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EXHIBIT 10.4
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LEASE AGREEMENT
by and between
AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
as Landlord
and
PLX TECHNOLOGY, INC.,
a California corporation
as Tenant
dated December __, 1995
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LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into by and between Landlord
and Tenant on the Lease Date. The defined terms used in this Lease which are
defined in the Basic Lease Information attached to this Lease Agreement ("Basic
Lease Information") shall have the meaning and definition given them in the
Basic Lease Information. The Basic Lease Information, the exhibits, and this
Lease Agreement are and shall be construed as a single instrument and are
referred to herein as the "Lease".
1. DEMISE: In consideration for the rents and all other charges and
payments payable by Tenant, and for the agreements, terms and conditions to be
performed by Tenant in this Lease, LANDLORD DOES HEREBY LEASE TO TENANT, AND
TENANT DOES HEREBY HIRE AND TAKE FROM LANDLORD, the Premises described below
(the "Premises"), upon the agreements, terms and conditions of this Lease for
the Term hereinafter stated.
2. PREMISES: The Premises demised by this Lease is the building (the
"Building") specified in the Basic Lease Information. The Building contains the
square footage specified in the Basic Lease Information. The location and
dimensions of the Premises are depicted on Exhibit A, which is attached hereto
and incorporated herein by this reference. Tenant shall have the non-exclusive
right to use the parking and other common areas on the real property on which
the Building is situated (the "Property"). No easement for light or air is
incorporated in the Premises.
The Premises demised by this Lease shall also include the Tenant
Improvements (as that term is defined in Exhibit B, attached hereto and
incorporated herein by this reference) to be constructed by Landlord within the
interior of the Premises. Landlord shall construct the Tenant Improvements on
the terms and conditions set forth in Exhibit B. Landlord and Tenant agree to
and shall be bound by the terms and conditions of Exhibit B.
3. TERM: The term of this Lease (the "Term") shall be for the period of
months specified in the Basic Lease Information, commencing on the earliest to
occur of the following dates (the "Commencement Date"):
(a) The date the Tenant Improvements are approved by the
appropriate governmental agency as being in accordance with its building code
and the building permit issued for such improvements, as evidenced by the
issuance of a final building inspection approval; provided, however, that the
date determined pursuant to this Paragraph 3(a) shall not be earlier than March
1, 1995; or
(b) The date Landlord's architect and general contractor have
both certified in writing to Tenant that the Tenant Improvements have been
substantially completed in accordance with the plans and specifications
therefor; provided, however, that the date determined pursuant to this Paragraph
3(b) shall not be earlier than March 1, 1995; or
(c) The date Tenant commences occupancy of the Premises;
provided, however, that Tenant shall not be deemed to have commenced occupancy
of the Premises if
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Tenant enters upon the Premises solely for the purpose of installing its
telephone equipment and preparing the Premises for occupancy in accordance with
Section 7(c) below; when the Commencement Date has been determined pursuant to
the foregoing, Landlord and Tenant shall promptly execute a Commencement Date
Memorandum in the form attached hereto as Exhibit C.
4. RENT:
(a) Base Rent. Tenant shall pay to Landlord, in advance on the
first day of each month, without further notice or demand and without offset or
deduction, the monthly installments of rent specified in the Basic Lease
Information (the "Base Rent").
Upon execution of this Lease, Tenant shall pay to Landlord the
Prepaid Rent specified in the Basic Lease Information to be applied toward Base
Rent for the month of the Term specified in the Basic Lease Information.
(b) Additional Rent. This Lease is intended to be a net Lease;
and subject to Paragraph 12(c) below, the Rent owing hereunder is to be paid by
Tenant absolutely net of all costs and expenses relating to Landlord's ownership
of the Property and the Building. The provisions of this Paragraph 4(b) for the
payment of Expenses (as hereinafter defined) are intended to pass on to Tenant
all such costs and expenses. In addition to the Base Rent, Tenant shall pay to
Landlord, in accordance with this Paragraph 4, all costs and expenses paid or
incurred by Landlord in connection with the management, operation, maintenance
and repair of the Property and the Building (the "Expenses"), including, without
limitation, all the following items related to the Premises, the Building, the
Property, and/or the Outside Areas (as defined in Paragraph 4(b)(3)) (the
"Additional Rent"):
(1) Taxes and Assessments. All real estate taxes and
assessments shall include any form of assessment, license, fee, tax, levy,
penalty (if a result of Tenant's delinquency), or tax (other than net income,
estate, succession, inheritance, transfer or franchise taxes), imposed by any
authority having the direct or indirect power to tax, or by any city, county,
state or federal government or any improvement or other district or division
thereof, whether such tax is (i) determined by the area of the Premises, the
Building or the Property, or any part thereof, or the Rent and other sums
payable hereunder by Tenant or by other tenants, including, but not limited to,
any gross income or excise tax levied by any of the foregoing authorities with
respect to receipt of Rent or other sums due under this Lease; (ii) upon any
legal or equitable interest of Landlord in the Premises, the Building or the
Property, or any part thereof; (iii) upon this transaction or any document to
which Tenant is a party creating or transferring any interest in the Premises,
the Building or the Property; (iv) levied or assessed in lieu of, in
substitution for, or in addition to, existing or additional taxes against the
Premises, the Building or the Property, whether or not now customary or within
the contemplation of the parties; or (v) surcharged against the parking area.
Tenant and Landlord acknowledge that Proposition 13 was adopted by the voters of
the State of California in the June, 1978 election and that assessments, taxes,
fees, levies and charges may be imposed by governmental agencies for such
purposes as fire protection, street, sidewalk, road, utility construction and
maintenance, refuse removal and for other governmental services which may
formerly have been provided without charge to property owners or occupants. It
is the intention of the parties that all new and
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increased assessments, taxes, fees, levies and charges due to Proposition 13 or
any other cause are to be included within the definition of real property taxes
for purposes of this Lease.
(2) Insurance. All insurance premiums, including premiums
for "all risk" fire and extended coverage (including earthquake endorsements)
insurance for the Premises and the Building, public liability insurance, other
insurance as Landlord deems necessary, and any deductibles paid under policies
of any such insurance.
(3) Outside Areas Expenses. All costs to maintain,
repair, replace, supervise, insure (including provision of public liability
insurance) and administer the areas outside of the Premises and the Building
("Outside Areas"), including parking areas, landscaping (including maintenance
contracts), sprinkler systems, sidewalks, driveways, curbs, lighting systems,
and utilities for Outside Areas.
(4) Parking Charges. Any parking charges or other costs
levied, assessed or imposed by, or at the direction of, or resulting from
statutes or regulations, or interpretations thereof, promulgated by any
governmental authority or insurer in connection with the use or occupancy of the
Premises, the Building, the Outside Areas and/or the Property.
(5) Maintenance and Repair of Premises and Building.
Except for costs which are the responsibility of Landlord pursuant to Section
12(c) below, all costs to maintain, repair, and replace the Premises and the
Building, including without limitation, the roof coverings of the Premises and
the Building, the heating, ventilation, and air conditioning ("HVAC") systems
serving the Premises and the Building (including the cost of maintenance
contracts), and all utility and plumbing systems, fixtures and equipment serving
the Premises and the Building but which are located in the Outside Areas.
(6) Management and Administration. All costs for
management and administration of the Premises, the Building and the Property,
including a property management fee, accounting,-auditing, billing, postage,
employee benefits, payroll taxes, etc.
(c) Payment of Additional Rent.
(1) Upon commencement of this Lease, Landlord shall
submit to Tenant an estimate of monthly Additional Rent for the period between
the Commencement Date and the following December 31 and Tenant shall pay such
estimated Additional Rent on a monthly basis concurrently with the payment of
the Base Rent. Tenant shall continue to make said monthly payments until
notified by Landlord of a change therein. By March 1 of each calendar year,
Landlord shall endeavor to provide to Tenant a statement showing the actual
Additional Rent due to Landlord for the prior calendar year, prorated from the
Commencement Date during the first year. If the total of the monthly payments of
Additional Rent that Tenant has made for the prior calendar year is less than
the actual Additional Rent chargeable to Tenant for such prior calendar year,
then Tenant shall pay the difference in a lump sum within ten (10) days after
receipt of such statement from Landlord. Any overpayment by Tenant of Additional
Rent for the prior calendar year shall be credited towards the Additional Rent
next due.
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(2) The actual Additional Rent for the prior calendar year
shall be used for purposes of calculating Tenant's monthly payment of estimated
Additional Rent for the current year, subject to adjustment as provided above,
except that in any year in which resurfacing of the parking area or material
roof repairs are planned, Landlord may include the estimated cost of such work
in the estimated monthly Additional Rent. Landlord shall make the final
determination of Additional Rent for the year in which this Lease terminates as
soon as possible after termination of such year. Tenant shall remain liable for
payment of any amount due to Landlord in excess of the estimated Additional Rent
previously paid by Tenant, and, conversely, Landlord shall promptly return to
Tenant any overpayment, even though the Term has expired and Tenant has vacated
the Premises. Failure of Landlord to submit statements as called for herein
shall not be deemed a waiver of Tenant's obligation to pay Additional Rent as
herein provided.
(d) General Payment Terms. The Base Rent, Additional Rent,
amortization payments on the Tenant Improvement Loan (as defined in Exhibit B),
if any, and all other sums payable by Tenant to Landlord hereunder are referred
to as the "Rent". All Rent shall be paid without deduction, offset or abatement
in lawful money of the United States of America. Checks are to be made payable
to Xxxx Management Services, Inc. and shall be mailed to: Xxxx Management
Services, Inc., Agents for Sunnyvale Pension, Dept. No. 66169, Xx Xxxxx,
Xxxxxxxxxx 00000, or to such other person or place as Landlord may, from time to
time, designate to Tenant in writing. Rent for any partial month during the Term
shall be prorated for the portion thereof falling due within the Term.
5. LATE CHARGE: Notwithstanding any other provision of this Lease,
Tenant hereby acknowledges that late payment to Landlord of Rent, or other
amounts due hereunder will cause Landlord to incur costs not contemplated by
this Lease, the exact amount of which will be extremely difficult to ascertain.
If any Rent or other sums due from Tenant are not received by Landlord or by
Landlord's designated agent within ten (10) days after their due date, then
Tenant shall pay to Landlord a late charge equal to ten percent (10%) of such
overdue amount, plus any attorneys' fees incurred by Landlord by reason of
Tenant's failure to pay Rent and/or other charges when due hereunder. Landlord
and Tenant hereby agree that such late charges represent a fair and reasonable
estimate of the cost that Landlord will incur by reason of Tenant's late
payment. Landlord's acceptance of such late charges shall not constitute a
waiver of Tenant's default with respect to such overdue amount or estop Landlord
from exercising any of the other rights and remedies granted under this Lease.
