documentation of said costs.
13. TENANT REPAIRS; ALTERATIONS: The Tenant shall effect, at its sole cost and
expense, all maintenance and repairs to the interior of said Premises, including
without limitation, the floor and wall coverings (whether paint or otherwise);
lights, light fixtures, and light bulbs; interior and exterior doors and door
locks, overhead doors; ceiling tiles; water heaters; windows, frames, glass,
window blinds; all heating, ventilating and air conditioning equipment; all
plumbing and electrical not described in Section 12 above; security systems and
any other improvements not required to be maintained by Landlord in the
immediately preceding Section 12 hereof, except in the event the improvements
installed by Landlord may be defective in material or labor in installation. All
such repairs and replacements required by this section shall be made only by
persons approved in advance by Landlord, not to be unreasonably withheld. Should
Tenant fail to comply with the maintenance and repairs required above, the
Landlord shall have the right, after ten (10) days prior written notice to
Tenant, to enter on the Premises and make necessary repairs and perform and
maintenance required. Any reasonable cost incurred by Landlord shall be paid by
the Tenant at cost plus ten percent (10%) overhead and ten percent (10%) for
profit.
Tenant shall submit to the Landlord for Landlords' prior written
approval all of the plans and specifications for any alterations, additions or
improvements in and to the Premises which tenant may deem desirable or necessary
in its use and occupancy thereof. Such alterations, additions or improvements
shall not be made without the prior written approval of Landlord. If any changes
are made to the plans by the Landlord, Tenant shall review final plans and
provide written approval prior to Landlord starting upfit construction. All such
alterations, additions or improvements shall be made in accordance with
applicable city, county, state and federal laws and ordinances, and building and
zoning rules and regulations and all present and future governmental regulations
relating to the Americans with Disabilities Act (ADA). Landlord's approval
hereunder shall not be deemed as warranty that tenant's alterations meet such
ADA regulations, however, such consent shall carry a requirement that such
alterations will be constructed by Tenant, at its own expense, in full
compliance with all existing ADA governmental regulations. Tenant shall be
liable for all damages or injuries which may result to any person or property by
reason of or resulting from any alterations, additions or improvements made by
it to the Premises and shall hold the Landlord harmless with respect thereto.
All additions and improvements made by the Tenant, except trade fixtures, shall
become a part of the Premises and shall, upon the termination or expiration of
this Lease, belong to Landlord except as may be otherwise set forth in a letter
agreement or other written instrument executed by the parties hereto and
attached to this Lease as an amendment hereto and thereby made a part hereof.
In the event Tenant performs any alterations, additions or improvements
to the Premises, Tenant agrees that it shall provide to Landlord a reproducible
set of as-built plans for Landlord's files.
If Tenant fails to perform Tenant's obligations under this Section,
Landlord may at its option enter upon the Premises after ten (10) days prior
written notice to Tenant, perform such obligation on Tenant's behalf, and the
cost thereof together with interest thereon shall become due and payable as
additional rental to Landlord together with Tenant's next rental installment.
At Landlord's option, Landlord may require that Tenant remove any or
all alterations or improvements at Tenant's expense upon termination of the
Lease.
14. HEATING, VENTILATION AND AIR CONDITIONING: The Tenant shall at its sole cost
and expense keep in force a maintenance contract for the entire term of this
Lease on all heating, air conditioning and ventilation equipment pertaining to
the Premises, providing for service inspections to be done on a routine basis as
proposed by such contract. Tenant shall submit a copy of said contract to
Landlord within ten (10) days after occupancy of the Premises. Landlord
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must approve the terms of the maintenance contract and the firm Tenant chooses
as the maintenance contractor, such approval not to be unreasonably withheld.
Landlord shall be responsible for replacement of any defective motor or
compressor within the system provided it is not as a result of negligence or
willful act of the Tenant, its clients, customers, licensees, assignees, agents,
employees, or invitees. However, Tenant's failure to provide the required
maintenance contract shall release Landlord from any and all liability for said
equipment.
Upon termination of this Lease, Tenant will deliver the HVAC equipment
in good operating condition.
15. FEDERAL REGULATION AND/OR PROHIBITION OF CFC's: Due to an environmental
threat that the earth's ozone layer has deteriorated, there is international
concern for the control of Chlorofluorocarbons ("CFC's") and possible ban
thereof. Future legislation could impose:
1) New maintenance standards and procedures on HVAC equipment in order
to reduce the amount of freon existing in the system; or
2) Conversion of the equipment in order to accommodate the use of a
substitute chemical; or
(3) Replacement of the equipment in the event the equipment does not
comply with the required performance and maintenance standards.
Landlord and Tenant hereby acknowledge that any costs associated with
the above shall be considered a maintenance item and shall be paid by Tenant.
Notwithstanding the preceding sentence, in the event that any such
rules and regulations as described above are enacted which require significant
changes to the HVAC equipment of the Premises during the last three years of the
term of this Lease (including the renewal term), the cost of bringing the HVAC
equipment on the Premises into compliance with such rules or regulations shall
be prorated among the Tenant and the Landlord based upon the anticipated useful
life of the HVAC equipment, as modified, and the remaining number of years left
in the term of this Lease.
