EXHIBIT 10.1
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
BY AND BETWEEN
MICRO LINEAR CORPORATION AND
ARTEST CORPORATION
This AGREEMENT FOR PURCHASE AND SALE OF ASSETS (the "Agreement") is made
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and entered into as of April 28, 2000 by and between Micro Linear Corporation, a
Delaware corporation (the "Seller"), and Artest Corporation, a California
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corporation (the "Buyer").
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RECITALS
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A. Seller is engaged in the business of designing, developing and
marketing, analog and mixed signal integrated circuits.
B. Buyer is engaged in the business of testing integrated circuits.
C. Buyer desires to purchase at the Closing (as hereinafter defined)
certain specified assets of Seller and to assume certain specified liabilities
of Seller, all in accordance with the terms and conditions contained herein.
D. Buyer desires to lease certain property of Seller.
E. Seller desires to engage Buyer to test certain integrated circuits of
Seller.
NOW, THEREFORE, in consideration of the representations, warranties and
agreements herein contained, the parties hereto agree as follows:
SECTION 1
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1. DEFINITIONS. Capitalized terms in this Agreement shall have the
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meanings stated in this Section I or defined elsewhere in this Agreement. A
reference to a particular Exhibit is to an Exhibit to this Agreement, each of
which is incorporated into and made a part of this Agreement by that reference.
A reference to a particular Section is to a Section of this Agreement.
"Assets" is defined in Section 2.1.
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"Assumed Contracts" is defined in Section 3.2.
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"Assumed Liabilities" is defined in Section 3.2.
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"Claims" means any and all suits, demands, actions, fines, penalties,
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claims, enforcement actions, Liens, Liabilities, damages, deficiencies,
injunctions, attorneys' fees, experts' fees, costs and expenses imposed,
threatened, paid or incurred at any time, whether foreseeable or unforeseeable,
conditional or unconditional.
"Closing" and "Closing Date" are defined in Section 4.1.
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* Confidential treatment has been requested with respect to certain portions of
this exhibit. Such portions are marked with a "[*]" in place of the redacted
language. Omitted portions are filed separately with the Securities and
Exchange Commission.
"Compensation" means all base straight time gross earnings, commissions,
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overtime, shift premium, incentive compensation, incentive payments, bonuses,
health insurance benefits, payroll taxes and other withholdings. and other
compensation related amounts paid or accrued with respect to any Employee.
"Disclosure Schedule" is defined in Section 5. 1.
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"Employees" means those individuals identified in the Operating Agreement
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who are employed by Seller on the date hereof and who are to become employed by
Buyer at the Closing.
"Governmental Body" means any foreign, federal, state, local or other
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governmental authority, agency or regulatory body.
"Intellectual Property" means trademarks (including service marks),
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copyrights and applications therefor, trade names, patents and applications
therefor, and software.
"Lease Agreement" is defined in Section 4.2(e).
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"Liabilities" means any and all liabilities (including strict liability),
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claims, judgments, demands, actions, causes of action, damages, losses,
expenses, penalties, fines, obligations, encumbrances, liens, costs, and
expenses of investigation or defense of any claims of whatever kind or nature,
whether absolute, contingent, accrued or otherwise, matured or unmatured,
foreseeable or unforeseeable.
"Liens" means mortgages, deeds of trust, pledges, taxes, security
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interests, liens, leases, licenses, escrow arrangements. liabilities,
encumbrances, costs, charges and claims of any nature whatsoever, direct or
indirect, whether accrued, absolute, contingent or otherwise (including, without
limitation, any agreement to give any of the foregoing).
"Operating Agreement" is defined in Section 4.2(d).
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"Person" means any individual, corporation, partnership, limited
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liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or governmental body.
"Purchase Price" is defined in Section 3.1.
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"Returns" is defined in Section 5.1(d).
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"Tax" (and, with correlative meaning, "Taxes" and "Taxable") means any
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federal, state, local or foreign income, gross receipts, property, sales, use,
license, excise, franchise, employment, payroll, withholding, alternative or
add-on minimum, ad valorem, transfer or excise tax, or any other tax, custom,
duty, governmental fee or other like assessment or charge of any kind
whatsoever, together with any interest or penalty, imposed by any Governmental
Body.
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SECTION 2
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2. SALE OF ASSETS.
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2.1 Assets to be Purchased at the Closing. Subject to the terms and
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conditions of this Agreement. Seller agrees to sell. transfer, convey, assign
and deliver to Buyer on the Closing Date (as defined herein), and Buyer agrees
to buy and acquire, all right, title and interest of Seller in and to the
following assets and properties of Seller as provided herein (collectively, the
"Assets"):
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(a) The testing equipment, machinery, tooling, computer
hardware, software, intellectual property necessary to the performance by the
Assets of their intended functions or purposes and other tangible personal
property of Seller specifically listed in Schedule 2.1 (a) hereto;
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(b) Copies of all manufacturing and technical documentation
(including any documentation set forth in magnetic, machine-readable form) and
any other appropriate documentation associated with the above assets and related
thereto or used by Seller in the conduct of the business related thereto.
SECTION 3
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3. CONSIDERATION. In consideration for the transfer of the Assets,
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Buyer agrees to make the following payments and assume the following
liabilities:
3.1 Purchase Price. The aggregate purchase price (the "Purchase
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Price") to be paid by Buyer to Seller hereunder shall be Five Million Nine
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Hundred Fifty-Six Thousand Three Hundred Thirty-Two Dollars ($5,956,332). One
Million Dollars ($1,000,000) of the Purchase Price shall be paid on the
Closing Date by wire transfer to an account designated by Seller, with the
balance of the Purchase Price to be evidenced by a Promissory Note
substantially in the form attached hereto as Exhibit A (the "Promissory Note")
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and to be paid in such amounts and at such times as are set forth in such
note.
3.2 Assumed Liabilities. On the Closing Date, Buyer shall assume and
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agree thereafter to pay, perform and discharge Seller's obligations under the
contracts to which Seller is a party and which are specifically listed on
Schedule 3.2 hereto (collectively, the "Assumed Contracts") and no others, but
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excluding any such obligations or liabilities based on failure by Seller to
perform its obligations under the Assumed Contracts prior to the Closing Date
(the "Assumed Liabilities"). Except for the Assumed Liabilities, Buyer shall not
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assume, directly or indirectly, or have any responsibility for any Liability of
Seller, and Seller shall retain all Liabilities arising from the operation of
the Assets and the related business prior to the Closing Date, other than the
Assumed Liabilities. Without limiting the foregoing, Buyer shall not directly or
indirectly, assume or have any responsibility for any liability for any
Compensation or other Liabilities related to the employment of the Employees by
Seller prior to the Closing Date.
3.3 The buyer will be solely responsible for obtaining any required
software licenses as a result of the transfer of the assets as per this
agreement.
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SECTION 4
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4. CLOSING.
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4.1 Closing Date. The closing of the transactions contemplated by
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this Agreement (the "Closing") shall occur at the offices of Xxxxxx Xxxxxxx
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Xxxxxxxx & Xxxxxx, P.C., 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx, on April 28,
2000, or at such other date, time and place upon which Seller and Buyer shall
mutually agree (the "Closing Date").
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4.2 Conditions to Obligation of Buyer. The obligation of Buyer to
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close hereunder is subject to the following conditions:
(a) Subject to changes that are not in the aggregate materially
adverse in the reasonable judgment of Buyer, the representations and warranties
made by Seller in this Agreement shall be true and correct on and as of the
Closing Date with the same effect as if made on and as of the Closing Date, and
Seller shall have performed and complied with all agreements, covenants and
conditions on its part required to be performed or complied with on or prior to
the Closing Date.
(b) A duly authorized officer of Seller shall deliver to Buyer,
at the Closing, a certificate certifying as to the matters set forth in Section
4.2(a) hereof and that there has been no adverse change with respect to the
Assets or the Assumed Liabilities since the date hereof.
(c) No legal action or proceeding shall be pending or threatened
(i) by any Governmental Body seeking to restrain, prohibit, invalidate or
otherwise affect the consummation of the transactions contemplated hereby or
(ii) which is reasonably likely to have a material adverse effect on the Assets
or the use of the Assets by Buyer.
(d) Buyer and Seller shall have entered into an operating
agreement regarding TMT RFX test systems, production test services, off-shore
assembly and test services and personnel matters in substantially the form
attached hereto as Exhibit B (the "Operating Agreement").
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(e) Buyer and Seller shall have entered into a lease agreement
with respect to certain space at 0000 Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx in
substantially the form attached hereto as Exhibit C (the "Lease Agreement").
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(f) Seller shall have delivered to Buyer all bills of sale,
endorsements, assignments and other instruments as Buyer shall reasonably
request or as necessary or appropriate to sell, convey, assign, transfer and
deliver to Buyer title to all the Assets.
(g) Buyer shall have satisfactorily completed its due diligence
with regard to the Assets to be carried out pursuant to Section 6.5.
4.3 Conditions of Obligation of Seller. The obligation of Seller to close
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hereunder is subject to the following conditions:
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(a) Subject to changes that are not in the aggregate materially
adverse in the reasonable judgment of Seller, the representations and warranties
made by Buyer in this Agreement shall be true and correct on and as of the
Closing Date with the same effect as if made on and as of the Closing Date, and
Buyer shall have performed and complied with all agreements, covenants and
conditions on its part required to be performed or complied with on or prior to
the Closing Date.
(b) A duly authorized officer of Buyer shall deliver to Seller,
at the Closing, a certificate certifying as to the matters set forth in Section
4.3(a) hereof and that there has been no material adverse change with respect to
the ability of Buyer to perform its obligations under the Operating Agreement
since the date hereof.
(c) No legal action or proceeding shall be pending or threatened
(i) by any Governmental Body seeking to restrain, prohibit, invalidate or
otherwise affect the consummation of the transactions contemplated hereby or
(ii) which is reasonably likely to have a material adverse effect on the ability
of Buyer to perform its obligations under the Operating Agreement.
(d) Buyer and Seller shall have entered into the Operating
Agreement.
(e) Buyer and Seller shall have entered into the Lease
Agreement.
(f) Seller shall have satisfactorily completed its due diligence
with regard to the business and financial condition of Buyer to be carried out
pursuant to Section 6.5.
SECTION 5
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5. REPRESENTATIONS AND WARRANTIES.