Initials: Landlord ________ Tenant __________
6. SECURITY DEPOSIT: Concurrently with Tenant's execution of the Lease,
Tenant shall deposit with Landlord the Security Deposit specified in the Basic
Lease Information as security for the full and faithful performance of each and
every term, covenant and condition of this Lease. Landlord may use, apply or
retain the whole or any part of the Security Deposit as may be reasonably
necessary (a) to remedy Tenant's default in the payment of any Rent, (b) to
repair damage to the Premises caused by Tenant, (c) to clean the Premises upon
termination of this Lease, (d) to reimburse Landlord for the payment of any
amount which Landlord may reasonably spend or be required to spend by reason of
Tenant's default, or (e) to compensate
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Landlord for any other loss or damage which Landlord may suffer by reason of
Tenant's default. Should Tenant faithfully and fully comply with all of the
terms, covenants and conditions of this Lease, within thirty (30) days following
the expiration of the Term, the Security Deposit or any balance thereof shall be
returned to Tenant or, at the option of Landlord, to the last assignee of
Tenant's interest in this Lease. Landlord shall not be required to keep the
Security Deposit separate from its general funds and Tenant shall not be
entitled to any interest on such deposit. If Landlord so uses or applies all or
any portion of said deposit, within five (5) days after written demand therefor
Tenant shall deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to the full extent of the above amount, and Tenant's failure to
do so shall be a default under this Lease. In the event Landlord transfers its
interest in this Lease, Landlord shall transfer the then remaining amount of the
Security Deposit to Landlord's successor in interest, and thereafter Landlord
shall have no further liability to Tenant with respect to such Security Deposit.
7. POSSESSION:
(a) Tenant's Right of Possession. Subject to Paragraph 7(b),
Tenant shall be entitled to possession of the Premises upon commencement of the
Term.
(b) Delay in Delivering Possession. If for any reason whatsoever,
Landlord cannot deliver possession of the Premises to Tenant at the commencement
of the Term, this Lease shall not be void or voidable, nor shall Landlord, or
Landlord's agents, be liable to Tenant for any loss or damage resulting
therefrom. Tenant shall not be liable for Rent until Landlord delivers
possession of the Premises to Tenant. The expiration date of the Term shall be
extended by the same number of days that Tenant's possession of the Premises was
delayed.
(c) Early Access. Notwithstanding anything to the contrary
contained in Section 7(a) above, Tenant shall have the right to enter upon the
Premises at such times as shall be acceptable to Landlord during the two (2)
week period preceding the Commencement Date solely for the purpose of installing
telephone equipment and preparing the Premises for Tenant's occupancy, provided,
however, that Tenant shall not be permitted to conduct business in the Premises
during such period, and, provided further, that Landlord shall not be liable to
Tenant or its employees or agents for any loss or damage to property, or injury
to person, arising from or related to the construction of the Tenant
Improvements. Tenant shall take all reasonable precautions to protect against
such loss, damage or injury during the construction of the Tenant Improvements,
and shall not interfere with such construction. Tenant shall cooperate with all
reasonable directives of Landlord in order to minimize any disruption or delay
in completion of the Tenant Improvements. Tenant's entry upon the Premises
pursuant to this Section 7(c) shall be subject to all of the terms and
conditions of this Lease, excepting only the covenant to pay Rent.
8. USE OF PREMISES:
(a) Permitted Uses. The Premises shall be used for the Permitted
Uses specified in the Basic Lease Information and for no other use. The Premises
shall not be used to create any nuisance or trespass, for any illegal purpose,
for any purpose not permitted by
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applicable laws and regulations, or for any purpose that would vitiate the
insurance or increase the premiums for insurance on the Premises or the
Building. Tenant agrees not to overload the floor(s) of the Premises.
(b) Compliance with Governmental Regulations. Tenant shall, at
Tenant's expense, faithfully observe and comply with all municipal, state and
federal statutes, rules, regulations, ordinances, requirements, and orders, now
in force or which may hereafter be in force pertaining to the Premises or
Tenant's use thereof, including without limitation, any statutes, rules,
regulations, ordinances, requirements, or orders requiring installation of fire
sprinkler systems, seismic reinforcement and related alterations, and removal of
asbestos, whether substantial in cost or otherwise, and all recorded covenants,
conditions and restrictions affecting the Property ("Private Restrictions") now
in force or which may hereafter be in force; provided, however, that Tenant
shall not be required to make structural changes to the Premises not related to
Tenant's specific use of the Premises unless the requirement for such changes is
imposed as a result of any improvements or additions made or proposed to be made
at Tenant's request; and, provided further, that, subject to Exhibit B hereto,
Tenant shall not be required to make any changes to the Premises necessitated by
the Americans with Disabilities Act not related to Tenant's specific use of the
Premises unless the requirement for such changes is imposed as a result of any
improvements or additions made or proposed to be made at Tenant's request. The
judgment of any court of competent jurisdiction, or the admission of Tenant in
any action or proceeding against Tenant, whether Landlord be a party thereto or
not, that Tenant has violated any such rule, regulation, ordinance, statute or
Private Restrictions, shall be conclusive of that fact as between Landlord and
Tenant.
9. ACCEPTANCE OF PREMISES: By entry hereunder, Tenant accepts the
Premises as suitable for Tenant's intended use and as being in good and sanitary
operating order, condition and repair, AS IS, and without representation or
warranty by Landlord as to the condition, use or occupancy which may be made
thereof. Any exceptions to the foregoing must be by written agreement executed
by Landlord and Tenant. Notwithstanding anything in this Paragraph 9 to the
contrary, Landlord shall cause the roof on the Premises to be in good condition
and the electrical, plumbing, lighting and HVAC systems to be in good working
order on the Commencement Date.
10. SURRENDER: Tenant agrees that on the last day of the Term, or on the
sooner termination of this Lease, Tenant shall surrender the Premises to
Landlord (a) in good condition and repair (damage by Acts of God, fire, and
normal wear and tear excepted), but with all interior walls painted or cleaned
so they appear painted, any carpets cleaned, and with all floors cleaned and
waxed, together with all alterations, additions and improvements which may have
been made in or on the Premises; except that Tenant shall remove trade fixtures
put in at the expense of Tenant and any alterations, additions and improvements
as to which Landlord has, prior to the date of surrender, consented to or
requested removal; and (b) otherwise in accordance with Paragraph 32(f). Tenant
shall repair all damage caused by such removal and otherwise restore the
Premises in accordance with the preceding sentence at Tenant's sole cost and
expense. On or before the expiration or sooner termination of this Lease, Tenant
shall remove all of Tenant's personal property from the Premises. All property
of Tenant not so removed, unless such non-removal is consented to by Landlord,
shall be deemed abandoned by Tenant, provided
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that in such event Tenant shall remain liable to Landlord for all costs incurred
in storing and disposing of such abandoned property of Tenant. If the Premises
are not surrendered at the end of the Term or sooner termination of this Lease,
and in accordance with the provisions of this Paragraph 10 and of Paragraph
32(f), Tenant shall indemnify, defend and hold Landlord harmless from and
against any and all loss or liability resulting from delay by Tenant in so
surrendering the Premises including, without limitation, any loss or liability
resulting from any claim against Landlord made by any succeeding tenant founded
on or resulting from such delay and losses to Landlord due to lost opportunities
to lease any portion of the Premises to succeeding tenants, together with, in
each case, actual attorneys' fees and costs.
11. ALTERATIONS AND ADDITIONS:
(a) Tenant shall not make, or permit to be made, any alteration
or addition to the Premises, or any part thereof, without the prior written
consent of Landlord, such consent not to be unreasonably withheld.
(b) Any alteration or addition to the Premises shall be at
Tenant's sole cost and expense, in compliance with all applicable laws and
requirements requested by Landlord, and in accordance with plans and
specifications approved in writing by Landlord.
(c) In the event Landlord consents to a proposed alteration or
addition, such consent shall include Landlord's advice whether or not such
proposed alteration or addition shall be required to be removed at the
expiration or termination of this Lease. If Landlord fails so to advise Tenant
regarding whether or not a proposed alteration or addition may be removed at the
expiration or termination of this Lease, then Tenant shall be required to
surrender the alteration or addition to Landlord with the Premises, without
compensation to Tenant, at the expiration or termination of this Lease. All
additions, alterations or improvements, including, but not limited to, heating,
lighting, electrical, air conditioning, fixed partitioning, drapery, wall
covering and paneling, built-in cabinet work and carpeting installations made by
Tenant, together with all property that has become an integral part of the
Premises, shall at once be and become the property of Landlord, and shall not be
deemed trade fixtures.
(d) Tenant agrees not to proceed to make such alterations or
additions, notwithstanding consent from Landlord to do so, until five (5) days
after Tenant's receipt of such consent, in order that Landlord may post
appropriate notices to avoid any liability to contractors or material suppliers
for payment for Tenant's improvements. Tenant will at all times permit such
notices to be posted and to remain posted until the completion of work.
12. MAINTENANCE OF PREMISES:
(a) Maintenance by Tenant. Throughout the Term, Tenant shall, at
its sole expense, (1) keep and maintain in good order and condition, repair, and
replace the Premises, and every part thereof, including glass, windows, window
frames, skylights, interior and exterior doors and door frames, and the interior
of the Premises, (excepting only those portions of the Premises to be maintained
by Landlord, as provided in Paragraph 12(c) below), (2) keep and maintain in
good order and condition, repair, and replace all utility and plumbing systems,
fixtures and equipment, including without limitation, electricity, gas, water,
and sewer, located in
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or on the Premises, and furnish all expendables, including light bulbs, paper
goods and soaps, used in the Premises, (3) repair all damage to the Premises or
the Outside Areas caused by the negligence or willful misconduct of Tenant or
its agents, employees, contractors or invitees. Tenant shall not do anything to
cause any damage, deterioration or unsightliness to the Premises and the Outside
Areas.
(b) Landlord's Right to Maintain and Repair at Tenant's Expense.
Notwithstanding the foregoing, Landlord shall have the right, but not the
obligation, at Tenant's expense, to enter the Premises and perform Tenant's
maintenance, repair and replacement work. Within ten (10) days after invoice
therefor from Landlord, Tenant shall pay all costs and expenses incurred by
Landlord in connection with such maintenance, repair and replacement work.
(c) Maintenance by Landlord. Subject to the provisions of
Paragraphs 12(a), 22 and 23, and further subject to Tenant's obligation under
Paragraph 4 to reimburse Landlord, in the form of Additional Rent, for the cost
and expense of the following items, Landlord agrees to repair and maintain the
following items: the roof coverings (provided that Tenant installs no additional
air conditioning or other equipment on the roof that damages the roof
coverings); the HVAC systems serving the Premises and the Building; the utility
and plumbing systems, fixtures, and equipment located outside the Premises; and
the parking areas, pavement, landscaping, sprinkler systems, sidewalks,
driveways, curbs, and lighting systems in the Outside Areas. Subject to the
provisions of Paragraphs 12(a), 22 and 23, Landlord, at its own cost and
expense, agrees to repair and maintain the following items: the structural
portions of the roof, provided that Tenant installs no additional air
conditioning or other equipment on the roof that damages structural portions of
the roof (and specifically excluding the roof coverings), the foundation, the
footings, the floor slab, the load bearing walls, and the exterior walls
(excluding any glass therein) of the Building. Landlord shall not be required to
repair or maintain conditions created due to any act, negligence or omission of
Tenant or its agents, contractors, employees or invitees. Landlord's obligation
hereunder to repair and maintain is subject to the condition precedent that
Landlord shall have received written notice of the need for such repairs and
maintenance. Tenant shall promptly report in writing to Landlord any defective
condition known to it which Landlord is required to repair, and failure to so
report such defects shall make Tenant responsible to Landlord for any liability
incurred by Landlord by reason of such condition.