16. SUBORDINATION AND ATTORNMENT: Tenant agrees that this Lease is subject and
subordinate to any and all mortgages or deeds of trust now or hereafter placed
on the property of which the Premises are a part, and this clause shall be self
operative without any further instrument necessary to effect such subordination;
however, if requested by Landlord, Tenant shall promptly execute and deliver to
Landlord any such certificate as Landlord may reasonably request evidencing such
subordination of this Lease to or the assignment of this Lease as additional
security for such mortgages or deeds of trust. Provided, however, in each case,
the holder of the mortgage or deed of trust shall agree that this Lease shall
not be divested by foreclosures or other default proceedings so long as tenant
shall not be in default under the terms of this Lease beyond any applicable cure
period set forth in this Lease. Tenant shall continue its obligations under this
Lease in full force and effect notwithstanding any such default proceedings
under a mortgage or deed of trust and shall attorn to the mortgagee, trustee or
beneficiary of such mortgage or deed of trust, and their successors or assigns,
and to the transferee under any foreclosure or default proceedings. The
subordination contained in this paragraph 16 shall not apply unless and until
the mortgagee or deed of trust holder agrees to the nondisturbance provisions
set forth above.
In the event of the sale, assignment, or transfer by Landlord of its
interest in the Premises to a successor in interest who expressly assumes the
obligation of the Landlord hereunder, and who is financially sound and
adequately capitalized, the Landlord shall thereupon be released or discharged
from all of its covenants and obligations hereunder, except such obligations
shall have accrued prior to any such sale, assignment or transfer; and Tenant
agrees to look solely to any successor in interest of the Landlord for
performance of any such obligations. Tenant shall have ten (10) days from its
receipt of Landlord's request to deliver any such fully executed documents to
Landlord. Tenant's failure to execute and deliver any such documents shall
constitute a default hereunder.
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17. CHANGE IN OWNERSHIP OF PREMISES: If the ownership of the Premises or the
name or address of the party entitled to receive rent hereunder shall be
changed, the Tenant may, until receipt of proper notice of such change(s),
continue to pay the rent and other charges herein reserved accrued and to accrue
hereunder to the party to whom and in the manner in which the last preceding
installment of rent or other charge was paid, and each such payment shall, to
the extent thereof, exonerate and discharge the Tenant.
18. CONDEMNATION: If the whole of the Building, or such substantial portion
thereof as will make Premises unusable for the purposes referred to herein,
shall be condemned by any legally constituted authority for any public use or
purpose, then in either of said events the term hereby granted shall cease from
the time when possession thereof is taken by the condemning authority, and
rental shall be accounted for as between Landlord and Tenant as of that date. In
the event the portion condemned is such that the remaining portion can, after
restoration and repaid, be made usable for Tenant's purposes, then this Lease
shall not terminate; however, the rent shall be reduced equitably to the amount
of the Premises taken. In such an event, Landlord shall make such repairs as may
be necessary as soon as the same can be reasonably accomplished, not to exceed
120 days. Such termination, however, shall be without prejudice to the rights of
either Landlord or Tenant, or both, to recover compensation and damage caused by
condemnation from the condemnor. It is further understood and agreed that
neither the Tenant nor Landlord shall have any rights in any award made to the
other by any condemnation authority.
Any minor condemnation or taking of the Premises for the construction
or maintenance of streets or highways shall not be considered a condemnation or
taking for the purposes of this Section 18 so long as the Premises shall not be
materially or adversely affected, ingress and egress for the remainder of the
Premises shall be adequate for the business of Tenant, and the provisions of any
loan documents of Landlord's lender which encumber the Premises are complied
with, and provided sufficient parking spaces remain as required under applicable
zoning requirements.
19. RIGHT OF LANDLORD TO ENTER; "FOR RENT" SIGNS: The Tenant agrees that the
Landlord or its agents may at all reasonable times enter upon the Premises for
the purpose of inspection or repair of the Building or the building systems and
such other purposes as Landlord may deem necessary or proper for the reasonable
protection of Landlord's interest in the Premises. In addition, the Landlord may
enter the Premises at all reasonable times to exhibit the Premises to
prospective purchasers. During the two (2) months immediately preceding the
final expiration of the term created hereunder or any renewal thereof, the
Landlord, may exhibit the Premises to prospective tenants and/or affix a notice
that the Premises are for rent; such notice shall not be greater than four (4)
square fee in area, and shall be affixed to a suitable part thereof, exclusive
of doors and windows and so as not to obstruct the Tenant's signs.
20. TAXES: Tenant agrees to pay before they become delinquent all taxes,
assessments and governmental charges of any kind and nature whatsoever
(hereinafter referred to as "taxes") lawfully levied or assessed against the
Premises during the term of the Lease. To the extent that taxes are levied or
assessed for any year in which the Tenant occupies the Premises for only a
portion of such year, taxes shall be prorated between the Tenant and the
Landlord based upon the actual number of days that the Tenant occupies the
Premises during such year.