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5.1 Representations and Warranties of Seller. Except as set forth in
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the Seller's Disclosure Schedule attached hereto as Exhibit D, Seller represents
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and warrants to Buyer as of the date of this Agreement and as of the Closing
Date as follows:
(a) Organization, Standing and Qualification. Seller is a
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corporation duly organized, validly existing and in good standing under the laws
of Delaware. Seller has all requisite corporate power and authority and is
entitled to carry on its business as it is now being conducted, and to own,
lease or operate the properties owned, leased and operated by it in the places
where such business is now conducted. Seller is qualified to do business as a
foreign corporation in the State of California.
(b) Execution, Delivery and Performance. Seller has full
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corporate power and authority to enter into this Agreement and to carry out the
transactions contemplated hereby, and all corporate and other proceedings
required to be taken to authorize the execution, delivery and performance of
this Agreement have been taken. This Agreement has been duly executed and
delivered by and constitutes the valid and binding obligation of Seller and is
enforceable in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, insolvency, moratorium, and similar laws
affecting creditors' rights generally and to
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equitable principles limiting the availability of the remedy of specific
performance or other equitable relief).
(c) Good Title to Assets. Seller has good and marketable title
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to the Assets, and none of the Assets is subject to any Lien. Other than the
representations expressly set forth in this Agreement, Seller makes no other
representations or warranties with respect to the Assets, their condition or
their fitness for any particular purpose.
(d) Taxes.
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(i) To the extent a failure to do so could adversely impact
the Assets or Buyer's use of the Assets, (a) Seller has timely filed within the
time period for filing or any extension granted with respect thereto, all
federal, state, local and foreign Tax returns, reports and estimates ("Returns")
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which it is required to file relating or pertaining to any and all Taxes
attributable to or levied upon the Assets and (b) paid any and all Taxes it is
required to pay in connection with the taxable periods to which such Returns
relate. There are no Liens on the Assets relating or pertaining to Taxes.
(ii) To the extent relevant to the Assets, Seller shall
retain and provide Buyer with all records or other information that may be
relevant to the preparation of any Returns, or the conduct of any audit or
examination, or other Tax proceeding by a Governmental Body or otherwise.
(e) Claims and Litigation. No Claim, legal action, suit,
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arbitration, governmental investigation or other legal, regulatory or
administrative proceeding is pending against Seller related to the Assets, nor
to the best of Seller's knowledge is there any threat thereof against or
relating to the Assets or the transactions contemplated by this Agreement.
(f) Suppliers. The Disclosure Schedule contains a correct list
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of all of the current suppliers of supplies, equipment, spare parts or similar
goods necessary for the use or operation of the Assets.
(g) Assumed Contracts. Seller has provided to Buyer copies of
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each of the Assumed Contracts. Except as otherwise indicated in the Disclosure
Schedule, (a) to Seller's best knowledge each of the other parties to the
Assumed Contracts has performed all the obligations required to be performed by
it to date thereunder, (b) Seller does not know of the intention of any party to
terminate any such Assumed Contract, and (c) each Assumed Contract is valid,
binding and enforceable in accordance with its terms and is in full force and
effect.
(h) Employees. There are no suits, actions or administrative,
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arbitration or other proceedings pending or threatened against Seller or
affecting Seller or its business concerning any Employee.
(i) Brokers or Finders. Seller is not obligated, directly or
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indirectly, to any person for brokerage or finders' fees, agents' commissions or
any similar charges in connection with this Agreement or the transactions
contemplated hereby.
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(j) Board Approval. The Board of Directors of Seller has
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unanimously approved this Agreement and the transactions contemplated hereby.
5.2 Representations and Warranties of Buyer. Buyer represents and
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warrants to Seller as of the date of this Agreement and as of the Closing Date
as follows:
(a) Organization, Standing, and Qualification. Buyer is a
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corporation duly organized, validly existing and in good standing under the laws
of the State of California. Buyer has all requisite corporate power and
authority and is entitled to carry on its business as now conducted, and to own,
lease or operate its properties in the places where its business is now
conducted. Buyer is qualified to do business in all foreign jurisdictions in
which it is required to be so qualified, except where the failure to be so
qualified would not have a material adverse effect on the business or assets of
Buyer.
(b) Execution, Delivery and Performance. Buyer has full
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corporate power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby, and all corporate and other proceedings
required to be taken to authorize the execution, delivery and performance of
this Agreement have been taken. This Agreement has been duly executed and
delivered by and constitutes the valid and binding obligation of Buyer and is
enforceable in accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy, insolvency, moratorium and similar laws
affecting creditors' rights generally and to equitable principles limiting the
availability of the remedy of specific performance or other equitable relief).
(c) Claims and Litigation. No Claim, legal action, suit,
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arbitration, governmental investigation or other legal, regulatory or
administrative proceeding is pending against Buyer that is reasonably likely to
have a material adverse effect on the ability of Buyer to perform its
obligations under the Operating Agreement, nor, to the best of Buyer's
knowledge, is there any threat thereof.
(d) Taxes. To the extent a failure to do so could adversely
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impact the ability of Buyer to perform its obligations under the Operating
Agreement, (a) Buyer has timely filed within the time period for filing or any
extension granted with respect thereto, all Returns which it is required to file
and (b) paid any and all Taxes it is required to pay in connection with the
taxable periods to which such Returns relate.
(e) Compliance with Laws and Regulations, Permits. Buyer is in
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compliance with all statutes, laws, rules and regulations with respect to or
affecting its ability to perform its obligations under the Operating Agreement.
Buyer holds and has at all times held all licenses, permits and authorizations
pursuant to the laws and regulations of any Governmental Body, the absence of
which would have a material adverse effect on the ability of Buyer to perform
its obligations under the Operating Agreement. Buyer does not know of any
material violation of any of the foregoing licenses, permits and authorizations
and Buyer has not received notice from any Governmental Body of any such
violation or the intention of such Governmental Body to investigate the
existence of any such violation. There is no fact known to Buyer or any of its
management which adversely affects, or could reasonably be expected to adversely
affect
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the ability of Buyer to perform its obligations under the Operating Agreement or
the ability of Buyer to carry out the transactions contemplated by this
Agreement.
(f) Intellectual Property. Buyer owns or possesses licenses or
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other legally enforceable rights to all Intellectual Property necessary to
conduct Buyer's business as presently conducted and to perform all of Buyer's
obligations contemplated by the Operating Agreement. Buyer is not infringing
upon, or otherwise violating the rights of any third party with respect to any
Intellectual Property. For the Intellectual Property which Buyer uses, but does
not own, Buyer is licensed to use such Intellectual Property and is not in
breach of, or default under, any license agreement.
(g) Brokers or Finders. Buyer is not obligated, directly or
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indirectly, to any person for brokerage or finders' fees, agents' commissions or
any similar charges in connection with this Agreement or the transactions
contemplated hereby.
(h) Board Approval. The Board of Directors of Buyer has
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unanimously approved this Agreement and the transactions contemplated hereby.
SECTION 6
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6. ADDITIONAL AGREEMENTS.
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6.1 Transfer Taxes. In connection with the transactions contemplated
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hereunder, Buyer shall pay all sales, use, transfer and other similar taxes, if
any, which may be or become due and payable as a result hereof.
6.2 Conduct of Business by Seller Prior to Closing Date. During the
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period from the date of this Agreement up to the Closing Date, Seller shall:
(a) use the Assets in the usual, regular and ordinary course and
in substantially the same manner as heretofore used;
(b) preserve and maintain the Assets in their condition as of
the date hereof (subject to use in the ordinary course of business);
(c) perform all obligations required to be performed by it under
all of the Assumed Contracts; and
(d) not mortgage, pledge or subject to Lien any of the Assets or
sell or transfer, or enter into any agreement to sell or transfer, any of the
Assets.
6.3 Conduct of Business by Buyer Prior to Closing Date. During the
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period from the date of this Agreement up to the Closing Date, Buyer shall:
(a) conduct its business in the ordinary course consistent with
past practices; and
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(b) give prompt notice to Seller of any material adverse change
to its business, financial condition or ability to perform the obligations
contemplated by the Operating Agreement.
6.4 Discharge of Liabilities. From and after the date hereof, Buyer
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shall discharge when due all of the Assumed Liabilities.
6.5 Access to Information. Between the date of this Agreement and the
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Closing Date, (i) Seller shall give Buyer and its authorized representatives
reasonable access during normal working hours to Seller's facilities and
properties relating to the Assets, and its books and records relating to the
Assets, shall permit Buyer to make inspections thereof, and shall furnish Buyer
with such information with respect to the Assets as Buyer may from time to time
reasonably request, and (ii) Buyer shall give Seller and its authorized
representatives reasonable access during normal working hours to Buyer's
facilities and properties, and its books and records, shall permit Seller to
make inspections thereof, and shall furnish Seller with such information with
respect to Buyer's business and financial condition as Buyer may from time to
time reasonably request. Each party acknowledges that such disclosure shall be
subject to the [Confidentiality Agreement] between the parties dated __________,
1999.
6.6 Public Disclosure. Seller and Buyer shall consult with each other
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before issuing any press release or otherwise making any public statement or
making any other public (or non-confidential) disclosure regarding the terms of
this Agreement and the transactions contemplated hereby, and neither shall issue
any such press release or make any such statement or disclosure without the
prior approval of the other (which approval shall not be unreasonably withheld),
except that Seller may make such disclosures as are required by the Securities
and Exchange Commission or the Nasdaq National Market.
6.7 Consents. Promptly after the date hereof, Seller and Buyer shall
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consult with each other regarding the actions which are required to be taken to
cause the Assumed Contracts to be transferred to Buyer on the Closing Date.
Subject to such consultations, Seller shall promptly apply for or otherwise
seek, and use reasonable commercial efforts to obtain, all consents and
approvals required to be obtained by it for the consummation of the transactions
contemplated hereby and shall use reasonable commercial efforts to obtain all
necessary consents, waivers and approvals under any of the Assumed Contracts in
connection with the transaction for the assignment thereof or otherwise. The
buyer will be solely responsible for obtaining any software licenses associated
with the transfer of the test equipment identified.
SECTION 7
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7. TERMINATION.
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7.1 Agreement Termination. This Agreement may be terminated at any
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time on or prior to or at the Closing Date: (a) by Buyer or Seller if there has
been a material misrepresentation, breach of warranty, or breach of covenant by
the other in any of its representations, warranties or covenants set forth
herein; (b) by Buyer if the conditions stated in Section 4.2 have not been
satisfied by the Closing
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Date other than as a result of inaction by Buyer; (c) by Seller if the
conditions stated in Section 4.3 have not been satisfied by the Closing Date
other than as a result of inaction by Seller; or (d) by mutual written agreement
of Buyer and Seller. If the Closing Date does not occur by April 28, 2000, this
Agreement shall terminate effective as of 5:00 p.m. (California time) on such
date, unless such date is extended by mutual written agreement of the parties
hereto, in which case this Agreement shall terminate on the date and at the time
selected by the parties for such extension.