(d) Tenant's Waiver of Rights. Tenant hereby expressly waives all
rights to make repairs at the expense of Landlord or to terminate this Lease, as
provided for in California Civil Code Sections 1941 and 19,42, and 1932(l),
respectively, and any similar or successor statute or law in effect or any
amendment thereof during the Term.
13. LANDLORD'S INSURANCE: Landlord shall purchase and keep in force
fire, extended coverage and "all risk" insurance covering the Premises and the
Building. Tenant shall, at its sole cost and expense, comply with any and all
reasonable requirements pertaining to the Premises and the Building of any
insurer necessary for the maintenance of reasonable fire and public liability
insurance, covering the Premises and the Building and appurtenances. Landlord,
at Tenant's cost, may maintain "Loss of Rents" insurance, insuring that the Rent
will
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be paid in a timely manner to Landlord for a period of at least twelve (12)
months if the Premises or the Building are destroyed or rendered unusable or
inaccessible by any cause insured against under this Lease.
14. TENANT'S INSURANCE:
(a) Public Liability Insurance. Tenant shall, at Tenant's
expense, secure and keep in force a "broad form" public liability insurance and
property damage policy covering the Premises, insuring Tenant, and naming
Landlord and its lenders as additional insureds, against any liability arising
out of the ownership, use, occupancy or maintenance of the Premises. The minimum
limit of coverage of such policy shall be in the amount of not less than Three
Million Dollars ($3,000,000.00) for injury or death of one person in any one
accident or occurrence and in the amount of not less than Three Million Dollars
($3,000,000.00) for injury or death of more than one person in any one accident
or occurrence, shall include an extended liability endorsement providing
contractual liability coverage (which shall include coverage for Tenant's
indemnification obligations in this Lease), and shall contain a severability of
interest clause or a cross liability endorsement. Such insurance shall further
insure Landlord and Tenant against liability for property damage of at least
Three Million Dollars ($3,000,000.00). The limit of any insurance shall not
limit the liability of Tenant hereunder. No policy shall be cancelable or
subject to reduction of coverage, and loss payable clauses shall be subject to
Landlord's approval. Such policies of insurance shall be issued as primary
policies and not contributing with or in excess of coverage that Landlord may
carry, by an insurance company authorized to do business in the State of
California for the issuance of such type of insurance coverage and rated A:XIII
or better in Best's Key Rating Guide. A copy of said policy or a certificate
evidencing to Landlord's reasonable satisfaction that such insurance is in
effect shall be delivered to Landlord upon commencement of the Term, and
thereafter whenever Landlord shall reasonably request.
(b) Personal Property Insurance. Tenant shall maintain in full
force and effect on all of its fixtures and equipment on the Premises, a policy
or policies of fire and extended coverage insurance with standard coverage
endorsement to the extent of the full replacement cost thereof. During the term
of this Lease the proceeds from any such policy or policies of insurance shall
be used for the repair or replacement of the fixtures and equipment so insured.
Landlord shall have no interest in the insurance upon Tenant's equipment and
fixtures and will sign all documents reasonably necessary in connection with the
settlement of any claim or loss by Tenant. Landlord will not carry insurance on
Tenant's possessions. Tenant shall furnish Landlord with a certificate
evidencing to Landlord's reasonable satisfaction that such insurance is in
effect, and whenever required, shall satisfy Landlord that such policy is in
full force and effect.
15. INDEMNIFICATION:
(a) Of Landlord. Tenant shall indemnify and hold harmless
Landlord and agents, employees, partners, shareholders, directors, invitees, and
independent contractors (collectively "Agents") of Landlord against and from any
and all claims, liabilities, judgments, costs, demands, causes of action and
expenses (including, without limitation, reasonable
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attorneys' fees) arising from (1) Tenant's use of the Premises or from any
activity done, permitted or suffered by Tenant in or about the Premises, the
Building or the Property, and (2) any act, neglect, fault, willful misconduct or
omission of Tenant, or Tenant's Agents or from any breach or default in the
terms of this Lease by Tenant, and (3) any action or proceeding brought on
account of any matter in items (1) or (2). If any action or proceeding is
brought against Landlord by reason of any such claim, upon notice from Landlord,
Tenant shall defend the same at Tenant's expense by counsel reasonably
satisfactory to Landlord. As a material part of the consideration to Landlord,
Tenant hereby assumes all risk of damage to property or injury to persons in or
about the Premises from any cause whatsoever (except that which is caused by the
sole active negligence or willful misconduct by Landlord or its Agents or by the
failure of Landlord to observe any of the terms and conditions of this Lease, if
such failure has persisted for an unreasonable period of time after written
notice of such failure), and Tenant hereby waives all claims in respect thereof
against Landlord. The obligations of Tenant under this Paragraph 15 shall
survive any termination of this Lease.
(b) No Impairment of Insurance. The foregoing indemnity shall not
relieve any insurance carrier of its obligations under any policies required to
be carried by either party pursuant to this Lease, to the extent that such
policies cover the peril or occurrence that results in the claim that is subject
to the foregoing indemnity.
16. SUBROGATION: Landlord and Tenant hereby mutually waive any claim
against the other during the Term for any injury to person or loss or damage to
any of their property located on or about the Premises or the Property that is
caused by or results from perils covered by insurance carried by the respective
parties, to the extent of the proceeds of such insurance actually received with
respect to such injury, loss or damage, whether or not due to the negligence of
the other party or its agents. Because the foregoing waivers will preclude the
assignment of any claim by way of subrogation to an insurance company or any
other person, each party now agrees to immediately give to its insurer written
notice of the terms of these mutual waivers and shall have their insurance
policies endorsed to prevent the invalidation of the insurance coverage because
of these waivers. Nothing in this Paragraph shall relieve a party of liability
to the other for failure to carry insurance required by this Lease.
17. ABANDONMENT: Tenant shall not abandon the Premises at any time
during the Term. In the event of abandonment, the rights and remedies of Tenant
and Landlord shall be determined in accordance with the applicable California
statutes in effect at the time of abandonment.
18. FREE FROM LIENS: Tenant shall keep the Premises, the Building and
the Property free from any liens arising out of any work performed, materials
furnished, or obligations incurred by or for Tenant.
19. ADVERTISEMENTS AND SIGNS: Tenant shall not place or permit to be
placed in, upon, or about the Premises, the Building or the Property any signs,
advertisements or notices without obtaining Landlord's prior written consent or
without complying with applicable laws and will not conduct, or permit to be
conducted, any sale by auction on the Premises or otherwise on the Property.
Tenant shall remove any sign, advertisement or notice placed on the
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Premises by Tenant upon the expiration of the Term or sooner termination of this
Lease, and Tenant shall repair any damage or injury to the Premises, the
Building or the Property caused thereby, all at Tenant's expense. If any signs
are not removed, or necessary repairs not made, Landlord shall have the right to
remove the signs and repair any damage or injury to the Premises, the Building
or the Property at Tenant's sole cost and expense.
20. UTILITIES: Tenant shall pay for all water, gas, heat, light, power,
telephone service and all other materials and services supplied to the Premises.
If Tenant fails to pay for any of the foregoing when due, Landlord may pay the
same and add such amount to the Rent.
21. ENTRY BY LANDLORD: Tenant shall permit Landlord and its Agents to
enter into and upon the Premises at all reasonable times, upon reasonable notice
(except in the case of an emergency, for which no notice shall be required), and
subject to Tenant's reasonable security arrangements, for the purpose of
inspecting the same or showing the Premises to prospective purchasers, lenders
or tenants or to alter, improve, maintain and repair the Premises as required or
permitted of Landlord under the terms hereof, without any rebate of Rent and
without any liability to Tenant for any loss of occupation or quiet enjoyment of
the Premises thereby occasioned (except for actual damages resulting from the
negligence or willful misconduct of Landlord or its agents); and Tenant shall
permit Landlord to post notices of non-responsibility and ordinary "for sale" or
"for lease" signs, provided that Landlord may post such "for lease" signs and
exhibit the Premises to prospective tenants only during the six (6) months prior
to termination of this Lease. No such entry shall be construed to be a forcible
or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant
from the Premises.
22. DESTRUCTION AND DAMAGE:
(a) If the Premises are damaged by fire or other perils covered
by extended coverage insurance, Landlord shall, at Landlord's option:
(1) In the event of total destruction (which shall mean
destruction or damage in excess of twenty-five percent (25%) of the full
insurable value thereof) of the Premises, elect either to commence promptly to
repair and restore the Premises and prosecute the same diligently to completion,
in which event this Lease shall remain in full force and effect; or not to
repair or restore the Premises, in which event this Lease shall terminate.
Landlord shall give Tenant written notice of its intention within sixty (60)
days after the occurrence of such destruction. If Landlord elects not to restore
the Premises, this Lease shall be deemed to have terminated as of the date of
such total destruction.
(2) In the event of a partial destruction (which shall
mean destruction or damage to an extent not exceeding twenty-five percent (25%)
of the full insurable value thereof) of the Premises for which Landlord will
receive insurance proceeds sufficient to cover the cost to repair and restore
such partial destruction and, if the damage thereto is such that the Premises
may be substantially repaired or restored to its condition existing immediately
prior to such damage or destruction within one hundred eighty (180) days from
the date of such destruction, Landlord shall commence and proceed diligently
with the work of repair and restoration, in which event the Lease shall continue
in full force and effect. If such repair and restoration
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requires longer than one hundred eighty (180) days or if the insurance proceeds
therefor (plus any amounts Tenant may elect or is obligated to contribute) are
not sufficient to cover the cost of such repair and restoration, Landlord may
elect either to so repair and restore, in which event the Lease shall continue
in full force and effect, or not to repair or restore, in which event the Lease
shall terminate. In either case, Landlord shall give written notice to Tenant of
its intention within sixty (60) days after the destruction occurs. If Landlord
elects not to restore the Premises, this Lease shall be deemed to have
terminated as of the date of such partial destruction.
(3) Notwithstanding anything to the contrary contained in
this Paragraph, in the event of damage to the Premises occurring during the last
twelve (12) months of the Term, Landlord may elect to terminate this Lease by
written notice of such election given to Tenant within thirty (30) days after
the damage occurs.
(b) If the Premises are damaged by any peril not covered by
extended coverage insurance, and the cost to repair such damage exceeds any
amount Tenant may agree to contribute, Landlord may elect either to commence
promptly to repair and restore the Premises and prosecute the same diligently to
completion, in which event this Lease shall remain in full force and effect; or
not to repair or restore the Premises, in which event this Lease shall
terminate. Landlord shall give Tenant written notice of its intention within
sixty (60) days after the occurrence of such damage. If Landlord elects not to
restore the Premises, this Lease shall be deemed to have terminated as of the
date on which Tenant surrenders possession of the Premises to Landlord, except
that if the damage to the Premises materially impairs Tenant's ability to
continue its business operations in the Premises, then this Lease shall be
deemed to have terminated as of the date such damage occurred.