If at any time during the term of this Lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any taxes,
assessments or governmental charges levied, assessed or imposed on real estate
and the improvements thereof, there shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received therefrom
and/or a franchise tax, assessment levy or charge measured by or based, in whole
or in part, upon such rents for the present or any future building or building
on the Premises, then all such taxes, assessments, levies or charges, or the
part thereof so measured or based, shall be deemed to be included with the term
"taxes" for the purposes hereof.
Tenant shall pay to Landlord its proportionate share of the entire cost
of all taxes referenced herein. Tenant's proportionate share shall be the
relation of Tenant's 136,000 rentable square foot area to the 136,000 rentable
square feet of total building area, or 100%. Real estate taxes, as referenced
herein, shall be defined as the amount of the total tax invoice (property
assessment x tax rate) and shall exclude any discount or late penalty charge and
shall include any charge or fee incurred by Landlord as a result of its attempt
in securing a reduction in the assessed value of the Property.
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During the term hereof, Landlord shall notify Tenant of its
proportionate share due for such cost. Landlord shall have the option through
the Lease term to require Tenant's reimbursement on either a monthly, quarterly
or annual basis, at Landlord's sole discretion, to become due and payable as
additional rent within ten (10) days, if invoiced monthly or thirty (30) days if
invoiced quarterly or annually from the date of invoice.
21. FIRE, EXTENDED COVERAGE AND LIABILITY INSURANCE: Landlord agrees to keep in
force policies of fire and extended coverage insurance which shall insure the
Building against such perils or loss as Landlord may deem appropriate including
loss of rents, vandalism and malicious mischief, in an amount equal to one
hundred percent (100%) of the replacement cost of the Building and the
improvements installed by Landlord. Landlord shall deliver certificates of such
insurance to Tenant prior to commencement of this Lease and at least ten days
prior to expiration of any existing certificate. Such certificate shall provide
that the insurance cannot be terminated by the insurer without providing thirty
(30) days prior written notice to Tenant.
Tenant agrees to maintain and keep in force, at its expense and
throughout the entire term hereof, insurance against fire and such other risks
as are from time to time included in standard extended coverage endorsements
including vandalism and malicious mischief, insuring Tenant's stock-in-trade,
trade fixtures, furniture, furnishings, special equipment and all other items of
personal property of Tenant located on or within the Premises and all such other
improvements as are made by the Tenant to the Premises. Tenant shall furnish to
Landlord a certificate evidencing Tenant's maintenance of such insurance
policies throughout the term hereof. All the furnishings, fixtures, equipment
effects and property of every kind, nature and description of Tenant and of all
persons claiming by, through or under Tenant which, during the continuance of
this Lease or any occupancy of the Premises by Tenant or anyone claiming under
Tenant, may be the Premises or elsewhere in the Building shall be a the sole
risk and hazard of Tenant, and if the whole or any part thereof shall be
destroyed or damaged by fire, water or otherwise, or by leakage or bursting of
water pipes, steam pipes or other pipes, by theft or from any other cause, no
part of said loss or damage is to be charged to or to be borne by Landlord
unless the same shall be due to the gross negligence or willful misconduct of
Landlord.
In addition to the policies of fire and extended coverage insurance to
be kept and maintained by Landlord and Tenant herein, Landlord and Tenant shall
each obtain and keep in force during the term hereof and any extension or
renewal terms, policies of comprehensive general liability providing bodily
injury and liability property damage with combined single limits of at least
Five Hundred Thousand Dollars ($500,000.00). In addition thereto, Tenant shall
provide "umbrella coverage" in the amount of One Million Dollars
($1,000,000.00). The Tenant shall, in addition, name the Landlord as an
additional insured under such liability policies and shall provide the Landlord
a certificate of same within thirty (30) days after the execution of this Lease,
as shown on Exhibit "D".
Tenant agrees to pay to the Landlord its proportionate share of the
entire cost that Landlord may incur in the cost of maintaining the policies
required hereunder. Tenant's proportionate share shall be the relation of
Tenant's rentable square foot area to the 136,000 rentable square feet of total
building area, or 100%.
During the term hereof, Landlord shall notify Tenant of its
proportionate share due for such cost. Landlord shall have the option through
the Lease term to require Tenant's reimbursement on either a monthly, quarterly
or annual basis, at Landlord's sole discretion to become due and payable as
additional rent within ten (10) days, if invoiced monthly or thirty (30) days if
invoiced quarterly or annually from date of invoice.
22. DAMAGE AND DESTRUCTION: If the Building, improvements or other portions of
the Premises are rendered partially or wholly untenantable from fire or other
casualty, and if such damage cannot, in Landlord's reasonable estimation, be
materially restored within one hundred eighty (180) days of such damage, then
Landlord may, in its sole option, terminate this Lease as of the date of such
fire or casualty. For purposes hereof, the Building, or other portions of the
Premises shall be deemed "materially restored" if they are in such condition as
would not prevent or materially interfere with tenant's use of the Premises for
the purpose for which it was then being used.