7.2 Effect of Termination. If this Agreement shall be terminated as
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provided in Section 7.1, all obligations of the parties hereunder shall
terminate without liability of any party to any other party, except that in the
event of termination by reason of Section 7.1(a), the breaching party shall be
liable for the reasonable expenses (including the reasonable attorneys' fees and
expenses of counsel and court costs) of the other party in connection herewith
and in the event of a willful breach the breaching party shall be liable for the
damages of the other party resulting from such breach.
SECTION 8
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8. MISCELLANEOUS.
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8.1 Absence of Third Party Beneficiary Right. No provisions of this
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Agreement are intended, nor will be interpreted, to provide or create any third
party beneficiary rights or any other rights of any kind in any client,
customer, affiliate, stockholder, partner or employee of any party hereto or any
other person or entity and all provisions hereof will be personal solely between
the parties to this Agreement.
8.2 Further Assurances. Each party agrees to cooperate with the other
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party and to execute such further instruments, documents and agreements and to
give such further written assurances from and after the date hereof as may be
reasonably requested to evidence and reflect the transaction described herein.
8.3 Changes, Waivers, Etc. Neither this Agreement nor any provision
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hereof may be amended, changed, waived, discharged or terminated orally, except
by a statement in writing which references this Agreement and is signed by the
party against whom enforcement of the amendment, change, waiver, discharge or
termination is sought.
8.4 Expiry of Representations and Warranties. The representations and
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warranties contained in this Agreement shall expire on the Closing Date.
8.5 Payment of Fees and Expenses. Each of the parties hereto shall
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pay its own respective fees and expenses incurred in connection herewith.
8.6 Notices. All notices, requests, consents and other communications
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required or permitted hereunder shall be in writing and shall be delivered, sent
by telecopy, or mailed first-class postage prepaid, registered or certified
mail,
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If to Buyer: Artest Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxx, President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Seller: Micro Linear Corporation
0000 Xxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: J. Xxxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Such notices and other communications shall for all purposes of this Agreement
be treated as being effective or having been given if delivered personally or by
telecopy on the date of delivery, or, if sent by mail, five (5) days thereafter.
8.7 Entire Agreement. This Agreement, including the schedules and
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exhibits which are incorporated into and made an internal part of this Agreement
by reference, sets forth the entire understanding of the parties and supersedes
all prior agreements of the parties with respect to the subject matter hereof
8.8 Satisfaction of Conditions. Each party will use reasonable
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commercial efforts to cause all conditions to its obligations hereunder to be
timely satisfied and to perform and fulfill all obligations on its part to be
performed and fulfilled under this Agreement to the end that the transactions
contemplated hereby shall be effected substantially in accordance with the terms
of this Agreement as soon as practicable.
8.9 Bulk Transfer Laws. The parties hereby waive compliance with any
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applicable bulk transfer laws, including, but not limited to, the bulk transfer
provisions of the Uniform Commercial Code of any state, or any similar statute,
with respect to the transactions contemplated hereby.
8.10 Attorneys' Fees. If any litigation or arbitration is commenced
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between the parties hereto or their representatives concerning any provision of
this Agreement or the rights and duties of any person or entity hereunder,
solely as between the parties hereto or their successors, the party or parties
prevailing in such proceeding (including any arbitration) will be entitled to
the reasonable attorneys' fees and expenses of counsel and court costs and other
out-of-pocket expenses incurred by reason of such litigation or arbitration.
Page 11
8.11 Headings, References to Agreement. The headings of the sections
---------------------------------
of this Agreement have been inserted for convenience of reference only and do
not constitute a part of this Agreement. References herein to "this Agreement"
shall include all schedules and exhibits hereto.
8.12 Choice of Law; Interpretation. It is the intention of the parties
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that the laws of the State of California shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights
and duties of the parties.
8.13 Arbitration. Any and all disputes, controversies or claims
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whether of law or fact and of any nature whatsoever arising from or respecting
this Agreement shall be decided by binding arbitration in accordance with the
Commercial Arbitration Rules then in effect of the American Arbitration
Association (the "Arbitration Rules"). Unless otherwise agreed to in writing the
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arbitration shall be held in San Jose, California.
The arbitrators shall be selected as follows: In the event the parties
agree on one arbitrator, the arbitration shall be conducted by such arbitrator.
In the event the parties do not so agree, Seller and Buyer shall each designate
one arbitrator within thirty (30) days following receipt of a notice from the
other party of such party's election to submit an unresolved matter to
arbitration. Such designated arbitrators shall mutually agree upon and shall
designate a third arbitrator; provided, however, that failing such agreement
within twenty (20) days after the end of the thirty (30) day notice period, the
third arbitrator shall be appointed in accordance with the Arbitration Rules.
At the request of either party, the arbitration proceedings will be
confidential; in such case all documents, testimony and records shall be
received, heard and maintained by the arbitrator(s) and the American Arbitration
Association as confidential records. The arbitrators shall have the authority to
enter an appropriate protective order to enforce such confidentiality.
The arbitrators, who shall act by majority vote, shall be able to decree
any and all relief as a temporary restraining order, a temporary and/or a
permanent injunction, and shall also be able to award damages, with or without
an accounting and costs. The final decision of the majority of the arbitrators,
which shall be delivered in writing, shall constitute a conclusive determination
of the matter in question, shall be binding upon the parties hereto and shall
not be contested by either of them. The decree or judgment of an award rendered
by the arbitrator may be entered in any court having jurisdiction thereof.
Reasonable notice of the time and place of arbitration shall be given to
all persons as shall be required by law, in which case such persons or their
authorized representatives shall have the right to attend and/or participate in
all the arbitration hearings in such manner as the law shall require.
8.14 Severability. To the extent any provision of this Agreement shall
------------
be invalid or unenforceable, it shall be considered deleted from this Agreement
and the remaining provisions of this Agreement shall be unaffected and shall
continue in full force and effect.
8.15 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
Page 12
8.16 Counterparts. This Agreement may be executed in counterparts,
------------
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
8.17 Advice of Legal Counsel. Each party acknowledges and represents
-----------------------
that, in executing this Agreement, it has had the opportunity to seek advice as
to its legal rights from legal counsel and that the person signing on its behalf
has read and understood all of the terms and provisions of this Agreement.
Further, each party has reviewed this Agreement, which may not be construed
against any party by reason of its preparation or word processing.
[Remainder of Page Intentionally Left Blank]
Page 13
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed and delivered as of date and year first above written.
MICRO LINEAR CORPORATION ARTEST CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxx Xxx
----------------------------- ----------------------------
Xxxxx X. Xxxxxxxx Xxx Xxx
President and Chief President and Chief
Executive Officer Executive Officer
[Signature Page to Agreement for Purchase and Sale of Assets]
Exhibit A
---------
PROMISSORY NOTE
$4,956,332 April 28, 2000
For value received, the undersigned Artest Corporation, a California
corporation ("Borrower"), irrevocably and unconditionally promises to pay to the
--------
order of Micro Linear Corporation, a Delaware corporation ("Lender"), at such
------
place as the holder hereof may designate, in lawful money of the United States
of America and in immediately available funds, the principal amount of Four
Million Nine Hundred Fifty-Six Thousand Three Hundred Thirty-Two U.S. dollars
($4,956,332) (the "Loan").
----
This note ("Note") is issued pursuant to an Agreement for Purchase and Sale
----
of Assets by and between Borrower and Lender dated as of April 28, 2000 (the
"Purchase Agreement").
------------------
Borrower shall pay interest on the aggregate unpaid principal advanced
hereunder at the per annum rate of six percent (6%), which shall accrue on the
basis of actual days elapsed and a year of 360 days ("Interest"). Interest
--------
hereunder shall be due and payable on the 15th calendar day of each month until
all principal advanced hereunder shall have been paid in full by Borrower.
The principal amount of the Loan shall be due and payable in equal monthly
installments of $165,211.07 beginning on November 15, 2000. All of the
principal amount of the Loan and all other indebtedness of Borrower accrued
under this Note shall be due and payable in full on April 15, 2003. The
principal amount of the Loan is prepayable by Borrower at any time without
penalty.
Borrower promises to pay Lender all costs and expenses of collection of
this Note and to pay all reasonable attorney's fees incurred in such collection,
or in any judicial or other legal proceeding to collect this Note or in appeal
thereof (collectively, "Expenses"), within ten (10) days after its receipt of
--------
Lender's invoice therefor.
If Borrower fails to fully pay when due any principal amount of the Loan,
accrued unpaid Interest or Expenses when due pursuant to this Note, Borrower
shall, in addition to the interest determined in accordance with the foregoing
paragraph, pay default interest at the per annum rate of twelve and one-half
percent (12.5%) or such lesser rate as would equal the maximum rate under
applicable usury law, which shall accrue on the basis of actual days elapsed and
a year of 360 days ("Default Interest"), on all such over-due and unpaid
----------------
principal, Interest and Expenses for a period from the date on which such
failure occurred through the date on which such failure is cured, both
inclusive.
Borrower understands and irrevocably agrees that time is of the essence as
to all obligations of Borrower hereunder and that no delay by Lender in
exercising any power or right hereunder shall operate as a waiver of any power
or right.
Borrower irrevocably waives the right to direct the application of any and
all payments at any time hereafter received by Lender from or on behalf of
Borrower, and Borrower irrevocably agrees that Lender shall have the continuing
exclusive right to apply any and all such payments
Page 1
against the then due and owing obligations of Borrower as Lender may deem
advisable. In the absence of a specific determination by Lender with respect
thereto and except as otherwise provided herein, all payments shall be applied
in the following order: (a) then due and payable fees and expenses, (b) then due
and payable Default Interest payments, (c) then due and payable Interest
payments, and (d) then due and payable principal payments.
This Note shall be governed by, and construed in accordance with, the laws
of the State of California.
"Borrower"
ARTEST CORPORATION
By: /s/ Xxx Xxx
-------------------------
Xxx Xxx
President and CEO
Page 2
Exhibit B
---------
OPERATING AGREEMENT 04/28/2000
DEFINITIONS
The definitions set forth below shall apply wherever they appear in this
Agreement and all exhibits hereto.