(c) In the event of repair and restoration as herein provided,
the monthly installments of Base Rent shall be abated proportionately in the
ratio which Tenant's use of the Premises is impaired during the period of such
repair or restoration, to the extent of rental abatement insurance proceeds
received by Landlord. Tenant shall not be entitled to any compensation or
damages for loss of use of the whole or any part of the Premises and/or any
inconvenience or annoyance occasioned by such damage, repair or restoration.
(d) If Landlord is obligated to or elects to repair or restore as
herein provided, Landlord shall repair or restore only those portions of the
Premises which were originally provided at Landlord's expense, substantially to
their condition existing immediately prior to the occurrence of the damage or
destruction; and Tenant shall promptly repair and restore, at Tenant's expense,
Tenant's fixtures, improvements, alterations and additions in and to the
Premises which were not provided at Landlord's expense.
(e) Tenant hereby waives the provisions of California Civil Code
Section 1932(2) and Section 1933(4) which permit termination of a lease upon
destruction of the leased premises, and the provisions of any similar law now or
hereinafter in effect, and the provisions of this Paragraph 22 shall govern
exclusively in case of such destruction.
23. CONDEMNATION: If twenty-five percent (25%) or more of the Premises
or the parking area for the Premises is taken for any public or quasi-public
purpose by any lawful
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governmental power or authority, by exercise of the right of appropriation,
inverse condemnation, condemnation or eminent domain, or sold to prevent such
taking (each such event being referred to as a "Condemnation"), Landlord may, at
its option, terminate this Lease as of the date title vests in the condemning
party. If the Premises after any Condemnation and any repairs by Landlord would
be untenantable for the conduct of Tenant's business operations, Tenant shall
have the right to terminate this Lease as of the date title vests in the
condemning party. If either party elects to terminate this Lease as provided
herein, such election shall be made by written notice to the other party given
within thirty (30) days after the nature and extent of such Condemnation have
been finally determined. Tenant shall not because of such taking assert any
claim against Landlord. Landlord shall be entitled to receive the proceeds of
all Condemnation awards, and Tenant hereby assigns to Landlord all of its
interest in such awards. If less than twenty-five percent (25%) of the Premises
or the parking area is taken, Landlord at its option may terminate this Lease.
If neither Landlord nor Tenant elects to terminate this Lease to the extent
permitted above, Landlord shall promptly proceed to restore the Premises to the
extent of any Condemnation award received by Landlord, to substantially the same
condition as existed prior to such Condemnation, allowing for the reasonable
effects of such Condemnation, and a proportionate abatement shall be made to the
Base Rent corresponding to the time during which, and to the portion of the
floor area of the Premises (adjusted for any increase thereto resulting from any
reconstruction) of which, Tenant is deprived on account of such Condemnation and
restoration. The provisions of California Code of Civil Procedure Section
1265.130, which allows either party to petition the Superior Court to terminate
the Lease in the event of a partial taking of the Premises, and any other
applicable law now or hereafter enacted, are hereby waived by Landlord and
Tenant.
24. ASSIGNMENT AND SUBLETTING:
(a) Tenant shall not voluntarily or by operation of law, (1)
mortgage, pledge, hypothecate or encumber this Lease or any interest herein, (2)
assign or transfer this Lease or any interest herein, sublease the Premises or
any part thereof, or any right or privilege appurtenant thereto, or allow any
other person (the employees, agents and invitees of Tenant excepted) to occupy
or use the Premises, or any portion thereof, without first obtaining the written
consent of Landlord, which consent shall not be withheld unreasonably. When
Tenant requests Landlord's consent to such assignment or subletting, it shall
notify Landlord in writing of the name and address of the proposed assignee or
subtenant and the nature and character of the business of the proposed assignee
or subtenant and shall provide current financial statements for the proposed
assignee or subtenant prepared in accordance with generally accepted accounting
principles. Tenant shall also provide Landlord with a copy of the proposed
sublease or assignment agreement, including all material terms and conditions
thereof. Landlord shall have the option, to be exercised within thirty (30) days
of receipt of the foregoing, to (1) cancel this Lease as of the commencement
date stated in the proposed sublease or assignment, (2) acquire from Tenant the
interest, or any portion thereof, in this Lease and/or the Premises that Tenant
proposes to assign or sublease, on the same terms and conditions as stated in
the proposed sublet or assignment agreement, (3) consent to the proposed
assignment or sublease, or (4) refuse its consent to the proposed assignment or
sublease, providing that such consent shall not be unreasonably withheld.
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(b) Without otherwise limiting the criteria upon which Landlord
may withhold its consent, Landlord may take into account the reputation and
credit worthiness of the proposed assignee or subtenant, the character of the
business proposed to be conducted in the Premises or portion thereof sought to
be subleased, and the potential impact of the proposed assignment or sublease on
the economic value of the Premises. In any event, Landlord may withhold its
consent to any assignment or sublease, if (1) the actual use proposed to be
conducted in the Premises or portion thereof conflicts with the provisions of
Paragraph 8(a) or (b) above, or (2) the proposed assignment or sublease requires
alterations, improvements or additions to the Premises or portions thereof.
(c) If Landlord approves an assignment or subletting as herein
provided, Tenant shall pay to Landlord, as Additional Rent, the difference, if
any, between (1) the Base Rent plus Additional Rent allocable to that part of
the Premises affected by such assignment or sublease pursuant to the provisions
of this Lease, and (2) the rent and any additional rent payable by the assignee
or sublessee to Tenant, after deducting the costs incurred by Tenant in
connection with any such assignment or sublease. The assignment or sublease
agreement, as the case may be, after approval by Landlord, shall not be amended
without Landlord's prior written consent, and shall contain a provision
directing the assignee or subtenant to pay the rent and other sums due
thereunder directly to Landlord upon receiving written notice from Landlord that
Tenant is in default under this Lease with respect to the payment of Rent.
Landlord's collection of such rent and other sums shall not constitute an
acceptance by Landlord of attornment by such assignee or subtenant. A consent to
one assignment, subletting, occupation or use shall not be deemed to be a
consent to any other or subsequent assignment, subletting, occupation or use,
and consent to any assignment or subletting shall in no way relieve Tenant of
any liability under this Lease. Any assignment or subletting without Landlord's
consent shall be void, and shall, at the option of Landlord, constitute a
Default under this Lease.
(d) Tenant shall pay Landlord's reasonable fees (including,
without limitation, the fees of Landlord's counsel), incurred in connection with
Landlord's review and processing of documents regarding any proposed assignment
or sublease, which fees shall not exceed the sum of One Thousand Dollars
($1,000.00).
(e) Tenant acknowledges and agrees that the restrictions,
conditions and limitations imposed by this Paragraph 24 on Tenant's ability to
assign or transfer this Lease or any interest herein, to sublet the Premises or
any part thereof, to transfer or assign any right or privilege appurtenant to
the Premises, or to allow any other person to occupy or use the Premises or any
portion thereof, are, for the purposes of California Civil Code Section 1951.4,
as amended from time to time, and for all other purposes, reasonable at the time
that the Lease was entered into, and shall be deemed to be reasonable at the
time that Tenant seeks to assign or transfer this Lease or any interest herein,
to sublet the Premises or any part thereof, to transfer or assign any right or
privilege appurtenant to the Premises, or to allow any other person to occupy or
use the Premises or any portion thereof.
25. TENANT'S DEFAULT: The occurrence of any one of the following events
shall constitute an event of default on the part of Tenant ("Default"):
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(a) The abandonment of the Premises by Tenant;
(b) Failure to pay any installment of Rent or any other monies
due and payable hereunder, said failure continuing for a period of three (3)
days after the same is due;
(c) A general assignment by Tenant for the benefit of creditors;
(d) The filing of a voluntary petition in bankruptcy by Tenant,
the filing of a voluntary petition for an arrangement, the filing of a petition,
voluntary or involuntary, for reorganization, or the filing of an involuntary
petition by Tenant's creditors, said involuntary petition remaining undischarged
for a period of sixty (60) days;
(e) Receivership, attachment, or other judicial seizure of
substantially all of Tenant's assets on the Premises, such attachment or other
seizure remaining undismissed or undischarged for a period of sixty (60) days
after the levy thereof;
(f) Failure of Tenant to execute and deliver to Landlord any
estoppel certificate, subordination agreement, or lease amendment within the
time periods and in the manner required by Paragraph 30 or 31 or 42;
(g) An assignment or sublease, or attempted assignment or
sublease, of this Lease or the Premises by Tenant contrary to the provision of
Paragraph 24, unless such assignment or sublease is expressly conditioned upon
Tenant having received Landlord's consent thereto;
(h) Failure of Tenant to restore the Security Deposit to the
amount and within the time period provided in Paragraph 6 above;
(i) Failure in the performance of any of Tenant's covenants,
agreements or obligations hereunder (except those failures specified as events
of Default in other Paragraphs of this Paragraph 25, which shall be governed by
such other Paragraphs), which failure continues for ten (10) days after written
notice thereof from Landlord to Tenant provided that, if Tenant has exercised
reasonable diligence to cure such failure and such failure cannot be cured
within such ten (10) day period despite reasonable diligence, Tenant shall not
be in default under this subparagraph unless Tenant fails thereafter diligently
and continuously to prosecute the cure to completion; and
(j) Chronic delinquency by Tenant in the payment of Rent, or any
other periodic payments required to be paid by Tenant under this Lease. "Chronic
delinquency" shall mean failure by Tenant to pay Rent, or any other payments
required to be paid by Tenant under this Lease within three (3) days after
written notice thereof for any three (3) months (consecutive or nonconsecutive)
during any twelve (12) month period. In the event of a Chronic Delinquency, in
addition to Landlord's other remedies for Default provided in this Lease, at
Landlord's option, Landlord shall have the right to require that Rent be paid by
Tenant quarterly, in advance.
Tenant agrees that any notice given by Landlord pursuant to
Paragraph 25(i) or (j) above shall satisfy the requirements for notice under
California Code of Civil Procedure
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Section 1161, and Landlord shall not be required to give any additional notice
in order to be entitled to commence an unlawful detainer proceeding.
26. LANDLORD'S REMEDIES:
(a) Termination. In the event of any Default by Tenant, then in
addition to any other remedies available to Landlord at law or in equity and
under this Lease, Landlord shall have the immediate option to terminate this
Lease and all rights of Tenant hereunder by giving written notice of such
intention to terminate. In the event that Landlord shall elect to so terminate
this Lease then Landlord may recover from Tenant:
(1) the worth at the time of award of any unpaid Rent and
any other sums due and payable which have been earned at the time of such
termination; plus
(2) the worth at the time of award of the amount by which
the unpaid Rent and any other sums due and payable which would have been earned
after termination until the time of award exceeds the amount of such rental loss
Tenant proves could have been reasonably avoided; plus
(3) the worth at the time of award of the amount by which
the unpaid Rent and any other sums due and payable for the balance of the term
of this Lease after the time of award exceeds the amount of such rental loss
that Tenant proves could be reasonably avoided; plus
(4) any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course would be likely to
result therefrom, including, without limitation, any costs or expenses incurred
by Landlord (i) in retaking possession of the Premises; (ii) in maintaining,
repairing, preserving, restoring, replacing, cleaning, altering or
rehabilitating the Premises or any portion thereof, including such acts for
reletting to a new tenant or tenants; (iii) for leasing commissions; or (iv) for
any other costs necessary or appropriate to relet the Premises; plus
(5) such reasonable attorneys' fees incurred by Landlord
as a result of a Default, and costs in the event suit is filed by Landlord to
enforce such remedy; and plus
(6) at Landlord's election, such other amounts in addition
to or in lieu of the foregoing as may be permitted from time to time by
applicable law.