If this Lease is not terminated pursuant to the above paragraph, then
Landlord shall proceed with all due diligence to repair and restore the
Building, at Landlord's cost, once it has been assured of the existence of and
payment of the insurance proceeds (except that Landlord may elect not to rebuild
if such damage occurs during the last year of the term of the Lease exclusive of
any option which is unexercised at the data of such damage).
9
If this Lease is not terminated pursuant to the above paragraph, the
term of this Lease shall end on the date of such damage as if the date had been
originally fixed in this Lease for the expiration of term hereof. If the Lease
shall not be terminated by Landlord pursuant to the above paragraph and in the
event that the Landlord should fail to complete such repairs and material
restoration within one hundred eighty (180) days after the date of such damage,
Tenant may at its option and as its sole remedy terminate this Lease by
delivering written notice to Landlord whereupon the Lease shall end on the date
of such notice as if the date of such notice where originally fixed in this
Lease for the expiration of the term hereof; provided, however, that if
construction is delayed because of changes, deletions or additions in
construction requested by Tenant strikes, lockouts, casualties, acts of God,
war, material or labor shortages, governmental regulation or control or other
causes beyond the reasonable control of Landlord, the period for restoration,
repair of rebuilding shall be extended for the amount of time Landlord is so
delayed.
Tenant agrees that during any period of restoration or repair of
Premises, Tenant shall continue the operation of the Tenant's business within
the Premises to the extent practicable, During the period from the date of
damage until the date that the untenantable portion of the Premisses is
materially restored, the rent shall be reduced to the extent of the proportion
of the Premises which is untenable, however, there shall be no abatement of
other sums to be paid by Tenant to Landlord as required by this Lease.
In no event shall Landlord be required to rebuild, repair or replace
any part of the partitions, fixtures, additions and other improvements which may
have been placed in or about the Premises by Tenant after the Commencement Date,
however, Landlord has the right but not the obligation to rebuild, repair or
replace at Tenant's expense so much of the partitions, fixtures, additions, and
other improvements as may be necessary to insure that the Premises are
materially restored.
23. LIABILITIES OF THE PARTIES: Tenant waives all claims against Landlord for
damages to goods of for injuries to persons on or about the Premises or common
areas from any cause arising at any time other than damages or injuries directly
resulting from Landlord or Landlord's agents or employees negligence or willful
misconduct. The tenant will indemnify Landlord on account of any damage or
injury to any persons, or to the goods of any person, arising from the use of
the Premises by the Tenant, or arising from the failure of Tenant to keep the
Premises in good condition as provided herein. The Landlord shall not be liable
to the Tenant for any damage by or from any act of negligence of any occupant of
the same Building, or by any owner or occupant of adjoining or contiguous
property.
Landlord waives all claims against Tenant for damages to goods or for
injuries on or about the Premises or common areas from any cause arising at any
time other than damages or injuries directly resulting from Tenant or Tenant's
agents or employees negligence or willful misconduct or Tenant's breach of its
obligation under this Lease. The Landlord will indemnify Tenant on account of
any damage or injury to any person, or to the goods of any person arising from
the negligence or willful misconduct of Landlord, its agents or employees.
The Tenant agrees to pay for all damages to the Building, as well as
all damage or injuries suffered by Tenant or occupants thereof caused by misuse
or neglect of the Premises by the Tenant to the extent not covered by insurance.
Landlord is specifically not responsible under any circumstance for any
damage to any computer, computer component, or computer peripheral, hardware or
software damaged by any interruption, usage or variation for whatever reason in
the electrical distribution system in the building.
Notwithstanding any other term or provision herein contained, it is
specifically understood and agreed that there shall be no personal liability of
Landlord (nor Landlord's agent, if any) in respect to any of the covenants,
conditions or provisions of this Lease. In the event of a breach or default by
Landlord of any of its obligations under this Lease, Tenant shall look solely to
the equity of the Landlord in the property for the satisfaction of Tenant's
remedies.
24. PARKING: The Landlord warrants that it will, without charge and throughout
the term of this Lease and any extensions or renewals thereof, provide the
Tenant with parking around the demised Premises which complies with applicable
city or county code. Tenant agrees to comply with the parking rules contained in
the Parking Rules and Regulations attached hereto as Exhibit "E" together with
all reasonable modifications and additions thereto which Landlord may from time
to time make.
10
25. SIGNS: Landlord hereby agrees to allow Tenant to have a lighted or
spot-lighted sign, as long as such sign complies with standard building
finished. Said sign shall be at the sole expense of the Tenant.
26. UTILITIES: Landlord will provide utility service connections to the
Premises, including electrical service, natural gas (where available), water and
sewer.
Tenant shall procure for its own account and shall pay the cost of all
water, gas, electric power and fuel consumed or used in or at said Premises,
including appropriate deposits as required. Landlord shall not be liable to
Tenant in damages or otherwise for any interruptions, curtailments or suspension
of utility service. Tenant's responsibility for the payment of said utilities
shall begin upon entering the Premises for the purpose of construction and
fixturing.