"Confidential Information" shall mean any information written or otherwise
disclosed in any medium by one party to the other under this Agreement which is
marked or otherwise designated as "Confidential" or is clearly by its nature
confidential. Confidential Information shall include, but is not limited to,
confidential information of subcontractors and suppliers to either party.
"Production Test Services" shall mean those services Artest agrees to perform
for MLIN pursuant to this contract including, but not limited to providing MLIN
employees access to the TEST, and providing MLIN with sort, assembly, final test
and shipping for MLIN products listed in Exhibit E.
"Retention Amount" shall mean an amount of money to be paid over time by MLIN to
Artest, which agrees to pay such amounts to the TEST Personnel in order to
assure the retention of necessary TEST Personnel. The Retention Amount shall be
equal to the sum of MLIN's current identified program (Exhibit F) for each of
the TEST Personnel as specified in Exhibit G (for a total of [*]). Any part of
the Retention Amount, which has not been paid to the TEST Personnel at the end
of twelve (12) months following the effective date of this Agreement, shall be
returned to MLIN.
"TEST" shall mean the backend test equipment of MLIN test operations which is
listed in Section 2.1a.
"TEST Facilities" shall mean the current location of TEST.
"TEST Personnel" shall mean the operators, techs, QA&R and test personnel listed
in Exhibit G, who are currently employed by MLIN and are part of the transfer.
PERSONNEL
Artest agrees to hire the supervisors, operators, test maintenance, quality and
shipping/receiving personnel listed in Exhibit G who are currently employed by
---------
MLIN to maintain continuity and knowledge of MLIN products. The TEST Personnel
shall become employees of Artest and shall be the sole responsibility of Artest.
Artest will continue to provide MLIN with subcontracting services for production
test and shipping in the same manner as is currently done by MLIN for a minimum
of three (3) years following the closing of the transaction. All of the Artest
personnel assigned to MLIN work projects will be allowed to co-mingle with MLIN
personnel at the MLIN facility located at 0000 Xxxxxxxxx Xxxxx, Xxx Xxxx,
Xxxxxxxxxx. All payments due to Micro
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Such portions are marked with a "[*]" in place of the redacted
language. Omitted portions are filed separately with the Securities and
Exchange Commission.
Linear employees to be hired by Artest as a result of the termination of
employment from Micro Linear are the sole responsibility of Micro Linear.
MLIN and Artest agree to the following retention program to assure continuity or
those personnel to be hired by Artest from MLIN. MLIN will pay the retention
amount as three (3) retainer payments to Artest during the twelve (12) months
following the effective date of the agreement in four (4) month intervals in the
following manner: 4 months (30%), 8 months (30%), 12 months (40%). Arrest agrees
to pay these retention payments received from MLIN to the listed personnel based
on mutually agreed retention policies. Artest will refund to MLIN any retention
amounts not paid to former MLIN employees at the end of the twelve (12) month
period. Any additional retention amounts paid to these or other employees will
be the sole responsibility of Artest. The Retention Amount shall be intended to
meet any severance obligation of MLIN to the TEST Personnel and they shall be
notified of this fact. Any transferred employee who is laid off during the
12-month time period will receive the retention payment entitled through the end
of the applicable 4-month segment. (i.e. if an employee is laid off after 6
months, they will receive the 30% retention payment due through the 8-month time
segment). The retention payments to Artest shall be paid on the following dates:
1st payment: September 1, 2000
2nd payment: January 2, 2001
3rd payment: May 1, 2001
PRODUCTION TEST SERVICES
Production Test Services. MLIN will agree to use Artest as its primary
subcontractor to perform sort, final test and shipping responsibilities for MLIN
products listed in Exhibit E for a period of at least three (3) years following
the closing of the transaction, provided that Arrest can maintain the costs,
service and quality for test and shipping at or below the costs listed in
Exhibit E. The parties agree to meet from time to time during the course of the
---------
term of this agreement to discuss the services and quality for the testing
provided by Arrest to MLIN under this agreement. If MLIN determines that
Arrest's services are in any way non-competitive, then MLIN shall give Artest
written notice of such inadequacy and Artest shall have reasonable time to
correct the deficiency. If Artest shall fail to correct then MLIN can upon
written notice obtain services from another source.
Artest will agree to implement productivity enhancements, which will reduce test
costs to MLIN by [*] per year.
MLIN will agree to endeavor to use Artest as its primary subcontractor for sort,
final test and shipping and will grant to Artest first right of refusal for any
new products MLIN develops, provided Artest's costs are competitive and Artest
supports the tester platform required.
Micro Linear agrees to subcontract to Artest production sort and/or final test
volume shown in Exhibit E equal to a minimum of [*] of revenue to Artest. Micro
---------
Linear also agrees, although it cannot guarantee volume levels or product mix,
to subcontract to Arrest in the subsequent two (2) years all or most of its
production sort and/or test volume with Arrest having the right of first refusal
for all products, provided that Arrest costs and quality are competitive. (This
ensures that
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Such portions are marked with a "[*]" in place of the redacted
language. Omitted portions are filed separately with the Securities and
Exchange Commission.
Artest has the right to the maximum amount of MLIN revenue, at whatever business
level MLIN can achieve during the subsequent 2 years).
In the event that Artest is unable for any reason (other than force majeur) to
provide testing services to Micro Linear at the Leased Premises or other
locations as contemplated hereby (within the cost guidelines agreed to and
represented in Exhibit E), then Micro Linear shall be granted such access to the
---------
Test Equipment at mutually agreeable rates not in excess of prevailing market
rates to enable Micro Linear to have such testing services performed in a timely
manner.
Access to Teradyne, Sentry, LTX and TMT Equipment. Artest will agree to provide
access to its testing operations at the Leased Premises for MLIN product and
test engineers for test development and yield enhancement during the daytime
shift. Artest acknowledges that MLIN requires up to the hrs/month of the test
systems listed in this table:
Test System Hrs/month
----------- ---------
[*] [*]
Artest agrees to give MLIN the right to use these machines and the required
support hardware software up to these limits during the daytime shift in any
given month. MLIN will notify Artest when it doesn't need the time and will
release any unused machine time to Artest for its use. Conversely, Artest will
notify MLIN if it doesn't need the machine time beyond the minimum time listed
above and release to MLIN the right to use the machines beyond the agreed to
hours.
For the use of the machines as listed above and required handler/prober support
machines, MLIN will agree to pay Artest user fees of [*] per year payable in
equal monthly installments, beginning on the date of the execution of this
agreement. The user fee shall be payable on or before the third day of each
month.
Artest and MLIN will agree to cooperate to transfer to Artest any MLIN "right to
use" license on the above systems at the most reasonable allowed cost. Artest
and MLIN will identify the cost for such a transfer, if applicable, prior to the
signing of the Definitive Agreement and subject to Artest approval of such
terms. Artest and MLIN shall use their reasonable best efforts to minimize the
cost of this transfer but any costs associated with the transfer of the license
shall be born by Artest alone and MLIN shall have no obligation to assure the
transfer.
TMT RFX Test System. Artest will agree to provide additional capacity for TMT
RFX system for production testing for certain products MLIN has developed and
plans on developing, in the future. Artest will purchase sufficient TMT RFX test
systems and related interface hardware, satisfactory to MLIN, to be located at
the Leased Premises or another local site or Artest will make arrangements with
other external test subcontractors to acquire TMT RFX test systems and ensure
sufficient access as to meet the needs for MLIN production test. MLIN will
negotiate with TMT to allow Artest access to MLIN's favorable price and
scheduling if beneficial. MLIN will commit to [*]/hours of production testing
per month per tester for a minimum of 1 year.
If MLIN has a need for access to the additional TMT RFX test systems for product
and test engineers for test development and yield enhancement beyond the amount
identified above, then Artest will provide capacity for engineering during the
daytime shift. MLIN will identify the hours per month required for this
additional machine time and Artest agrees to give MLIN the
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Such portions are marked with a "[*]" in place of the redacted
language. Omitted portions are filed separately with the Securities and
Exchange Commission.
right to use the TMT RFX additional machines up to these limits during the
daytime shift in any given month. MLIN will agreed to notify Artest when it
doesn't need the minimum guaranteed time and will release any unused machine
time to Artest for its use. Conversely, Artest will notify MLIN if it doesn't
need the TMT RFX machines beyond the minimum time listed above and release to
MLIN the right to use the machines beyond the agreed to hours.
For the use of the additional TMT RFX test systems as listed above, MLIN agrees
to pay Artest user fee's of [*] per week per tester for 8hrs/day daytime
access to the system, if and as required for 1 year.
Relocation of TEST. Upon the expiration of the term of the sublease, Artest may
choose to relocate TEST at its own cost to a new facility that allows full
access by MLIN product and test engineering personnel. Notwithstanding the
foregoing, if Artest should consider such a move, Artest shall ensure the
continuous operation of TEST during the relocation with uninterrupted access by
MLIN employees. The new TEST Facilities shall be of the same quality and close
proximity to MLIN's product and test engineering personnel as are the current
TEST Facilities. Artest and MLIN shall use their best efforts to jointly seek
new space to allow for a coordinated move to the new facilities. All facility
items purchased by Artest will remain the property of Artest after the
expiration of the current lease and not part of Facility left behind for
landlord.
Assembly Support/Off-shore Test Capability. MLIN will transfer the
responsibility for assembly and off-shore test to Artest. In this capacity,
Artest will endeavor to establish relationships with key assembly subcontractors
for the purpose of securing both capacity and favorable pricing for MLIN
products. MLIN estimates that the assembly business opportunity for fiscal year
2000 will be approximately [*]. Artest may consider establishing off-shore sort
and/or test capability with selected subcontractors on certain products agreed
to by MLIN. MLIN will pay to Artest a management fee of [*] of the assembly
revenue for this transfer of responsibility.
Term of Services Contract. Unless otherwise specified, the term of the
Production Test Services part of the Agreement shall be for a minimum of three
(3) years from the date of the execution of this Agreement.
Termination and Renewal. At least 90 but not more than 180 days before the
expiration of this Agreement, the parties shall notify each other in writing
whether the Agreement will terminate if the parties do not provide such
notification, the Agreement will automatically renew for a period of one year at
prices to be agreed upon. Thereafter, the agreement will automatically renew
each year until the parties provide written notice of its termination.
Termination for Cause. If either party materially breaches a provision and fails
to cure such breach within the thirty (30) days after receiving written notice
from the other party, such other party shall have the right at its option to
terminate the Production Test Services portion of this Agreement. Upon
termination of the Production Test Services portion of this Agreement for cause,
the parties shall pay to each other any fees or rents due at the time of the
termination.