As used in subparagraphs (1) and (2) above, the "worth at the time of award" is
computed by allowing interest at an annual rate equal to twelve percent (12%)
per annum or the maximum rate permitted by law, whichever is less. As used in
subparagraph (3) above, the "worth at the time of award" is computed by
discounting such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award, plus one percent (1%). Tenant waives redemption
or relief from forfeiture under California Code of Civil Procedure Sections 1174
and 1179, or under any other present or future law, in the event Tenant is
evicted or Landlord takes possession of the Premises by reason of any Default of
Tenant hereunder.
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(b) Continuation of Lease. In the event of any Default by Tenant,
then in addition to any other remedies available to Landlord at law or in equity
and under this Lease, Landlord shall have the remedy described in California
Civil Code Section 1951.4 (Landlord may continue this Lease in effect after
Tenant's Default and abandonment and recover Rent as it becomes due, provided
Tenant has the right to sublet or assign, subject only to reasonable
limitations).
(c) Re-entry. In the event of any Default by Tenant, Landlord
shall also have the right, with or without terminating this Lease, in compliance
with applicable law, to re-enter the Premises and remove all persons and
property from the Premises; such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Tenant.
(d) Reletting. In the event of the abandonment of the Premises by
Tenant or in the event that Landlord shall elect to re-enter as provided in
Paragraph 26(c) or shall take possession of the Premises pursuant to legal
proceeding or pursuant to any notice provided by law, then if Landlord does not
elect to terminate this Lease as provided in Xxxxxxxxx 00(x), Xxxxxxxx may from
time to time, without terminating this Lease, relet the Premises or any part
thereof for such term or terms and at such rental or rentals and upon such other
terms and conditions as Landlord in its sole discretion may deem advisable with
the right to make alterations and repairs to the Premises. In the event that
Landlord shall elect to so relet, then rentals received by Landlord from such
reletting shall be applied in the following order: (1) to reasonable attorneys'
fees incurred by Landlord as a result of a Default and costs in the event suit
is filed by Landlord to enforce such remedies; (2) to the payment of any
indebtedness other than Rent due hereunder from Tenant to Landlord; (3) to the
payment of any costs of such reletting; (4) to the payment of the costs of any
alterations and repairs to the Premises; (5) to the payment of Rent due and
unpaid hereunder; and (6) the residue, if any, shall be held by Landlord and
applied in payment of future Rent and other sums payable by Tenant hereunder as
the same may become due and payable hereunder. Should that portion of such
rentals received from such reletting during any month, which is applied to the
payment of Rent hereunder, be less than the Rent payable during the month by
Tenant hereunder, then Tenant shall pay such deficiency to Landlord. Such
deficiency shall be calculated and paid monthly. Tenant shall also pay to
Landlord, as soon as ascertained, any costs and expenses incurred by Landlord in
such reletting or in making such alterations and repairs not covered by the
rentals received from such reletting.
(e) Termination. No re-entry or taking of possession of the
Premises by Landlord pursuant to this Paragraph 26 shall be construed as an
election to terminate this Lease unless a written notice of such intention is
given to Tenant or unless the termination thereof is decreed by a court of
competent jurisdiction. Notwithstanding any reletting without termination by
Landlord because of any Default by Tenant, Landlord may at any time after such
reletting elect to terminate this Lease for any such Default.
(f) Cumulative Remedies. The remedies herein provided are not
exclusive and Landlord shall have any and all other remedies provided herein or
by law or in equity.
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(g) No Surrender. No act or conduct of Landlord, whether
consisting of the acceptance of the keys to the Premises, or otherwise, shall be
deemed to be or constitute an acceptance of the surrender of the Premises by
Tenant prior to the expiration of the Term, and such acceptance by Landlord of
surrender by Tenant shall only flow from and must be evidenced by a written
acknowledgment of acceptance of surrender signed by Landlord. The surrender of
this Lease by Tenant, voluntarily or otherwise, shall not work a merger unless
Landlord elects in writing that such merger take place, but shall operate as an
assignment to Landlord of any and all existing subleases, or Landlord may, at
its option, elect in writing to treat such surrender as a merger terminating
Tenant's estate under this Lease, and thereupon Landlord may terminate any or
all such subleases by notifying the sublessee of its election so to do within
five (5) days after such surrender.
27. ATTORNEYS' FEES: If either party hereto fails to perform any of its
obligations under this Lease or if any dispute arises between the parties hereto
concerning the meaning or interpretation of any provision of this Lease, then
the defaulting party or the party not prevailing in such dispute, as the case
may be, shall pay any and all costs and expenses incurred by the other party on
account of such default and/or in enforcing or establishing its rights
hereunder, including, without limitation, court costs and reasonable attorneys'
fees and disbursements. Any such attorneys' fees and other expenses incurred by
either party in enforcing a judgment in its favor under this Lease shall be
recoverable separately from and in addition to any other amount included in such
judgment, and such attorneys' fees obligation is intended to be severable from
the other provisions of this Lease and to survive and not be merged into any
such judgment.
28. TAXES: Tenant shall be liable for and shall pay, prior to
delinquency, all taxes levied against personal property and trade or business
fixtures of Tenant. If any alteration, addition or improvement installed by
Tenant pursuant to Paragraph 11, or any personal property, trade fixture or
other property of Tenant, is assessed and taxed with the Property, Tenant shall
pay such taxes to Landlord within ten (10) days after delivery to Tenant of a
statement therefor.
29. EFFECT OF CONVEYANCE: The term "Landlord" as used in this Lease,
means only the owner for the time being of the Property containing the Premises,
so that, in the event of any sale of the Property, the Building or the Premises,
Landlord shall be and hereby is entirely freed and relieved of all covenants and
obligations of Landlord hereunder accruing from and after the transfer, and it
shall be deemed and construed, without further agreement between the parties and
the purchaser at any such sale, that the purchaser of the Property, the Building
or the Premises has assumed and agreed to carry out any and all covenants and
obligations of Landlord hereunder.
30. TENANT'S ESTOPPEL CERTIFICATE: From time to time, upon written
request of Landlord, Tenant shall execute, acknowledge and deliver to Landlord
or its designee, a written certificate stating (a) the date this Lease was
executed, the Commencement Date of the Term and the date the Term expires; (b)
the date Tenant entered into occupancy of the Premises; (c) the amount of Rent
and the date to which such Rent has been paid; (d) that this Lease is in full
force and effect and has not been assigned, modified, supplemented or amended in
any way (or, if assigned, modified, supplemented or amended, specifying the date
and terms of any
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agreement so affecting this Lease); (e) that this Lease represents the entire
agreement between the parties with respect to Tenant's right to use and occupy
the Premises (or specifying such other agreements, if any); (f) that all
obligations under this Lease to be performed by Landlord as of the date of such
certificate have been satisfied (or specifying those as to which Tenant claims
that Landlord has yet to perform); (g) that all required contributions by
Landlord to Tenant on account of Tenant's improvements have been received (or
stating exceptions thereto); (h) that on such date there exist no defenses or
offsets that Tenant has against the enforcement of this Lease by Landlord (or
stating exceptions thereto); (i) that no Rent or other sum payable by Tenant
hereunder has been paid more than one (1) month in advance (or stating
exceptions thereto); (j) that security has been deposited with Landlord, stating
the amount thereof; and (k) any other matters evidencing the status of this
Lease that may be required either by a lender making a loan to Landlord to be
secured by a deed of trust covering the Building or by a purchaser of the
Building. Any such certificate delivered pursuant to this Paragraph 30 may be
relied upon by a prospective purchaser of Landlord's interest or a mortgagee of
Landlord's interest or assignee of any mortgage upon Landlord's interest in the
Premises. If Tenant shall fail to provide such certificate within ten (10) days
of receipt by Tenant of a written request by Landlord as herein provided, such
failure shall, at Landlord's election, constitute a Default under this Lease,
and Tenant shall be deemed to have given such certificate as above provided
without modification and shall be deemed to have admitted the accuracy of any
information supplied by Landlord to a prospective purchaser or mortgagee.
31. SUBORDINATION: Landlord shall have the right to cause this Lease to
be and remain subject and subordinate to any and all mortgages, deeds of trust
and ground leases, if any ("Encumbrances") that are now or may hereafter be
executed covering the Premises, or any renewals, modifications, consolidations,
replacements or extensions thereof, for the full amount of all advances made or
to be made thereunder and without regard to the time or character of such
advances, together with interest thereon and subject to all the terms and
provisions thereof; provided only, that in the event of termination of any such
ground lease or upon the foreclosure of any such mortgage or deed of trust, so
long as Tenant is not in default, the holder thereof ("Holder") shall agree to
recognize Tenant's rights under this Lease as long as Tenant shall pay the Rent
and observe and perform all the provisions of this Lease to be observed and
performed by Tenant. Within ten (10) days after Landlord's written request,
Tenant shall execute, acknowledge and deliver any and all reasonable documents
required by Landlord or the Holder to effectuate such subordination. If Tenant
fails to do so, such failure shall constitute a Default by Tenant under this
Lease. Notwithstanding anything to the contrary set forth in this Paragraph 31,
Tenant hereby attorns and agrees to attorn to any person or entity purchasing or
otherwise acquiring the Premises at any sale or other proceeding or pursuant to
the exercise of any other rights, powers or remedies under such Encumbrance.
32. ENVIRONMENTAL COVENANTS:
(a) As used in this Lease, the term "Hazardous Materials" shall
mean and include any substance that is or contains (a) any "hazardous substance"
as now or hereafter defined in Section 101(14) of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended
("CERCLA") (42 U.S.C. Section 9601 et seq.) or any regulations promulgated under
CERCLA; (b) any "hazardous waste" as now or hereafter defined in the
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Resource Conservation and Recovery Act, as amended ("RCRA") (42 U.S.C. Section
6901 et seq.) or any regulations promulgated under RCRA; (c) any substance now
or hereafter regulated by the Toxic Substances Control Act, as amended ("TSCA")
(15 U.S.C. Section 2601 et seq.) or any regulations promulgated under TSCA; (d)
petroleum, petroleum by-products, gasoline, diesel fuel, or other petroleum
hydrocarbons; (e) asbestos and asbestos-containing material, in any form,
whether friable or non-friable; (f) polychlorinated biphenyls; (g) lead and
lead-containing materials; or (h) any additional substance, material or waste
(A) the presence of which on or about the Premises (i) requires reporting,
investigation or remediation under any Environmental Laws (as hereinafter
defined), (ii) causes or threatens to cause a nuisance on the Premises or any
adjacent property or poses or threatens to pose a hazard to the health or safety
of persons on the Premises or any adjacent property, or (iii) which, if it
emanated or migrated from the Premises, could constitute a trespass, or (B)
which is now or is hereafter classified or considered to be hazardous or toxic
under any Environmental Laws.