Tenant shall be directly responsible for the cost and expense
associated with all utilities used by the Tenant in the Premises.
27. HEAT, VENTILATION, AND CLIMATE CONTROL COMFORT: Landlord has installed HVAC
equipment to provide adequate comfort (72-76 degrees) for normal office user
load requirements (one ton per 300 square feet). If determined before or during
Tenant's occupancy that the Tenant's use of high heat output equipment or other
intensive uses (i.e.: computer rooms, telephone rooms or work stations at
greater density than one person per 100 square fee), requires additional cooling
equipment, Landlord will install necessary additional HVAC equipment at Tenant's
sole expense.
28. PLATE GLASS BREAKAGE: Notwithstanding anything herein to the contrary,
except by negligence of Landlord, Tenant shall be solely responsible for repair
and replacement in the event of plate glass damage or breakage.
29. GARBAGE REMOVAL: Tenant will be responsible for providing a container for
garbage and arrange for its systematic pickup.
30. JANITORIAL SERVICES: Tenant shall provide janitorial services and supplies
to the Premises, at its own expense.
31. FIRE EXTINGUISHERS: Tenant covenants during the Term and such further time
as Tenant occupies any part of the Premises to keep the Premises equipped with
all safety appliances, included but not limited to an operating fire
extinguisher, required by law or ordinance or any other regulation of any public
or private authority having jurisdiction over the Premises (including insurance
underwriters or rating bureaus) because of any use made by Tenant and to procure
all licenses and permits so required because of such use and, if required by
Landlord, to do any work so required because of such use, it being understood
that the foregoing provisions shall not be construed to broaden in any way
Tenant's permitted uses.
32. EXTERMINATION: The Tenant shall, at it sole cost and expense, on at least a
quarterly basis, employ professional exterminators to control pests within the
Premises and supply Landlord with a copy of the contract therefor.
33. STORING OF FLAMMABLE MATERIALS: The Tenant agrees that it will store any
Dangerous/Flammable Materials in accordance with all applicable laws.
34. REPLACEMENT OF LIGHT BULBS: Tenant shall, at its sole cost and expense,
replace all light bulbs within the Premises.
35. KITCHEN APPLIANCES AND EQUIPMENT: In the event of installation of a kitchen
or kitchen equipment by either Landlord or Tenant, such maintenance and repair
of all items contained within the area shall be at the sole cost and expense of
Tenant, to include but not limited to: maintenance, repair and replacement of a
microwave oven, refrigerator, stove, ice maker, coffee maker, garbage disposal,
dishwasher, sink, faucet or any other item within the area. Tenant hereby
acknowledges to Landlord that any fixtures, excluding trade fixtures, described
herein are to become a
11
part of the Premises and notwithstanding Section 36 herein, upon Tenant's
vacating the Premises, all fixtures shall remain the property of Landlord.
36. REMOVAL OF TENANT'S FIXTURES: The Tenant shall have the privilege at any
time, on or before vacating the Premises, of removing any or all of its personal
property, equipment and fixtures, and Tenant shall repair any damage caused by
the removal thereof and shall leave the Premises in good and clean condition and
repair.
37. DEFAULT BY TENANT: In the event Tenant shall fail to pay the monthly rental
rate by the due date, and such failure continues for five (5) business days
after Tenant receives notice of such nonpayment, which notice shall not be given
more than two (2) times annually during the term of this Lease, or if Tenant is
adjudicated a bankrupt; or if Tenant files a petition in bankruptcy under any
section or provision of the bankruptcy law, or if an involuntary petition in
bankruptcy is filed against Tenant, and same is not withdrawn or dismissed
within sixty (60) days from filing thereof, or if a receiver or trustee is
appointed for Tenant's property and the order appointing such receiver or
trustee remains in force for thirty (30) days after the entry of such order, or
if, whether voluntarily or involuntarily, Tenant takes advantage of any debtor
relief proceedings under any present or future law, reduced payment thereof
deferred, or if Tenant makes an assignment for the benefit of the creditors, or
if Tenant's effects shall be levied upon or attached under process against
Tenant, not satisfied or dissolved within thirty (30) days after written notice
from Landlord to Tenant to obtain satisfaction thereof, or if Tenant shall
vacate or abandon the Premises, or if Tenant shall fail to perform or observe
any other covenant, agreement, or condition to be performed or kept by the
Tenant under the terms and provisions of this Lease, and such failure shall
continue to thirty (30) days after written notice thereof has been given by
Landlord to Tenant, then in any one of such events, Landlord shall have the
right, at the option of the Landlord, then or at any time thereafter while such
defaults continue, to elect either: (1) to cure such default or defaults at the
expense of Tenant and without prejudice to any other remedies which it might
otherwise have, any payment made or expenses incurred by Landlord in curing such
default shall bear interest thereon at 10% per annum, or at such maximum legal
rate as permitted by North Carolina law, whichever shall be lower, to be and
become additional rent to be paid by Tenant with the next installment of rent
falling due thereafter, or (2) to re-enter the Premises and dispossess Tenant
and anyone claiming under tenant, with or without an order of the court, and
remove their effects, and take complete possession of the Premises and then
elect to take any one or (to the extent not inconsistent) more of the following
actions: (i) declare this Lease forfeited and the term ended; or (ii) elected to