Bankruptcy. Should either party: (i) become insolvent, (ii) make an assignment
for the benefit of creditors; (iii) file or have filed against it a petition in
bankruptcy or reorganization; (iv) have
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Such portions are marked with a "[*]" in place of the redacted
language. Omitted portions are filed separately with the Securities and
Exchange Commission.
a receiver, manager, administrator, or administrative receiver appointed; or (v)
institute any proceedings for liquidation or winding up; then the other party
may, in addition to other rights and remedies it may have, terminate this
Agreement immediately by written notice.
Property Upon Termination. Upon expiration or termination of this Agreement,
both parties will deliver to the other all property of the other party that they
may have in their possession or control.
Acquisition of MLIN. In the event that MLIN is sold to or acquired by a third
party, the terms and conditions of this agreement shall be binding.
Acquisition of Artest. In the event that Artest is sold to or acquired by a
third party, the terms and conditions of this agreement shall be binding.
MISCELLANEOUS
Invoices. Unless otherwise provided in this Agreement, Artest and MLIN shall
invoice each other for fees for any Production Test Services provided pursuant
to this agreement. All invoices shall be due and payable when invoiced, and
shall be deemed overdue if they remain unpaid thirty (30) days after they become
payable. Overdue amounts shall accrue interest at the rate of two (2) percent
per month, or at the highest legal interest rate, if less.
Payments. All payments referred to in this agreement are net 30 days.
Confidential Information. During the term of this Agreement and subsequent
thereto, the receiving party will keep all Confidential Information of the other
party in confidence and will not, without prior written consent of the
disclosing party, publish, disclose or otherwise make available, directly or
indirectly, any item of Confidential Information to any person other than those
of the receiving party's employees, agents or contractors who need to know the
same in the performance of their duties for the receiving party.
Publicity. The parties agree that they shall not make any disclosure, by means
of the issuance of any reports, statements or releases or otherwise, pertaining
to the contents of this Agreement or the transactions contemplated hereby,
except that MLIN shall be permitted to make such disclosures as may be required
by federal and state securities laws or the rules and regulations of the Nasdaq
National Market.
Dispute Resolution. The parties shall attempt in good faith to resolve any
dispute arising out of this Agreement, including but not limited to any dispute
regarding the interpretation of or performance under said Agreement, promptly by
negotiations. If these negotiations should fail, the parties shall resolve any
dispute by submitting it to binding arbitration in San Jose, California under
the rules of the American Arbitration. Notwithstanding the foregoing, either
party shall have the right to seek preliminary injunctive relief at any time.
The prevailing party shall have all reasonable legal fees reimbursed.
Governing Law. This Agreement shall be governed in all respects by the laws of
the United States of America and the State of California. The parties agree that
the United Nations
Convention on Contracts for the International Sale of goods is specifically
excluded from application to this Agreement.
Notices. Any notices required or permitted hereunder will be given to the
appropriate party at the address specified below or at such other address as the
party may specify in writing. Such notice shall be deemed given upon personal
delivery to the appropriate address or, if sent by certified or registered mail,
three (3) days after the date of mailing.
As to: Micro Linear Corporation:
Xxxxx Xxxxxxxx
Micro Linear Corporation
0000 Xxxxxxxxx Xx.
Xxx Xxxx, XX 00000
Artest Corporation:
Xxx Xxx
Artest Corporation
000 Xxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Counterparts. This Agreement may be signed in counterparts, each of which shall
be deemed an original, and all of which shall together constitute one and the
same Agreement.
Complete Understanding and Modification. This Agreement and the Exhibits
attached hereto constitute the full and complete understanding and agreement of
the parties relating to the subject matter hereof and supersedes all prior
understandings and agreements relating to such subject matter. Any waiver,
modification, or amendment of any provision of this Agreement shall be effective
only if in writing and signed by each of the parties hereto.
Waiver. The failure of either party to insist upon strict compliance with any of
the terms, covenants or conditions of this Agreement by the other party shall
not be deemed a waiver of that term, covenant or condition, nor shall any waiver
or relinquishment of any right or power at any one time be deemed a waiver or
relinquishment of that right or power for all or any other time.
Force Majeure. The parties shall not be liable for any delay or failure to
perform, in whole or in part, caused by the occurrence of any contingency beyond
its reasonable control, including but not limited to: war, sabotage,
insurrection, rebellion, riot or other act of civil disobedience, act of public
enemy, failure or delay in transportation, act of any government or any agency
or subdivision thereof, judicial action, labor disputes, shortages of materials,
fire, accident, explosion, epidemic, quarantine restrictions, storm, flood or
earthquake.
In Witness Whereof, the duly authorized representative of the parties has
executed this Agreement as of the effective Date.
MICRO LINEAR CORPORATION ARTEST CORPORATION
Signed: /s/ Xxxxx X. Xxxxxxxx Signed: /s/ Xxx Xxx
Printed Name: Xxxxx Xxxxxxxx Printed Name: Xxx Xxx
Title: President & CEO Title: President & CEO
Date: 4/28/00 Date: 04-28-2000
Exhibit E to Operating Agreement
[*]
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Such portions are marked with a "[*]" in place of the redacted
language. Omitted portions are filed separately with the Securities and
Exchange Commission.
Exhibit F to Operating Agreement
Exhibit F
Retention Policy:
Retention bonus of [*] week's pay for every [*] months of continued employment
up to a maximum of [*] months after the acquisition.
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Such portions are marked with a "[*]" in place of the redacted
language. Omitted portions are filed separately with the Securities and
Exchange Commission.
Exhibit G to Operating Agreement
ARTEST/MLIN
-----------
EMPLOYEE LISTING
BY DEPARTMENT
27-Apr-00
--------------------------------------------------------------------------------
Dept Name Title DOH Salary
--------------------------------------------------------------------------------
4120 [*] [*] [*] [*] [*] 1
4310 [*] [*] [*] [*] [*] 4 10%
4310 [*] [*] [*] [*] [*] 1
4310 [*] [*] [*] [*] [*] 2 10%
4310 [*] [*] [*] [*] [*] 1 10%
4310 [*] [*] [*] [*] [*] 4
4310 [*] [*] [*] [*] [*] 1
4310 [*] [*] [*] [*] [*] 2 10% 10%
4310 [*] [*] [*] [*] [*] 3 15%
4310 [*] [*] [*] [*] [*] 1
4310 [*] [*] [*] [*] [*] 3 15%
4310 [*] [*] [*] [*] [*] 1
4310 [*] [*] [*] [*] [*] 3 15%
4310 [*] [*] [*] [*] [*] 2 10%
4310 [*] [*] [*] [*] [*] 3 15% 10%
4310 [*] [*] [*] [*] [*] 2 10% 10%
4310 [*] [*] [*] [*] [*] 4 10% 10%
4310 [*] [*] [*] [*] [*] 2 10%
4310 [*] [*] [*] [*] [*] 4 10%
4310 [*] [*] [*] [*] [*] 4 10%
4310 [*] [*] [*] [*] [*] 2 10%
4310 [*] [*] [*] [*] [*] 3 15%
4310 [*] [*] [*] [*] [*] 5 15%
4310 [*] [*] [*] [*] [*] 4 10% 10%
4310 [*] [*] [*] [*] [*] 3 15% 10%
4310 [*] [*] [*] [*] [*] 3 15%
4310 [*] [*] [*] [*] [*] 1
Temporary Employees
-------------------
4310 [*] [*] [*] [*] [*] 5 15%
4310 [*] [*] [*] [*] [*] 3 15%
4310 [*] [*] [*] [*] [*] 5 15% 10%
4310 [*] [*] [*] [*] [*] 5 15%
4310 [*] [*] [*] [*] [*] 2 10%
4310 [*] [*] [*] [*] [*]
4310 [*] [*] [*] [*] [*] 1
4310 [*] [*] [*] [*] [*] 5 15%
4310 [*] [*] [*] [*] [*] 1
4310 [*] [*] [*] [*] [*] 5 15%
4310 [*] [*] [*] [*] [*] 5 15%
4310 [*] [*] [*] [*] [*] 2 10%
4310 [*] [*] [*] [*] [*] 4 10%
4310 [*] [*] [*] [*] [*] 4 10%
4310 [*] [*] [*] [*] [*] 5 15%
4310 [*] [*] [*] [*] [*] 4 10%
4360 [*] [*] [*] [*] [*] 1
7040 [*] [*] [*] [*] [*] 1
7040 [*] [*] [*] [*] [*] 1
7040 [*] [*] [*] [*] [*] 1
7040 [*] [*] [*] [*] [*] 1
7040 [*] [*] [*] [*] [*] 1
7500 [*] [*] [*] [*] [*] 1
7500 [*] [*] [*] [*] [*] 1
8050 [*] [*] [*] [*] [*] 3 15%
8050 [*] [*] [*] [*] [*] 1
8050 [*] [*] [*] [*] [*] 3 15%
8050 [*] [*] [*] [*] [*] 2 10%
8050 [*] [*] [*] [*] [*] 3 15%
8050 [*] [*] [*] [*] [*] 2 15%
8050 [*] [*] [*] [*] [*] 4
8050 [*] [*] [*] [*] [*] 2 10%
8050 [*] [*] [*] [*] [*] 3 15%
8050 [*] [*] [*] [*] [*] 2 10%
8050 [*] [*] [*] [*] [*] 1
8050 [*] [*] [*] [*] [*] 3 15%
8050 [*] [*] [*] [*] [*] 3 15%
8050 [*] [*] [*] [*] [*] 3 15%
8050 [*] [*] [*] [*] [*] 1
[*]
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Such portions are marked with a "[*]" in place of the redacted
language. Omitted portions are filed separately with the Securities and
Exchange Commission.
Schedule to Section 3.2 of Operating Agreement
[*]
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Such portions are marked with a "[*]" in place of the redacted
language. Omitted portions are filed separately with the Securities and
Exchange Commission.
Key Points of Understanding 04/27/2000
---------------------------
Offices. Two enclosed offices are to be made available in the NW side of Bldg 1.
MLIN and Artest may consider replacing these with other offices in the rear of
the building at a later date.
Signage. MLIN and Artest will agree upon a location for Artest signage and
implement. Artest will pay for this cost.
Telephones. Establish phone lines with Pac Xxxx for Artest use. Artest will be
billed directly. Review over next 90 days to determine any better alternate
solutions.
Email. Establish email access for Artest employees over the existing ML internet
connection. Specific PCs will be set up to accomplish this. ML MIS will assist
Artest employees to set this up and provide instruction. Review over the next 90
days to determine any better alternate solutions.