(b) As used in this Lease, the term "Environmental Laws" shall
mean and include (a) CERCLA, RCRA and TSCA; and (b) any other federal, state or
local laws, ordinances, statutes, codes, rules, regulations, orders or decrees
now or hereinafter in effect relating to (i) pollution, (ii) the protection or
regulation of human health, natural resources or the environment, (iii) the
treatment, storage or disposal of Hazardous Materials, or (iv) the emission,
discharge, release or threatened release of Hazardous Materials into the
environment.
(c) Tenant agrees that during its use and occupancy of the
Premises it will (a) not (i) permit Hazardous Materials to be present on or
about the Premises except in a manner and quantity necessary for the ordinary
performance of Tenant's business or (ii) release, discharge or dispose of any
Hazardous Materials on, in, at, under, or emanating from, the Premises or the
Property; (b) comply with all Environmental Laws relating to the Premises and
the use of Hazardous Materials on or about the Premises and not engage in or
permit others to engage in any activity at the Premises in violation of any
Environmental Laws; and (c) immediately notify Landlord of (i) any inquiry,
test, investigation or enforcement proceeding by any governmental agency or
authority against Tenant, Landlord or the Premises relating to any Hazardous
Materials or under any Environmental Laws or (ii) the occurrence of any event or
existence of any condition that would cause a breach of any of the covenants set
forth in this Section 32.
(d) If Tenant's use of Hazardous Materials on or about the
Premises results in a release, discharge or disposal of Hazardous Materials on,
in, at, under, or emanating from, the Premises or the Property, Tenant agrees to
investigate, clean up, remove or remediate such Hazardous Materials in full
compliance with (a) the requirements of (i) all Environmental Laws and (ii) any
governmental agency or authority responsible for the enforcement of any
Environmental Laws; and (b) any additional requirements of Landlord that are
reasonably necessary to protect the value of the Premises or the Property.
(e) Upon reasonable notice to Tenant, Landlord may inspect the
Premises for the purpose of determining whether there exists on the Premises any
Hazardous Material or other condition or activity that is in violation of the
requirements of this Lease or of any Environmental Laws. Tenant will supply to
Landlord such historical and operational
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information regarding the Premises as may be reasonably requested to facilitate
any such inspection and will make available for meetings appropriate personnel
having knowledge of such matters. Tenant agrees to give Landlord at least sixty
(60) days' prior notice of its intention to vacate the Premises so that Landlord
will have an opportunity to perform such an inspection prior to such vacation.
The right granted to Landlord herein to perform inspections shall not create a
duty on Landlord's part to inspect the Premises, or liability on the part of
Landlord for Tenant's use, storage or disposal of Hazardous Materials, it being
understood that Tenant shall be solely responsible for all liability in
connection therewith.
(f) Landlord shall have the right, but not the obligation, prior
or subsequent to an event of default, without in any way limiting Landlord's
other rights and remedies under this Lease, to enter upon the Premises, or to
take such other actions as it deems necessary or advisable, to investigate,
clean up, remove or remediate any Hazardous Materials or contamination by
Hazardous Materials present on, in, at, under, or emanating from, the Premises
or the Property in violation of Tenant's obligations under this Lease or under
any Environmental Laws. Notwithstanding any other provision of this Lease,
Landlord shall also have the right, at its election, in its own name or as
Tenant's agent, to negotiate, defend, approve and appeal, at Tenant's expense,
any action taken or order issued by any governmental agency or authority with
regard to any such Hazardous Materials or contamination by Hazardous Materials.
All costs and expenses paid or incurred by Landlord in the exercise of the
rights set forth in this Subsection 32(f), shall be payable by Tenant upon
demand.
(g) Tenant shall surrender the Premises to Landlord upon the
expiration or earlier termination of this Lease free of debris, waste or
Hazardous Materials placed on or about the Premises by Tenant or its agents,
employees, contractors or invitees, and in a condition which complies with all
Environmental Laws.
(h) Tenant agrees to indemnify and hold harmless Landlord from
and against any and all claims, losses (including, without limitation, loss in
value of the Premises or the Property, liabilities and expenses (including
attorney's fees) sustained by Landlord attributable to (i) any Hazardous
Materials placed on or about the Premises by Tenant or its Agents or (ii)
Tenant's breach of any provision of this Section 32. Notwithstanding anything
herein to the contrary, Tenant shall not be required to indemnify Landlord
against any costs or liabilities attributable to Hazardous Materials placed on
or about the Premises prior to the Commencement Date by third parties not
related to Tenant or its Agents provided that neither Tenant nor its Agents have
contributed to or exacerbated the presence of such Hazardous Materials.
(i) The provisions of this Section 32 shall survive the
expiration or earlier termination of this Lease.
33. NOTICES: All notices and demands which may or are to be required or
permitted to be given to either party by the other hereunder shall be in writing
and shall be sent by United States mail, postage prepaid, certified, or by
personal delivery or overnight courier, addressed to the addressee at the
address for such addressee as specified in the Basic Lease Information, or to
such other place as such party may from time to time designate in a notice to
the other party given as provided herein, or by telex or telecopy at the number
therefor
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designated by the addressee in a written notice given as provided herein. Notice
shall be deemed given upon the earlier of actual receipt or the third day
following deposit in the United States mail in the manner described above.
34. WAIVER: The waiver of any breach of any term, covenant or condition
of this Lease shall not be deemed to be a waiver of such term, covenant or
condition or any subsequent breach of the same or any other term, covenant or
condition herein contained. The subsequent acceptance of Rent by Landlord shall
not be deemed to be a waiver of any preceding breach by Tenant, other than the
failure of Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
Rent. No delay or omission in the exercise of any right or remedy of Landlord on
any Default by Tenant shall impair such a right or remedy or be construed as a
waiver. Any waiver by Landlord of any Default must be in writing and shall not
be a waiver of any other Default concerning the same or any other provisions of
this Lease.
35. HOLDING OVER: Any holding over after the expiration of the Term,
without the express written consent of Landlord, shall constitute a Default and,
without limiting Landlord's remedies provided in this Lease, such holding over
shall be construed to be a tenancy at sufferance, at a rental rate of one
hundred fifty percent (150%) of the Base Rent last due in this Lease, plus
Additional Rent, and shall otherwise be on the terms and conditions herein
specified, so far as applicable.
36. SUCCESSORS AND ASSIGNS: The terms, covenants and conditions of this
Lease shall, subject to the provisions as to assignment, apply to and bind the
heirs, successors, executors, administrators and assigns of all of the parties
hereto. If Tenant shall consist of more than one entity or person, the
obligations of Tenant under this Lease shall be joint and several.
37. TIME: Time is of the essence of this Lease and each and every term,
condition and provision herein.
38. BROKERS: Landlord and Tenant each represents and warrants to the
other that neither it nor its officers or agents nor anyone acting on its behalf
has dealt with any real estate broker except the Broker(s) specified in the
Basic Lease Information in the negotiating or making of this Lease, and each
party agrees to indemnify and hold harmless the other from any claim or claims,
and costs and expenses, including attorneys' fees, incurred by the indemnified
party in conjunction with any such claim or claims of any other broker or
brokers to a commission in connection with this Lease as a result of the actions
of the indemnifying party.
39. LIMITATION OF LIABILITY: Tenant agrees that, in the event of any
default or breach by Landlord with respect to any of the terms of the Lease to
be observed and performed by Landlord (a) Tenant shall look solely to the estate
and property of Landlord or any successor in interest in the Property and the
Premises, for the satisfaction of Tenant's remedies for the collection of a
judgment (or other judicial process) requiring the payment of money by Landlord;
(b) no other property or assets of Landlord, its partners, shareholder,
officers, directors or any successor in interest shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies; (c) no personal liability shall at any time be asserted or
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enforceable against Landlord's partners or successors in interest (except to the
extent permitted in (a) above), or against Landlord's shareholders, officers or
directors, or their respective partners, shareholders, officers, directors or
successors in interest; and (d) no judgment will be taken against any partner,
shareholder, officer or director of Landlord. The provisions of this section
shall apply only to the Landlord and the parties herein described, and shall not
be for the benefit of any insurer nor any other third party.
40. FINANCIAL STATEMENTS: Within thirty (30) days after Landlord's
request, Tenant shall deliver to Landlord the then current financial statements
of Tenant (including interim periods following the end of the last fiscal year
for which annual statements are available), including a balance sheet and profit
and loss statement for the most recent prior year, all prepared in accordance
with generally accepted accounting principles consistently applied.
41. RULES AND REGULATIONS: Tenant agrees to comply with such reasonable
rules and regulations as Landlord may adopt from time to time for the orderly
and proper operating of the Building and parking and other common areas. Such
rules may include but shall not be limited to the following: (a) restriction of
employee parking to a limited, designated area or areas; and (b) regulation of
the removal, storage and disposal of Tenant's refuse and other rubbish at the
sole cost and expense of Tenant. The rules and regulations shall be binding upon
Tenant upon delivery of a copy of them to Tenant. Landlord shall not be
responsible to Tenant for the failure of any other person to observe and abide
by any of said rules and regulations.
42. MORTGAGEE PROTECTION:
(a) Modifications for Lender. If, in connection with obtaining
financing for the Building or any portion thereof, Landlord's lender shall
request reasonable modifications to this Lease as a condition to such financing,
Tenant shall not unreasonably withhold, delay or defer its consent to such
modifications, provided such modifications do not materially adversely affect
Tenant's rights or increase Tenant's obligations under this Lease.
(b) Rights to Cure. Tenant agrees to give to any trust deed or
mortgage holder ("Holder"), by registered mail, at the same time as it is given
to Landlord, a copy of any notice of default given to Landlord, provided that
prior to such notice Tenant has been notified, in writing, (by way of notice of
assignment of rents and leases, or otherwise) of the address of such Holder.
Tenant further agrees that if Landlord shall have failed to cure such default
within the time provided for in this Lease, then the Holder shall have an
additional twenty (20) days after expiration of such period, or after receipt of
such notice from Tenant (if such notice to the Holder is required by this
Paragraph 42(b)), whichever shall last occur within which to cure such default
or if such default cannot be cured within that time, then such additional time
as may be necessary if within such twenty (20) days, any Holder has commenced
and is diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings, if
necessary to effect such cure), in which event this Lease shall not be
terminated.
43. ENTIRE AGREEMENT: This Lease, including the Exhibits and any Addenda
attached hereto, which are hereby incorporated herein by this reference,
contains the entire
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agreement of the parties hereto, and no representations, inducements, promises
or agreements, oral or otherwise, between the parties, not embodied herein or
therein, shall be of any force and effect.
44. INTEREST: Any installment of Rent and any other sum due from Tenant
under this Lease which is not received by Landlord within ten (10) days from
when the same is due shall bear interest from such tenth (10th) day until paid
at an annual rate equal to the maximum rate of interest permitted by law.
Payment of such interest shall not excuse or cure any Default by Tenant. In
addition, Tenant shall pay all costs and attorneys' fees incurred by Landlord in
collection of such amounts.
45. CONSTRUCTION: This Lease shall be construed and interpreted in
accordance with the laws of the State of California. The parties acknowledge and
agree that no rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall be employed in the interpretation of
this Lease, including the Exhibits and any Addenda attached hereto. All captions
in this Lease are for reference only and shall not be used in the interpretation
of this Lease. Whenever required by the context of this Lease, the singular
shall include the plural, the masculine shall include the feminine, and vice
versa. If any provision of this Lease shall be determined to be illegal or
unenforceable, such determination shall not affect any other provision of this
Lease and all such other provisions shall remain in full force and effect.