continue this lease in full force and effect, but with the right at any time
thereafter to declare this Lease forfeited and the term ended; or (iii) declare
Tenant's right to possession of the Premises to be terminated; or (iv) exercise
any other remedies or maintain any action permitted to landlords pursuant to the
laws of the State of North Carolina, or any other applicable law. In such
re-entry the Landlord may, without committing trespass, have all persons and
Tenant's personal property removed from the Premises. Tenant hereby covenants in
such event for itself and all others occupying the Premises under Tenant; to
peacefully yield up and surrender the Premises to the Landlord. Should Landlord
declare either (i) this Lease forfeited and the term ended; (ii) the termination
of Tenant's right to possession of the Premises; then in any one such events,
Landlord shall be entitled to recover from Tenant the rental and all other sums
due and owing by Tenant to the date of termination, plus the costs of curing all
of Tenant's defaults existing at or prior to the date of termination, plus
rental for the balance of the term under this Lease less any rental obtained by
Landlord on another Lease for the balance of the term remaining under this
Lease. Should Landlord, following default as aforesaid, elect to continue this
Lease in full force, Landlord shall use its best efforts to rent the Premises by
private negotiations, with or without advertising, and on the best terms
available for the remainder of the term hereof, or for such longer or shorter
period as Landlord shall deem advisable. Tenant shall remain liable for payment
of all rentals and other charges and costs imposed on Tenant herein, in the
amounts, at the times and upon the conditions as herein provided, but Landlord
shall credit against such liability of the Tenant all amounts received by
Landlord from such re-letting after first reimbursing itself for all costs
incurred in curing Tenant's defaults and re-entering, preparing and refinishing
the Premises for re-letting, and the Premises, and for the payment of any
procurement fee and commission paid to obtain another tenant, and for all
attorney fees and legal costs incurred by Landlord.
As used in this Lease the term "attorney's fees" or "reasonable
attorney's fees" shall mean actual fees incurred at customary hourly rates
notwithstanding any statutory presumption.
12
38. RE-ENTRY BY LANDLORD: No re-entry by landlord or any action brought by
landlord to oust Tenant from the premises shall operate to terminate this lease
unless Landlord shall give written notice of termination to Tenant, in which
event Tenant's liability shall be as above provided. No right or remedy granted
to landlord herein is intended to be exclusive of any other right or remedy, and
each and every right and remedy herein provided shall be cumulative and in
addition to any other right or remedy hereunder or now or hereafter existing in
law or equity or by statute. In the event of termination of this lease, Tenant
waives any and all rights to redeem the Premises either given by any statute now
in effect or hereafter enacted.
39. WAIVER OF RIGHTS: No waiver by Landlord of any provision hereof shall be
deemed to be a waiver of any other provision hereof or of any subsequent breach
by Tenant of the same or any other provision. Landlord's consent to or approval
of any act shall not be deemed to render unnecessary the obtaining of Landlord's
consent to or approval of any subsequent act by Tenant. The acceptance of rent
hereunder by Landlord shall not be a waiver of any preceding breach by Tenant of
any provision hereof other than the failure of Tenant to pay the particular rent
as accepted regardless of Landlords' knowledge of said preceding breach at the
time of acceptance of such rent.
41. NOTICES: All notices provided for herein shall be in writing and shall be
deemed to have been given when deposited in the United States mails, postage
fully prepaid, and directed to the parties hereto at their respective addresses
give below:
Landlord: HIGHWOODS/FORSYTH LIMITED PARTNERSHIP
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx-Xxxxx, Xxxxx Xxxxxxxx 00000
Tenant: R.F. MICRO DEVICES, INC.
000 Xxxxxxxxx Xxxxx Xxxx, Xxxxx X
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000
Either party may, in addition, deliver written notice by hand delivery.
Further, the parties hereto may give or receive notice by or from their
respective attorneys and may, by like notice, designate a new address to which
subsequent notice shall be directed.
42. COMPLIANCE WITH LAWS: In addition to other provisions herein, Tenant shall
promptly execute and comply with all laws, ordinances, rules, regulations and
requirements of any or all federal, state and municipal authorities having
jurisdiction over the manner in which the Tenant's business is conducted, but
only insofar as these laws, ordinances, rules and regulations and requirements
are violated by the conduct of Tenant's business.
43. RULES AND REGULATIONS: Tenant, its agents, servants and invitees shall
observe faithfully and comply strictly with the rules and regulations set forth
on the schedule designated BUILDING RULES AND REGULATIONS, attached hereto as
Exhibit "C" and by this reference made a part hereof. Landlord shall have the
right, from time to time, during the term of this Lease to make reasonable
changes in, and additions to, said rules and regulations, provided such changes
and additions do not unreasonably affect the conduct of Tenant's business in the
Premises. Any failure by Landlord to enforce any said rules and regulations now
or hereafter in effect, either against Tenant or any other tenant in the
Building, shall not constitute a waiver of such rules and regulations. The
defined words in this Lease, whenever used in said rules and regulations, shall
have the same meanings as herein.