Shipping/Receiving. Artest will maintain the shipping/receiving area in Bldg 2.
They will provide all shipping materials and receiving services for MLIN and
Artest.
Stores. Artest will maintain `stores' in support of the production test services
in Bldg 2. MLIN will assume responsibility for their stores within 60 days from
the signing of the agreements.
Mail Delivery. Artest will support all internal mail delivery for a maximum of
60 days, whereupon, MLIN will assume responsibility for all MLIN mail.
Smocks. Artest will assume all responsibility for smocks used by all personnel
in Bldg 1. They will xxxx MLIN separately for engineering and other MLIN support
personnel requirements.
Badges. MLIN will provide badges with the Artest logo. Artest will reimburse
MLIN for all badges.
Network. MLIN will provide access to the required databases within the ML
internal network for all manufacturing needs. Over the next 90 days, these needs
will be reviewed and any changes to the network access will be determined at
that time. Artest will continue to sent the test data to the network in the same
manner with no changes, unless mutually agreed upon.
Contracts. Artest will be introduced to all MLIN subcontractors/major suppliers.
They will negotiate with the said subcontractors/suppliers to assume
responsibility for current contracts and/or future needs. Artest may choose to
renegotiate these contracts to enable improvements in pricing and service, where
possible and beneficial to MLIN.
MLIN Long Range Demand Forecast. MLIN will provide a 3 month forecast for
factory demand during the last week of each financial quarter. MLIN will also
provide a 6 month outlook for capacity planning, each month, to cover any
significant changes in forecast demand, to enable Artest to adjust their
capability to respond.
MLIN Weekly Demand Forecast. MLIN will provide a weekly demand for sort & test
and a daily demand for assembly. Performance to demand will be reviewed weekly.
Daily Production Meeting. Artest and MLIN will discuss all production and
engineering issues and test equipment availability at a meeting held daily at 8
a.m.
Samples Meeting. Artest and MLIN will review sample demand, production
performance, and MSD (delivery to manufacturing schedule date) performance every
Wednesday at 9:30 a.m.
Engineering Requirements. MLIN will provide an engineering time demand forecast
once a month. This will be updated daily at the 8:00 a.m. production meeting to
reflect real time needs and changes.
Production documentation. All production documentation requirements and
procedures are to remain the same unless and until requested changes are
mutually agreed upon.
Samples. Samples testing for engineering characterization, QA&R reliability and
customer returns, Customer Service, etc. will be charged to MLIN based on
insertions/cpu time and index time for each product.
Rescreens. All rescreens of material which are required as a result of test
program and/or hardware changes will be charged as normal production.
Bake and Pack. Artest will have responsibility for all supplies and equipment
and charge MLIN at the rate of [*]/unit.
Lead Scan. Lead scan is part of the cost of insuring quality of MLIN products.
There will be no charge for SOIC parts going into tape & reel. The cost for all
other devices will be [*]/device.
Tape & Reel. Artest will have responsibility for all supplies and equipment and
charge MLIN at the rate shown in the attached table.
Package Type Internal External
------------ -------- --------
8-16L(n)SOIC [*] [*]
16-28L(w)SOIC [*] [*]
PLCC [*] [*]
32LTQFP [*] [*]
44LTQFP [*] [*]
64LTQFP [*] [*]
8LTSSOP [*] [*]
20LTSSOP [*] [*]
28LSSOP [*] [*]
Performance to Schedule. All issues or updates regarding Artest performance to
schedule for any MLIN products should be communicated to the MLIN Production
Control Supervisor as quickly as possible.
Load Boards/Probe Cards/Interface Hardware. MLIN will provide the initial set of
hardware for production at [*] to Artest. Additional sets of hardware needed
for capacity will be supplied by MLIN and charged at [*] to Artest. All
additional sets of hardware will have to be agreed upon by both parties before
work can begin. All repair and modifications of hardware will be provided by
Artest at [*] to MLIN. If limited MLIN engineering support is needed to repair
the hardware, MLIN will support this effort at [*]. If the repair or
modification is substantial or excessive, MLIN will charge [*] to Artest.
Freight Charges. Artest will xxxx MLIN [*].
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Such portions are marked with a "[*]" in place of the redacted
language. Omitted portions are filed separately with the Securities and
Exchange Commission.
Backlap. Artest will coordinate all backlap requirements and will xxxx MLIN
[*].
Remarking. Artest will coordinate all remarking requirements and will xxxx
MLIN [*].
Invoicing. Artest to invoice MLIN after sort, assembly and final test. [*].
Payments. All payments referred to in this agreement are net 30 days.
New Product Die Cast Formulas. Costs for new products and changes for
existing products are calculated based on the following formulas and attached
table for the first year:
Sort cost/die = [*]
Final test cost = [*]
Assembly cost = [*]
Backlap cost = [*]
It is expected that there will be cost improvements in subsequent years that
will be reflected in the product cost to Micro Linear.
Table of sort/test costs/sec be tester platform.
Tester WS $/sec FT $/sec
----- -------- --------
[*] [*] [*]
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Such portions are marked with a "[*]" in place of the redacted
language. Omitted portions are filed separately with the Securities and
Exchange Commission.
EXHIBIT C
STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE-GROSS
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. Basic Provisions ("Basic Provisions").
1.1 Parties: This Lease ("Lease"), dated for reference purposes only,
May 01, 2000 is made by and between Micro Linear Corporation, a Delaware
corporation, ("Lessor") and Artest Corporation, a California corporation
("Lessee"), (collectively the "Parties," or individually a "Party").
1.2 (a) Premises: That certain portion of the Building, including all
improvements therein or to be provided by Lessor under the terms of this Lease,
commonly known by the street address of 2050 and 0000 Xxxxxxxxx Xxxxx, located
in the City of San Xxxx, County of Santa Xxxxx, State of California, with zip
code 95131, as outlined on Exhibit A attached hereto ("Premises"). The
"Building" is that certain building containing the Premises and generally
described as (describe briefly the nature of the Building): Two, one-story
buildings located next door to one another, each consisting of approximately
47,000 square feet.
In addition to Lessee's rights to use and occupy the Premises as hereinafter
specified, Lessee shall have non-exclusive rights to the Common Areas (as
defined in Paragraph 2.7 below) as hereinafter specified, but shall not have any
rights to the roof, exterior walls or utility raceways of the Building or to any
other buildings in the Industrial Center. The Premises, the Building, the
Common Areas, the land upon which they are located, along with all other
buildings and improvements thereon, are herein collectively referred to as the
"Industrial Center." (Also see Paragraph 2.)
1.2 (b) Parking: 18.23% of the unreserved vehicle parking spaces
("Unreserved Parking Spaces") located in the Industrial Center. (Also see
Paragraph 2.6.)
1.3 Term: 3 years and 0 months ("Original Term") commencing See Addendum
("Commencement Date") and ending on the day before the 3rd Anniversary of the
Commencement Date ("Expiration Date"). (Also see Paragraph-3).
1.4 Early Possession: N/A ("Early Possession Date"). (Also see
Paragraphs 3.2 and 3.3.)
1.5 Base Rent: $ 25,024 per month ("Base Rent"), payable on the 1st day
of each month commencing on the Commencement Date (Also see Paragraph 4.)
[ ] If this box is checked, this Lease provides for the Base Rent to be
adjusted per Addendum ___, attached hereto.
1.6 (a) Base Rent Paid Upon Execution: $ N/A as Base Rent for the period
N/A.
1.6 (b) Lessee's Share of Common Area Operating Expenses: N/A percent
( .%) ("Lessee's Share") as determined by [ ] prorata square footage of the
Promises as compared to the total square footage of the Building or [ ] other
criteria as described in Addendum _____.
1.7 Security Deposit: $ N/A ("Security Deposit"). (Also see Paragraph
5.)
1.8 Permitted Use: Semiconductor testing and manufacturing in the same
manner and using the same equipment as Lessor immediately prior to the
Commencement Date ("Permitted Use") (Also see Paragraph 6.)
1.9 Insuring Party: Lessor is the "Insuring Party." (Also see Paragraph
8.)
1.10 Addenda and Exhibits: Attached hereto is an Addendum or Addenda
consisting of Paragraphs 1 through 7 and Exhibits A, all of which constitute a
part of this Lease.
2. Premises, Parking and Common Areas.
2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases
from Lessor, the Premises, for the term, at the rental, and upon all of the
terms, covenants and conditions set forth in this Lease. Unless otherwise
provided herein, any statement of square footage set forth in this Lease, or
that may have been used in calculating rental and/or Common Area Operating
Expenses, is an approximation which Lessor and Lessee agree is reasonable and
the rental and Lessee's Share (as defined in Paragraph 1.6(b)) based thereon is
not subject to revision whether or not the actual square footage is more or
less.
2.2 [deleted]
2.3 [deleted]
2.4 Acceptance of Premises. Lessee hereby acknowledges: (a) that it has
been advised by Lessor to satisfy itself with respect to the condition of the
Premises (including but not limited to the electrical and fire sprinkler
systems, security, environmental aspects, seismic and earthquake requirements,
and compliance with the Americans with Disabilities Act and applicable zoning,
municipal, county, state and federal laws, ordinances and regulations and any
covenants or restrictions of record (collectively, "Applicable Laws") and the
present and future suitability of the Premises for Lessee's intended use; (b)
that Lessee has made such investigation as it deems necessary with reference to
such matters, is satisfied with reference thereto, and assumes all
responsibility therefore as the same relate to Lessee's occupancy of the
Promises and/or the terms of this Lease; and (c) that neither Lessor, nor any of
Lessor's agents, has made any oral or written representations or warranties with
respect to said matters other than as set forth in this Lease.
Initials:________
________
2.5 Lessee as Prior Owner/Occupant. The warranties made by Lessor in this
Paragraph 2 shall be of no force or effect if immediately prior to the date set
forth in Paragraph 1.1 Lessee was the owner or occupant of the Premises. In such
event, Lessee shall, at Lessee's sole cost and expense, correct any non-
compliance of the Premises with said warranties.
2.6 Vehicle Parking. Lessee shall be entitled to use the number of
Unreserved Parking Spaces and Reserved Parking Spaces specified in Paragraph
1.2(b) on those portions of the Common Areas designated from time to time by
Lessor for parking. Lessee shall not use more parking spaces than said number.
Said parking spaces shall be used for parking by vehicles no larger than full-
size passenger automobiles or pick-up trucks, herein called "Permitted Size
Vehicles." Vehicles other than Permitted Size Vehicles shall be parked and
loaded or unloaded as directed by Lessor in the Rules and Regulations (as
defined in Paragraph 40) issued by Lessor. (Also see Paragraph 2.9.)