46. RENEWAL OPTION: Tenant shall have one (1) option (the "Renewal
Option") to extend the Term for an additional period of either three (3) or five
(5) years, as selected by Tenant, beyond the Expiration Date (the "Renewal
Term"). The Renewal Option shall be effective only if Tenant is not in default
under this Lease, nor has any event occurred which with the giving of notice or
the passage of time, or both, would constitute a default hereunder, either at
the time of exercise of the Renewal Option or the time of commencement of the
Renewal Term. The Renewal Option must be exercised, if at all, by written notice
from Tenant to Landlord given not more than nine (9) months nor less than six
(6) months prior to the expiration of the initial Term, which notice shall
specify the desired length of the Renewal Term (i.e., three (3) or five (5)
years). Any such notice given by Tenant to Landlord shall be irrevocable. If
Tenant fails to exercise the Renewal Option in a timely manner as provided for
above, the Renewal Option shall be void. The Renewal Term shall be upon the same
terms and conditions as the initial Term, except that the annual Rent during the
Renewal Term shall be equal to the higher of (i) the prevailing market rate for
space comparable to the Premises in size, location, condition, quality and type
at the commencement of the Renewal Term, or (ii) the Rent payable hereunder
immediately prior to the expiration of the initial Term. As used herein, the
term "prevailing market rate" shall mean the base annual rental for such
comparable space, taking into account any additional rental and all other
payments and escalations payable hereunder and by tenants under leases of such
comparable space. If Tenant disputes Landlord's determination of the prevailing
market rate, Tenant shall so notify the Landlord within ten (10) days following
Landlord's notice to Tenant of the prevailing market rate and such dispute shall
be resolved as follows:
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(a) Within thirty (30) days following Tenant's notice to Landlord
of Tenant's dispute of Landlord's determination of the prevailing market rate,
Landlord and Tenant shall meet no less than two (2) times, at a mutually
agreeable time and place, to attempt to resolve any such disagreement.
(b) If within this thirty (30) day period Landlord and Tenant
cannot reach agreement as to the prevailing market rate, they shall each select
one appraiser to determine the prevailing market rate. Each such appraiser shall
arrive at a determination of the prevailing market rate and submit his
conclusions to Landlord and Tenant within thirty (30) days of the expiration of
the thirty (30) day consultation period described in paragraph (a) above.
(c) If only one appraisal is submitted within the requisite time
period, it shall be deemed to be the prevailing market rate. If both appraisals
are submitted within such time period, and if the two appraisals so submitted
differ by less than ten (10) percent of the higher of the two, the average of
the two shall be the prevailing market rate. If the two appraisals differ by
more than ten (10) percent of the higher of the two, then the two appraisers
shall immediately select a third appraiser who will within thirty (30) days of
his selection make a determination of the prevailing market rate and submit such
determination to Landlord and Tenant. This third appraisal will then be averaged
with the closer of the two previous appraisals and the result shall be the
prevailing market rate.
(d) All appraisers specified pursuant hereto shall be licensed
real estate brokers in the State of California with not less than five (5)
years' experience appraising commercial properties in the County of Santa Xxxxx.
Each party shall pay the cost of the appraiser selected by such party and
one-half (1/2) of the cost of the third appraiser plus one-half (1/2) of any
other costs incurred in connection with the appraisal.
47. REPRESENTATIONS AND WARRANTIES OF TENANT: Tenant hereby makes the
following representations and warranties, each of which is material and being
relied upon by Landlord, is true in all respects as of the date of this Lease,
and shall survive the expiration or termination of the Lease.
(a) If Tenant is an entity, Tenant is duly organized, validly
existing and in good standing under the laws of the state of its organization
and the persons executing this Lease on behalf of Tenant have the full right and
authority to execute this Lease on behalf of Tenant and to bind Tenant without
the consent or approval of any other person or entity. Tenant has full power,
capacity, authority and legal right to execute and deliver this Lease and to
perform all of its obligations hereunder. This Lease is a legal, valid and
binding obligation of Tenant, enforceable in accordance with its terms.
(b) Tenant has not (1) made a general assignment for the benefit
of creditors, (2) filed any voluntary petition in bankruptcy or suffered the
filing of an involuntary petition by any creditors, (3) suffered the appointment
of a receiver to take possession of all or substantially all of its assets, (4)
suffered the attachment or other judicial seizure of all or substantially all of
its assets, (5) admitted in writing its inability to pay its debts as they come
due, or (6) made an offer of settlement, extension or composition to its
creditors generally.
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48. LIMITATION OF TENANT'S LIABILITY: Notwithstanding anything in this
Lease to the contrary, Landlord shall not institute any legal action or
proceeding against the members of the Board of Directors of Tenant in connection
with the enforcement of Landlord's remedies hereunder.
Landlord and Tenant have executed and delivered this Lease as of the
Lease Date specified in the Basic Lease Information.
LANDLORD: TENANT:
AETNA LIFE INSURANCE COMPANY, PLX TECHNOLOGY, INC.,
a Connecticut corporation a California corporation
By: By:
--------------------------------- -----------------------------------
Print Print
Name: Name:
------------------------------ --------------------------------
Its: Its:
------------------------------ --------------------------------
By:
----------------------------------
Print
Name:
--------------------------------
Its:
---------------------------------
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LEASE AGREEMENT
BASIC LEASE INFORMATION
Lease Date: December __, 1995
Landlord: AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
Landlord's Address: c/o Aetna Realty Investors, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
Tenant: PLX TECHNOLOGY, INC.,
a California corporation
Tenant's Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Building: 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Premises: Premises containing approximately twenty thousand
(20,000) rentable square feet in the Building
Months of Term: Sixty (60) months
Monthly Base Rent: Months Sq. Ft. Monthly Rate Monthly Rent
------ ------- ------------ ------------
1-12 20,000 $0.78 $15,600.00
13-24 20,000 $0.80 $16,000.00
25-36 20,000 $0.82 $16,400.00
37-48 20,000 $0.84 $16,800.00
49-60 20,000 $0.86 $17,200.00
Prepaid Rent: Fifteen Thousand Six Hundred Dollars ($15,600.00)
Month To Which
Pre-paid Rent First (1st) month of the Term
Applied:
Security Deposit: Seventeen Thousand Two Hundred Dollars ($17,200.00)
Permitted Use: General office use and research and development and
testing of semiconductors
Brokers: Cornish & Xxxxx Commercial
BT Commercial
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Tenant Improvements
Allowance: Sixty Thousand Dollars ($60,000)
Tenant
Improvements Loan: Up to Forty Thousand Dollars ($40,000)
Exhibits: Exhibit A Diagram of the Premises
Exhibit B Tenant Improvements
Exhibit B-1 Final Plans and Specifications for Tenant Improvements
Exhibit C Commencement Date Memorandum
Exhibit D Tenant Improvement Loan Amortization Memorandum
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EXHIBIT A
DIAGRAM OF THE PREMISES
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EXHIBIT B
TENANT IMPROVEMENTS
This exhibit, entitled "Tenant Improvements," is and shall constitute
EXHIBIT B to the Lease Agreement, dated as of the Lease Date, by and between
Landlord and Tenant for the Premises. The terms and conditions of this EXHIBIT B
are hereby incorporated into and are made a part of the Lease. Capitalized terms
used, but not otherwise defined, in this EXHIBIT B have the meanings ascribed to
such terms in the Lease.
1. Tenant Improvements. Subject to the conditions set forth below,
Landlord agrees to construct certain Tenant Improvements in the Premises
pursuant to the terms of this EXHIBIT B.
2. Definition. "Tenant Improvements" as used in the Lease and this
EXHIBIT B shall include only those improvements within the interior portions of
the Premises which are depicted on the Final Plans and Specifications (hereafter
defined in Paragraph 3) or described hereinbelow. "Tenant Improvements" shall
specifically not include any alterations, additions, or improvements installed
or constructed by Tenant, and any of Tenant's personal property or trade
fixtures.
The Tenant Improvements may include:
(a) Partitioning, doors, floor coverings, finishes, ceilings,
wall coverings and painting, millwork and similar items.
(b) Electrical wiring, lighting fixtures, outlets and switches,
and other electrical work.
(c) Duct work, terminal boxes, defusers and accessories required
for the completion of the heating, ventilation and air conditioning systems
serving the Premises, including the cost of meter and key control for after-hour
air conditioning.
(d) Any additional Tenant requirements including, but not limited
to odor control, special heating, ventilation and air conditioning, noise or
vibration control or other special systems.
(e) All fire and life safety control systems such as fire walls,
sprinklers, halon, fire alarms, including piping, wiring and accessories
installed within and serving the Premises.
(f) All plumbing, fixtures, pipes, and accessories to be
installed within and serving the Premises.
3. Plans and Specifications. Landlord shall retain an architect selected
by Landlord ("Architect") for the preparation of preliminary and final working
architectural and engineering plans and specifications for the Tenant
Improvements ("Final Plans and Specifications"). Landlord reserves the right to
substitute for the Architect another architect of its selection.
B-1
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Tenant shall cooperate diligently with the Architect and shall furnish within
ten (10) days after request therefor, all information required by the Architect
for completion of the Final Plans and Specifications, and shall provide (in
writing, if requested by Landlord), not later than three (3) business days after
request therefor, any approval or disapproval of preliminary or Final Plans and
Specifications which Tenant is permitted to give under this EXHIBIT B. Landlord
and Tenant shall indicate their approval of the Final Plans and Specifications
by initialing them and attaching them to the Lease as EXHIBIT B-1. Upon
completion of the Final Plans and Specifications and approval thereof by
Landlord and Tenant, Landlord will obtain subcontractor trade bids and furnish a
cost breakdown to Tenant. In the event the estimated Tenant Improvements Cost
(hereafter defined in Paragraph 7), based on such bids and the reasonably
anticipated costs of other items constituting the Tenant Improvements Cost,
exceeds the sum of the Tenant Improvements Allowance (hereafter defined in
Paragraph 5) and the Tenant Improvements Loan (hereafter defined in Paragraph 6)
plus any amounts which Tenant desires to pay as an Excess Tenant Improvements
Cost (hereafter defined in Paragraph 8.A.) ("Tenant's T.I. Budget"), at Tenant's
request, the Final Plans and Specifications may be revised once, at Tenant's
cost and expense. Any such revisions shall be subject to Landlord's approval,
and the amended Final Plans and Specifications, as approved by Landlord and
Tenant, shall thereafter be deemed to be the Final Plans and Specifications for
the Tenant Improvements. The amended Final Plans and Specifications shall be
approved by Tenant (in writing, if requested by Landlord) not later than three
(3) days after Landlord's request therefor. Landlord shall thereafter submit
such amended Final Plans and Specifications to its contractor and subcontractor
for rebidding, and shall furnish a cost breakdown to Tenant. If the estimated
Tenant Improvements Cost, as determined by the bids based on the amended Final
Plans and Specifications and the reasonably anticipated costs of other items
constituting the Tenant Improvements Cost, result in an Excess Tenant
Improvements Cost, then Tenant shall pay such Excess Tenant Improvements Cost as
and when required by Paragraph 8.A. Tenant's failure to approve or disapprove
any matters which Tenant shall be entitled to approve or disapprove pursuant to
this Paragraph 3 shall be conclusively deemed to be approval of same by Tenant.