As used in this agreement, "Hazardous Materials" shall mean any
hazardous or toxic substance, material, water or similar term which is regulated
by local authorities, the State of North Carolina or the United States of
America, including, but not limited to, any material, substance, waste or
similar term which is (i) defined as a hazardous material under the laws of the
State of North Carolina; (ii) defined as a hazardous substance under Section 311
of the Federal Water Pollution Control Act (33 U.S. C. Section 1317); (iii)
defined as a hazardous waste under Section 1004 of the Federal Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.); (iv) defined as
a hazardous waste substance under Section 101 of the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C.
13
Section 9601 et seq.); (v) defined as a hazardous waste or toxic substance,
waste, material or similar term in rules and regulations, as amended from time
to time, which are adopted by any administrative agency including, but not
limited to, the Environmental Protection Agency, the Occupational Safety and
Health Administration, and any such similar local, state or federal agency
having jurisdiction over the Premises whether or not such rules and regulations
have the force of law; (vi) defined as a hazardous or toxic waste, substance,
material or similar term in any statute, regulation, rule or law enacted or
adopted at any time after the date of this agreement by local authorities, the
State of North Carolina, or the federal government.
The Tenant agrees that any discharge from the Premises of any Hazardous
Material shall comply with applicable laws and/or permit. Tenant shall
immediately notify the Landlord of any discharge that does not materially comply
with applicable laws and/or permitted levels.
The Tenant shall promptly pay, discharge or remove any lien upon the
Premises relating to the presence of any Hazardous Material, and shall indemnify
and hold harmless the Landlord, from any and all loss, damage or expense
resulting from such Hazardous Material that exists upon or is discharges from
the Premises in violation of any law by Tenant.
This indemnification of Landlord by Tenant includes, without
limitation, costs incurred in connection with any investigation of site
conditions or any clean-up, remedial, removal or restoration work required by
any federal, state or local governmental agency or political subdivision because
of Hazardous Materials present in the soil or ground water on or under the
Premises. Without limiting the foregoing, if the presence of any Hazardous
Material on the Premises and Building caused or permitted by Tenant results in
levels of Hazardous Materials, Tenant shall promptly take all actions at its
sole expense that are necessary to return the same to the condition existing
prior to the introduction of any such hazardous material thereto, provided that
Landlord's approval of such actions shall first be obtained, which approval
shall not be unreasonably withheld so long as such actions would not potentially
have any material adverse long-term or short-term effect on the Premises and
Building. The foregoing indemnity shall survive the expiration or earlier
termination of this Lease. If Tenant falls to take such action and unless
Tenant's failure is due to Landlord's unreasonably withholding approval of
Tenant's actions, Landlord may take action and Landlord shall be entitled to
recover from Tenant, upon demand in writing, all costs of such action. This
indemnification excludes any and all environmental conditions that are currently
present on the Premises.
45. SURRENDER: The Tenant shall surrender the premises in good and clean
condition and repair, excepting only normal wear and tear and damage by fire or
other casualty damage covered by insurance and paid to Landlord. Tenant shall
not remain in the Premises without the benefit of a written Lease or renewal
agreement executed by the parties hereto prior to the expiration of the then
existing term. No other holding over of the Premises shall be allowed on any
basis whatsoever.
The delivery of keys or after such tender of possession of the Premises
to Landlord or to an employee of Landlord shall not operate as a termination of
this Lease or a surrender of the premises.
Any pro-rated rent or damages in excess of the security deposit held by
Landlord shall be invoiced by Landlord and payable by Tenant within ten (10)
days from the date of invoice.
46. HOLDOVER: In the event Tenant remains in possession of the leased premises
after the expiration of the term of this Lease, without having first extended
this Lease by written agreement with Landlord, such holding over shall not be
construed as a renewal or extension of this Lease. Such holding over shall be
deemed to have created and be construed as tenancy from month to month,
terminable on 30 days notice in writing from either party to the other. The
monthly rental to be paid shall be 150% of the monthly rental payable during the
last month of the term of this Lease. All other terms and conditions of this
Lease shall continue to be applicable for both Landlord and Tenant.
If Tenant fails to surrender the premises to Landlord on expiration of
the term as required by this Section, Tenant shall hold Landlord harmless from
all damages resulting from Tenant's failure to surrender the Premises,
14
including without limitation, claims made by the succeeding Tenant resulting
from Tenant's failure to surrender the premises.
47. LIENS: If Tenant shall cause any material to be furnished to the Premises or
labor to be performed thereon or therein, Landlord shall not under any
circumstances be liable for the payment of any expenses incurred or for the
value of any work done or material furnished. All such work shall be at Tenant's
expense and Tenant shall be solely and wholly responsible to all contractors,
laborers, and materialmen furnishing labor and material to the Premises. Nothing
herein shall authorize the Tenant or any person dealing through, with or under
Tenant to charge the Premises or any interest of the Landlord therein or this
Lease with any mechanic's liens or other liens or encumbrances whatsoever. On
the contrary, (and notice is hereby given) the right and power to charge any
lien or encumbrance of any kind against the Landlord or its estate is hereby
expressly denied.