(a) Lessee shall not permit or allow any vehicles that belong to or
are controlled by Lessee or Lessee's employees, suppliers, shippers, customers,
contractors or invitees to be loaded, unloaded, or parked in areas other than
those designated by Lessor for such activities.
(b) If Lessee permits or allows any of the prohibited activities
described in this Paragraph 2.6, then Lessor shall have the right, without
notice, in addition to such other rights and remedies that it may have, to
remove or tow away the vehicle involved and charge the cost to Lessee, which
cost shall be immediately payable upon demand by Lessor.
(c) Lessor shall at the Commencement Date of this Lease provide the
parking facilities required by Applicable Law.
2.7 Common Areas-Definition. The term "Common Areas" is defined as all
areas and facilities outside the Premises and within the exterior boundary line
of the Industrial Center and interior utility raceways within the Premises that
are provided and designated by the Lessor from time to time for the general now
exclusive use of Lessor, Lessee and other lessees of the Industrial Center and
their respective employees, suppliers, shippers, customers, contractors and
invitees, including parking areas, loading and unloading areas, trash areas,
roadways, sidewalks, walkways, parkways, driveways and landscaped areas.
2.8 Common Areas-Lessee's Rights. Lessor hereby grants to Lessee, for the
benefit of Lessee and its employees, suppliers, shippers, contractors, customers
and invitees, during the term of this Lease, the non-exclusive right to use, in
common with others entitled to such use, the Common Areas as they exist from
time to time, subject to any rights, powers, and privileges reserved by Lessor
under the terms hereof or under the terms of any rules and regulations or
restrictions governing the use of the Industrial Center. Under no circumstances
shall the right herein granted to use the Common Areas be deemed to include the
right to store any property, temporarily or permanently, in the Common Areas.
Any such storage shall be permitted only by the prior written consent of Lessor
or Lessor's designated agent, which consent may be revoked at any time. In the
event that any unauthorized storage shall occur then Lessor shall have the
right, without notice, in addition to such other rights and remedies that it may
have, to remove the property and charge the cost to Lessee, which cost shall be
immediately payable upon demand by Lessor.
2.9 Common Areas-Rules and Regulations. Lessor or such other person(s) as
Lessor may appoint shall have the exclusive control and management of the Common
Areas and shall have the right, from time to time, to establish, modify, amend
and enforce reasonable Rules and Regulations with respect thereto in accordance
with Paragraph 40. Lessee agrees to abide by and conform to all such Rules and
Regulations, and to cause its employees suppliers, shippers, customers,
contractors and invitees to so abide and conform. Lessor shall not be
responsible to Lessee for the non-compliance with said rules and regulations by
other lessees of the Industrial Center.
2.10 Common Areas-Changes. Lessor shall have the right, in Lessor's sole
discretion, from time to time:
(a) To make changes to the Common Areas, including, without
limitation, changes in the location, size, shape and number of driveways,
entrances, parking spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, landscaped areas, walkways and utility raceways;
(b) To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains available;
(c) To designate other land outside the boundaries of the
Industrial Center to be a part of the Common Areas;
(d) To add additional buildings and improvements to the Common
Areas;
(e) To use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Industrial Center, or any portion
thereof; and
(f) To do and perform such other acts and make such other changes
in, to or with respect to the Common Areas and Industrial Center as Lessor may,
in the exercise of sound business judgment, deem to be appropriate.
3. Term.
3.1 Term. The Commencement Date, Expiration Date and Original Term of this
Lease are as specified in Paragraph 1.3.
Initials:_______
_______
-2-
3.2 Early Possession. If an Early Possession Date is specified in
Paragraph 1.4 and if Lessee totally or partially occupies the Premises after the
Early Possession Date but prior to the Commencement Date, the obligation to pay
Base Rent shall be abated for the period of such early occupancy. All other
terms of this Lease, however, (including but not limited to the obligations to
pay Lessee's Share of Common Area Operating Expenses and to carry the insurance
required by Paragraph 8) shall be in effect during such period. Any such early
possession shall not affect nor advance the Expiration Date of the Original
Term.
3.3 Delay In Possession. If for any reason Lessor cannot deliver
possession of the Premises to Lessee by the Early Possession Date, if one is
specified in Paragraph 1.4, or if no Early Possession Date is specified, by the
Commencement Date, Lessor shall not be subject to any liability therefor, nor
shall such failure affect the validity of this Lease, or the obligations of
Lessee hereunder, or extend the term hereof, but in such case, Lessee shall not,
except as otherwise provided herein, be obligated to pay rent or perform any
other obligation of Lessee under the terms of this Lease until Lessor delivers
possession of the Premises to Lessee. If possession of the Premises is not
delivered to Lessee within sixty (60) days after the Commencement Date, Lessee
may, at its option, by notice in writing to Lessor within ten (10) days after
the end of said sixty (60) day period, cancel this Lease, in which event the
parties shall be discharged from all obligations hereunder; provided further,
however, that if such written notice of Lessee is not received by Lessor within
said ten (10) day period, Lessee's right to cancel this Lease hereunder shall
terminate and be of no further force or effect. Except as may be otherwise
provided, and regardless of when the Original Term actually commences, if
possession is not tendered to Lessee when required by this Lease and Lessee does
not terminate this Lease, as aforesaid, the period free of the obligation to pay
Base Rent, if any, that Lessee would otherwise have enjoyed shall run from the
date of delivery of possession and continue for a period equal to the period
during which the Lessee would have otherwise enjoyed under the terms hereof, but
minus any days of delay caused by the acts, changes or omissions of Lessee.
4. Rent.
4.1 Base Rent. Lessee shall pay Base Rent and other rent or charges, as
the same may be adjusted from time to time, to Lessor in lawful money of the
United States, without offset or deduction, on or before the day on which it is
due under the terms of this Lease. Base Rent and ail other rent and charges for
any period during the term hereof which is for less than one full month shall be
prorated based upon the actual number of days of the month involved. Payment of
Base Rent and other charges shall be made to Lessor at its address stated herein
or to such other persons or at such other addresses as Lessor may from time to
time designate in writing to Lessee.
4.2 [deleted]
5. Security Deposit. Lessee shall deposit with Lessor upon Lessee's execution
hereof the Security Deposit set forth in Paragraph 1.7 as security for Lessee's
faithful performance of Lessee's obligations under this Lease. If Lessee fails
to pay Base Rent or other rent or charges due hereunder, or otherwise Defaults
under this Lease (as defined in Paragraph 13.1), Lessor may use, apply or retain
all or any portion of said Security Deposit for the payment of any amount due
Lessor or to reimburse or compensate Lessor for any liability, cost, expense,
loss or damage (including attorneys' fees) which Lessor may suffer or incur by
reason thereof. It Lessor uses or applies all or any portion of said Security
Deposit, Lessee shall within ten (10) days after written request therefore
deposit monies with Lessor sufficient to restore said Security Deposit to the
tuft amount required by this Lease. Any time the Base Rent increases during the
term of this Lease, Lessee shall, upon written request from Lessor, deposit
additional monies with Lessor as an addition to the Security Deposit so that the
total amount of the Security Deposit shall at all times bear the same proportion
to the then current Base Rent as the initial Security Deposit bears to the
initial Base Rent set forth in Paragraph 1.5. Lessor shall not be required to
keep all or any part of the Security Deposit separate from its general accounts.
Lessor shall, at the expiration or earlier termination of the term hereof and
after Lessee has vacated the Premises, return to Lessee (or, at Lessor's option,
to the last assignee, it any, of Lessee's interest herein), that portion of the
Security Deposit not used or applied by Lessor. Unless otherwise expressly
agreed in writing by Lessor, no part of the Security Deposit shall be considered
to be held in trust, to bear interest or other increment for its use, or to be
prepayment for any monies to be paid by Lessee under this Lease.
6. Use.
6.1 Permitted Use.
(a) Lessee shall use and occupy the Premises only for the Permitted
Use set forth in Paragraph 1.8, and for no other purpose. Lessee shall not use
or permit the use of the Promises in a manner that is unlawful, creates waste or
a nuisance, or that disturbs owners and/or occupants of, or causes damage to the
Premises or neighboring premises or properties.
(b) [deleted]
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term "Hazardous Substance"
as used in this Lease shall mean any product, substance, chemical, material or
waste whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or effect, either by
itself or in combination with other materials expected to be on the Premises, is
either: (i) potentially injurious to the public health, safety or welfare, the
environment, or the Promises; (ii) regulated or monitored by any governmental
authority; or (iii) a basis for potential liability of Lessor to any
governmental agency or third party under any applicable statute or common law
theory. Hazardous Substance shall include, but not be limited to, hydrocarbons,
petroleum, gasoline, crude oil or any products or by-products thereof. Lessee
shall not engage in any activity in or about the Premises which constitutes a
Reportable Use (as hereinafter defined) of Hazardous Substances without the
express prior written consent of Lessor and compliance in a
Initials:________
________
-3-
timely manner (at Lessee's sole cost and expense) with all Applicable
Requirements (as defined in Paragraph 6.3). "Reportable Use" shall mean (i) the
installation or use of any above or below ground storage tank, (ii) the
generation, possession, storage, use, transportation, or disposal of a Hazardous
Substance that requires a permit from, or with respect to which a report,
notice, registration or business plan is required to be tiled with, any
governmental authority, and (iii) the presence in, on or about the Premises of a
Hazardous Substance with respect to which any Applicable Laws require that a
notice be given to persons entering or occupying the Premises or neighboring
properties. Notwithstanding the foregoing, Lessee may, without Lessor's prior
consent, but upon notice to Lessor and in compliance with all Applicable
Requirements, use any ordinary and customary materials reasonably required to be
used by Lessee in the normal course of the Permitted Use, so long as such use is
not a Reportable Use and does not expose the Premises or neighboring properties
to any meaningful risk of contamination or damage or expose Lessor to any
liability therefor. In addition, Lessor may (but without any obligation to do
so) condition its consent to any Reportable Use of any Hazardous Substance by
Lessee upon Lessee's giving Lessor such additional assurances as Lessor, in its
reasonable discretion, deems necessary to protect itself, the public, the
Premises and the environment against damage, contamination or injury and/or
liability therefor, including but not limited to the installation (and, at
Lessor's option, removal on or before Lease expiration or earlier termination)
of reasonably necessary protective modifications to the Premises (such as
concrete encasements) and/or the deposit of an additional Security Deposit under
Paragraph 5 hereof.