4. Landlord to Construct Improvements. When the Final Plans and
Specifications (as amended, if required by Paragraph 3 above) have been approved
by Landlord and Tenant, Landlord shall submit such Final Plans and
Specifications to all governmental authorities having rights of approval over
the Tenant Improvement work and shall apply for all governmental approvals and
building permits. Subject to satisfaction of all conditions precedent and
subsequent to its obligations under this EXHIBIT B, and further subject to the
provisions of Paragraph 8.A., Landlord shall thereafter commence and proceed to
complete construction of the Tenant Improvements in a good and workmanlike
manner.
5. Tenant Improvements Allowance. Landlord shall provide an allowance
for the planning and construction of the Tenant Improvements in the amount
specified in the Basic Lease Information ("Tenant Improvements Allowance").
Subject to Paragraph 6 below, the Tenant Improvements Allowance shall be the
maximum contribution by Landlord for the Tenant Improvements Cost, as defined in
Paragraph 7. Should the actual cost of planning and constructing those Tenant
Improvements depicted on the Final Plans and Specifications be less than the
Tenant Improvements Allowance, the Tenant Improvements Allowance shall be
reduced to an amount equal to said actual cost.
B-2
33
6. Tenant Improvements Loan. In addition to the Tenant Improvements
Allowance, Landlord agrees to loan to Tenant up to Forty Thousand Dollars
($40,000.00) for Tenant Improvements (the "Tenant Improvements Loan"). The
Tenant Improvements Loan shall be repayable by Tenant to Landlord in
substantially equal self-amortizing installments over the initial term of the
Lease, together with interest on the balance outstanding from time to time at
the rate of twelve percent (12%) per annum; provided, however, that in the event
the Lease shall terminate for any reason prior to the scheduled expiration
thereof, the Tenant Improvements Loan and all accrued and unpaid interest
thereon shall immediately become due and payable in full. When the Tenant
Improvements have been completed and the amount of the Tenant Improvements Loan
has been determined by Landlord, the parties shall promptly execute a Tenant
Improvement Loan Amortization Memorandum in the form of EXHIBIT B-2 hereto.
7. Tenant Improvements Cost. The Tenant Improvements Cost ("Tenant
Improvements Cost") shall include all costs and expenses associated with the
design, preparation, approval and construction of the Tenant Improvements,
including, but not limited, to the following:
(a) All costs of preliminary and final architectural and
engineering plans and specifications for the Tenant Improvements, and
engineering costs associated with completion of the State of California energy
utilization calculations under Title 24 legislation;
(b) All costs of obtaining building permits and other necessary
authorizations from local governmental authorities, and all costs of complying
with the Americans With Disabilities Act and any other federal, state or local
law, ordinance, statute, code or regulation applicable to or triggered by the
construction of the Tenant Improvements;
(c) All costs of interior design and finish schedule plans and
specifications including as-built drawings;
(d) All direct and indirect costs of procuring, constructing and
installing the Tenant Improvements in the Premises, including, but not limited
to, the construction fee for overhead and profit and the cost of all on-site
supervisory and administrative staff, office, equipment and temporary services
rendered by Landlord's contractor in connection with construction of the Tenant
Improvements;
(e) All fees payable to the Architect and Landlord's engineering
firm if they are required by Tenant to redesign any portion of the Tenant
Improvements following Tenant's approval of the Final Plans and Specifications;
(f) All construction and project management fees payable by
Landlord to Landlord's property management company or any other individual or
entity; and
(g) Utility connection fees.
In no event shall the Tenant Improvements Cost include any costs of procuring,
constructing or installing in the Premises any of Tenant's personal property or
trade fixtures.
B-3
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8. Excess Tenant Improvements Cost and Retention.
A. Excess Tenant Improvements Cost. If the Tenant Improvements
Cost is more than the sum of the Tenant Improvements Allowance and the Tenant
Improvements Loan, then the difference between the sum of the Tenant
Improvements Cost and the sum of the Tenant Improvements Allowance and the
Tenant Improvements Loan ("Excess Tenant Improvements Cost") shall be paid by
Tenant to Landlord in cash, within ten (10) days of delivery of statements from
Landlord to Tenant therefor. If construction of the Tenant Improvements will
result in Excess Tenant Improvements Cost, Landlord shall not be obligated to
commence construction of the Tenant Improvements if payment of the Excess Tenant
Improvements Costs by Tenant is not received within ten (10) days after delivery
by Landlord to Tenant of a statement therefor; provided, however, that Landlord
may, at its option, commence construction of the Tenant Improvements, in which
event Tenant shall pay the Excess Tenant Improvements Cost within ten (10) days
after delivery by Landlord to Tenant of the statement therefor. If Landlord so
elects to commence construction of the Tenant Improvements or has already
commenced construction of the Tenant Improvements when there occurs an Excess
Tenant Improvements Cost, then Landlord shall be entitled to suspend or
terminate construction of the Tenant Improvements if payment by Tenant to
Landlord of the Excess Tenant Improvement Costs has not been received within ten
(10) days after delivery by Landlord to Tenant of a statement therefor.
B. Retention. Landlord shall pay the items of Tenant Improvements
Cost first from ninety percent (90%) of the Tenant Improvements Allowance and
Tenant Improvements Loan, and shall retain ten percent (10%) of the Tenant
Improvements Allowance and Tenant Improvements Loan for contingencies, and then
shall invoice Tenant for items of Tenant Improvements Cost thereafter incurred.
Landlord shall be entitled to suspend or terminate construction of the Tenant
Improvements if payment of any invoice given by Landlord to Tenant under this
Paragraph 8.B. is not received within ten (10) days after delivery to Tenant.
Upon completion of the Tenant Improvements, the amount of any then unused Tenant
Improvements Allowance and Tenant Improvements Loan shall be applied to any
unpaid Tenant Improvements Costs, and if Tenant has paid any amounts to Landlord
pursuant to this Paragraph 8.B., the unused balance of the Tenant Improvements
Allowance and Tenant Improvements Loan, if any, shall be paid to Tenant to
reimburse Tenant for payments made by Tenant under this Paragraph 8.B., if any
(but not in excess of the aggregate amount actually paid, if any, by Tenant
under this Paragraph 8.B.).
9. Change Request. When the Final Plans and Specifications have been
approved by Landlord, there shall be no changes without Landlord's prior written
consent, except for (a) necessary on-site installation variations or minor
changes necessary to comply with building codes and other governmental
regulations; (b) one revision, if requested by Tenant, to adjust the estimated
Tenant Improvements Cost to Tenant's T.I. Budget therefor, as permitted by
Paragraph 3 above; and (c) changes approved in writing by both parties. Any
costs related to such governmentally required or requested and approved changes
shall be added to the Tenant Improvements Cost and, to the extent such cost
results in Excess Tenant Improvements Cost, shall be paid for by Tenant as and
with any Excess Tenant Improvements Cost as set forth in Paragraph 8.A. The
billing for such additional costs to Tenant shall be accompanied by evidence of
the amounts billed as is customarily used in the business. Costs related to
changes shall
B-4
35
include, without limitation, any architectural or design fees, And Landlord's
general contractor's price for effecting the change.
10. Termination. If the Lease is terminated prior to completion of the
Tenant Improvements, for any reason due to the Default of Tenant under the
Lease, in addition to any other damages available to Landlord, Tenant shall pay
to Landlord, within five (5) days of receipt of a statement therefor, all costs
incurred by Landlord through the date of termination in connection with the
Tenant Improvements. Landlord shall have the right to terminate the Lease, upon
written notice to Tenant, if Landlord is unable to obtain a building permit for
the Tenant Improvements within one hundred twenty (120) days from the date the
Lease is mutually executed.
11. Interest. Any payments required to be made by Tenant hereunder which
are not paid when due shall bear interest at the maximum rate permitted by law
from the due date therefor until paid.
12. Disclaimer. Landlord shall have no liability to Tenant in the event
construction of the Tenant Improvements is delayed or prevented due to any cause
beyond Landlord's reasonable control. If Tenant is entitled or permitted to
enter the Premises prior to completion of the Tenant Improvements, Landlord
shall not be liable to Tenant or its employees or agents for any loss or damage
to property, or injury to person, arising from or related to construction of the
Tenant Improvements. Tenant shall take all reasonable precautions to protect
against such loss, damage or injury during construction of the Tenant
Improvements, and shall not interfere with the conduct of the Tenant Improvement
work. Tenant shall cooperate with all reasonable directives of Landlord and
Landlord's contractor in order to minimize any disruption or delay in completion
of the Tenant Improvements work.
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EXHIBIT B-1
FINAL PLANS AND SPECIFICATIONS
Reference is hereby made to that certain Lease Agreement dated December
__, 1995 by and between Aetna Life Insurance Company, a Connecticut corporation,
as landlord ("Landlord"), and PLX Technology, Inc., a California corporation, as
tenant ("Tenant") ("Lease Agreement").
The Final Plans and Specifications (as defined in Exhibit B to the Lease
Agreement) consists of the following described drawings, specifications and
other documents:
Title of Drawing, Specification
or Other Document Date
The Final Plans and Specifications have been initialed by both Landlord
and Tenant and are on file with Landlord.
Initials: Landlord _______ Tenant _______
37
EXHIBIT C
COMMENCEMENT DATE MEMORANDUM
LANDLORD: AETNA LIFE INSURANCE COMPANY
TENANT: PLX TECHNOLOGY, INC.
DATE: December __, 1995
PREMISES: Located at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx
Tenant hereby accepts the Premises as being in the condition required
under the Lease, with all Tenant Improvements completed (except for minor
punchlist items which Landlord agrees to complete).
The Commencement Date of the above referenced Lease is hereby
established as ________________, 1995.
TENANT:
PLX TECHNOLOGY, INC.,
a California corporation
By
--------------------------------------
Print
Name:
-----------------------------------
Its
------------------------------------
Approved and Agreed:
AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
By
----------------------------------
Print
Name:
-------------------------------
Its
---------------------------------
38
EXHIBIT D-2
TENANT IMPROVEMENT LOAN
AMORTIZATION MEMORANDUM
LANDLORD: AETNA LIFE INSURANCE COMPANY
TENANT: PLX TECHNOLOGY, INC.
DATE: December __, 1995
PREMISES: Located at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx
Tenant hereby acknowledges and agrees that Landlord has made a Tenant
Improvement Loan to Tenant in the amount of _____________________ ($________)
pursuant to Paragraph 6 of Exhibit B to the Lease and that said Tenant
Improvement Loan, together with interest thereon at the rate of twelve percent
(12%) per annum, shall be amortized over the Term of the Lease in monthly
installments of _____________________ ($________), said installments to be due
and payable concurrently with the installments of Base Rent.
TENANT:
PLX TECHNOLOGY, INC.,
a California corporation
By
--------------------------------------
Print
Name:
-----------------------------------
Its
------------------------------------
Approved and Agreed:
AETNA LIFE INSURANCE COMPANY,
a Connecticut corporation
By
----------------------------------
Print
Name:
-------------------------------
Its
---------------------------------