48. BENEFITS, BURDENS AND ENTIRE AGREEMENT: This Lease is binding on and
benefits the parties hereto and their respective heirs, legal representatives,
successors, nominees and assigns. Liability hereunder shall be joint and several
upon all who sign this agreement. Throughout this agreement the masculine gender
shall be deemed to include the feminine, the feminine the masculine, the
singular the plural and the plural the singular.
This Lease contains the entire agreement between the parties hereto
with respect to the Premises leased hereunder; further, this Lease may not be
modified, altered or amended except by an instrument in writing, executed by the
parties hereto or their respective heirs, legal representatives, successors,
nominees or assigns and which instrument shall be attached hereto as an
amendment to this Lease and shall thereby become a part hereof.
49. ATTORNEY'S FEES: If either Landlord or Tenant files an action to enforce any
agreement contained in this Lease, or for breach of any covenant or condition,
the prevailing party in any such action, or the party settling to its benefit,
shall be reimbursed by the other party for reasonable attorneys' fees in the
action.
In the event Landlord refers a default by Tenant to an attorney for
collection and a suit is not filed, Tenant agrees to pay reasonable attorney
fees if action is not filed thereunder.
50. GOVERNING LAW: This Lease shall be governed by and construed under the laws
of the State of North Carolina.
51. ESTOPPEL CERTIFICATES: Tenant shall execute and deliver to Landlord, upon
its occupancy of the Premises, a certificate/statement provided by Landlord,
certifying that this Lease is unmodified and in full force and effect and other
factual data relating to the Lease or the Premises which Landlord may reasonably
request. Furthermore, Tenant may be required, from time to time during the term
of the Lease, to execute and deliver to Landlord a certificate/statement for
purposes of refinancing, syndication, sale of property, etc. In such event,
Tenant shall have ten (10) days from its receipt thereof from Landlord to
execute and deliver such fully executed certificate/statement to Landlord.
Tenant's failure to execute said certificate shall constitute a default
hereunder. During the term of this Lease, the Landlord will, upon written
request by Tenant, provide Tenant with similar estoppel certificates as
described above.
52. BROKERAGE FEES: Landlord and Tenant represent to each other that no broker
("Broker") has represented either party in respect to this transaction.
53. CHRONIC DEFAULTS: Tenant will be in "Chronic Default" under this Lease if
Tenant commits a default (either a Monetary or Non-Monetary Default) during any
365-day period in which any of the following combinations of default has already
occurred (even though said defaults may have been timely cured):
(1) Two Monetary Defaults; or
(2) Three Non-Monetary Defaults; or
15
(3) One Monetary Default and two Non-Monetary Defaults
(a) Remedies. If Tenant is in Chronic Default, Landlord may immediately
exercise any or all remedies available under this Lease or at law or in equity,
all without giving Tenant any notice or an opportunity to cure the last default
causing Tenant's Chronic Default (notwithstanding any notice and cure provision
or other lease provision to the contrary).
(b) Definitions. For the purpose of this Section, (1) a Monetary
Default occurs if Tenant fails to pay any sum of money when due (including, but
not limited to, Base Rent, Additional Rent, Percentage Rent, Escalation Rent,
Common Area Maintenance Charges, Utility Charges, Pass-thru Expenses, or other
Rent); (2) a Non-Monetary Default occurs if Tenant fails to perform any of its
obligations under this Lease other than the timely payment of money.
54. EVIDENCE OF AUTHORITY: If requested by Landlord, Tenant shall furnish
appropriate legal documentation evidencing the valid existence and good standing
of Tenant and the authority of any parties signing this lease to act for Tenant.
If Tenant signs as a corporation, each of the persons executing this Lease on
behalf of Tenant does hereby covenant and warrant that Tenant is a duly
authorized and existing corporation, that Tenant has and is qualified to do
business in North Carolina, that the corporation has full right and authority to
enter into this Lease and that each of the persons signing on behalf of the
corporation is authorized to do so.
16
IN WITNESS WHEREOF, the parties hereto have executed this Lease
Agreement or have caused their duly authorized representatives to execute same
in two (2) original counterparts, as of the day and year first above written.
Landlord:
Highwoods/Forsyth Limited Partnership,
a North Carolina General Partnership
By: Highwoods Properties, Inc., General Partner
By: /s/ Xxxx X. Xxxx, III, Vice President
Attest:
/s/ Xxxxx X. Gioco
Assistant Secretary
(Corporate Seal)
Tenant:
RF Micro Devices, Inc.,
a North Carolina corporation
By: /s/ Xxxxx X. Xxxxxxx, President
Attest:
/s/ Xxxxxxx X. Xxxxxx, Xx.
Assistant Secretary
(Corporate Seal)