(b) Duty to Inform Lessor. If Lessee knows, or has reasonable cause
to believe, that a Hazardous Substance has come to be located in, on, under or
about the Premises or the Building, other than as previously consented to by
Lessor, Lessee shall immediately give Lessor written notice thereof, together
with a copy of any statement, report, notice, registration, application, permit,
business plan, license, claim, action, or proceeding given to, or received from,
any govern-mental authority or private party concerning the presence, spill,
release, discharge of, or exposure to, such Hazardous Substance, including but
not limited to all such documents as may be involved in any Reportable Use
involving the Premises. Lessee shall not cause or permit any Hazardous Substance
to be spilled or released in, on, under or about the Premises (including,
without limitation, through the plumbing or sanitary sewer system).
(c) Indemnification. Lessee shall indemnify, protect, defend and
hold Lessor, its agents, employees, lenders and ground lessor, if any, and the
Premises, harmless from and against any and all damages, liabilities, judgments,
costs, claims, liens, expenses, penalties, loss of permits and attorneys' and
consultants' fees arising out of or involving any Hazardous Substance brought
onto the Premises by or for Lessee or by anyone under Lessee's control. Lessee's
obligations under this Paragraph 6.2(c) shall include, but not be limited to,
the effects of any contamination or injury to person, property or the
environment created or suffered by Lessee, and the cost of investigation
(including consultants' and attorneys' fees and testing), removal, remediation,
restoration and/or abatement thereof, or of any contamination therein involved,
and shall survive the expiration or earlier termination of this Lease. No
termination, cancellation or release agreement entered into by Lessor and Lessee
shall release Lessee from its obligations under this Lease with respect to
Hazardous Substances, unless specifically so agreed by Lessor in writing at the
time of such agreement.
6.3 Lessee's Compliance with Requirements. Lessee shall, at Lessee's sole
cost and expense, fully, diligently and in a timely manner, comply with all
"Applicable Requirements," which term is used in this Lease to mean all laws,
rules, regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, the requirements of any applicable fire
insurance underwriter or rating bureau, and the recommendations of Lessor's
engineers and/or consultants, relating in any manner to the Premises (including
but not limited to matters pertaining to (i) industrial hygiene, (ii)
environmental conditions on, in, under or about the Premises, including soil and
groundwater conditions, and (iii) the use, generation, manufacture, production,
installation, maintenance, removal, transportation, storage, spill, or release
of any Hazardous Substance), now in effect or which may hereafter come into
effect. Lessee shall, within five (5) days after receipt of Lessor's written
request, provide Lessor with copies of all documents and information, including
but not limited to permits, registrations, manifests, applications, reports and
certificates, evidencing Lessee's compliance with any Applicable Requirements
specified by Lessor, and shall immediately upon receipt, notify Lessor in
writing (with copies of any documents involved) of any threatened or actual
claim, notice, citation, warning, complaint or report pertaining to or involving
failure by Lessee or the Promises to comply with any Applicable Requirements.
6.4 Inspection; Compliance with Law. Lessor, Lessor's agents, employees,
and designated representatives, and the holders of any mortgages, deeds of trust
or ground leases on the Premises ("Lenders") shall have the right to enter the
Premises at any time in the case of an emergency, and otherwise at reasonable
times, for the purpose of inspecting the condition of the Premises and for
verifying compliance by Lessee with this Lease and all Applicable Requirements
(as defined in Paragraph 6.3), and Lessor shall be entitled to employ experts
and/or consultants in connection therewith to advise Lessor with respect to
Lessee's activities, including but not limited to Lessee's installation,
operation, use, monitoring, maintenance, or removal of any Hazardous Substance
on or from the Premises. The costs and expenses of any such inspections shall be
paid by the party requesting same, unless a Default or Breach of this Lease by
Lessee or a violation of Applicable Requirements or a contamination, caused or
materially contributed to by Lessee, is found to exist or to be imminent, or
unless the Inspection is requested or ordered by a governmental authority as the
result of any such existing or imminent violation or contamination. In such
case, Lessee shall upon request reimburse Lessor or Lessor's Lender, as the case
may be, for the costs and expenses of such inspections.
7. Maintenance, Repairs, Utility Installations, Trade Fixtures and
Alterations.
7.1 Lessee's Obligations.
(a) Subject to the provisions of Paragraphs 2.2 (Condition), 2.3
(Compliance with Covenants, Restrictions and Building Code), 7.2 (Lessor's
Obligations), 9 (Damage or Destruction), and 14 (Condemnation), Lessee shall, at
Lessee's sole cost and expense and at all times, keep the Premises and every
part thereof in good order, condition and repair (whether or not such portion of
the Premises requiring repair, or the means of repairing the same, are
reasonably or readily accessible to Lessee, and whether or not the need for such
repairs occurs as a result of Lessee's
Initials:_______
_______
-4-
use, any prior use, the elements or the age of such portion of the Premises),
including, without limiting the generality of the foregoing, all equipment or
facilities specifically serving the Premises, such as plumbing, heating, air
conditioning, ventilating, electrical, lighting facilities, boilers, fired or
unfired pressure vessels, fire hose connections if within the Premises,
fixtures, interior walls, interior surfaces of exterior walls, ceilings, floors,
windows, doors, plate glass, and skylights, but excluding any items which are
the responsibility of Lessor pursuant to Paragraph 7.2 below. Lessee, in keeping
the Promises in good order, condition and repair, shall exercise and perform
good maintenance practices, Lessee's obligations shall include restorations,
replacements or renewals when necessary to keep the Promises and all
improvements thereon or a part thereof in good order, condition and state of
repair.
(b) [deleted]
(c) If Lessee fails to perform Lessee's obligations under this
Paragraph 7.1, Lessor may enter upon the Premises after ten (10) days' prior
written notice to Lessee (except in the case of an emergency, in which case no
notice shall be required), perform such obligations on Lessee's behalf, and put
the Premises in good order, condition and repair, in accordance with Paragraph
13.2 below.
7.2 Lessor's Obligations. Subject to the provisions of Paragraphs 2.2
(Condition), 2.3 (Compliance with Covenants, Restrictions and Building Code),
4.2 (Common Area Operating Expenses), 6 (Use), 7.1 (Lessee's Obligations), 9
(Damage or Destruction) and 14 (Condemnation), Lessor, subject to reimbursement
pursuant to Paragraph 4.2, shall keep in good order, condition and repair the
foundations, exterior walls, structural condition of interior bearing walls,
exterior roof, fire sprinkler and/or standpipe and hose (it located in the
Common Areas) or other automatic fire extinguishing system including fire alarm
and/or smoke detection systems and equipment, fire hydrants, parking lots,
walkways, parkways, driveways, landscaping, fences, signs and utility systems
serving the Common Areas and all pans thereof, as well as providing the services
for which there is a Common Area Operating Expense pursuant to Paragraph 4.2.
Lessor shall not be obligated to paint the exterior or interior surfaces of
exterior walls nor shall Lessor be obligated to maintain, repair or replace
windows, doors or plate glass of the Premises. Lessee expressly waives the
benefit of any statute now or hereafter in effect which would otherwise afford
Lessee the right to make repairs at Lessor's expense or to terminate this Lease
because of Lessor's failure to keep the Building, Industrial Center or Common
Areas in good order, condition and repair.
7.3 Utility Installations, Trade Fixtures, Alterations.
(a) Definitions; Consent Required. The term "Utility Installations"
is used in this Lease to refer to all air lines, power panels, electrical
distribution, security, fire protection systems, communications systems,
lighting fixtures, heating, ventilating and air conditioning equipment,
plumbing, and fencing in, on or about the Premises. The term "Trade Fixtures"
shall mean Lessee's machinery and equipment which can be removed without doing
material damage to the Premises. The term "Alterations" shall mean any
modification of the improvements on the Premises which are provided by Lessor
under the terms of this Lease other than Utility installations or Trade
Fixtures. "Lessee-Owned Alterations and/or Utility Installations" are defined as
Alterations and/or Utility Installations made by Lessee that are not yet owned
by Lessor pursuant to Paragraph 7.4(a). Lessee shall not make nor cause to be
made any Alterations and/or Utility Installations in, on, under or about the
Premises without Lessor's prior written consent. Lessee may, however, make non-
structural Utility Installations to the interior of the Premises (excluding the
roof) without Lessor's consent but upon notice to Lessor, so long as they are
not visible from the outside of the Premises, do not involve puncturing,
relocating or removing the root or any existing walls, or changing or
interfering with the fire sprinkler or fire detection systems and the cumulative
cost thereof during the term of this Lease as extended does not exceed
$2,500.00.
(b) Consent. Any Alterations or Utility Installations that Lessee
shall desire to make and which require the consent of the Lessor shall be
presented to Lessor in written form with detailed plans. All consents given by
Lessor, whether by virtue of Paragraph 7.3(a) or by subsequent specific consent,
shall he deemed conditioned upon: (i) Lessee's acquiring all applicable permits
required by governmental authorities; (ii) the furnishing of copies of such
permits together with a copy of the plans and specifications for the Alteration
or Utility Installation to Lessor prior to commencement of the work thereon: and
(iii) the compliance by Lessee with all conditions of said permits in a prompt
and expeditious manner. Any Alterations or Utility Installations by Lessee
during the term of this Lease shall be done in a good and workmanlike manner,
with good and sufficient materials, and be in compliance with all Applicable
Requirements. Lessee shall promptly upon completion thereof furnish Lessor with
as-built plans and specifications therefor. Lessor may, (but without obligation
to do so) condition its consent to any requested Alteration or Utility
Installation that costs $2,500.00 or more upon Lessee's providing Lessor with a
lien and completion bond in an amount equal to one and one-half times the
estimated cost of such Alteration or Utility Installation.
(c) Lien Protection. Lessee shall pay when due all claims for labor
or materials furnished or alleged to have been furnished to or for Lessee at of
for use on the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises or any interest therein. Lessee shall
give Lessor not less than ten (10) days' notice prior to the commencement of any
work in, on, or about the premises, and Lessor shall have the right to post
notices of non-responsibility in or on the Premises as provided by law. If
Lessee shall, in good faith, contest the validity of any such lien, claim or
demand, then Lessee shall at its sole expense, defend and protect itself, Lessor
and the Premises against the same and shall pay and satisfy any such adverse
judgment that may be rendered thereon before the enforcement thereof against the
Lessor or the Premises. It Lessor shall require, Lessee shall furnish to Lessor
a surety bond satisfactory to Lessor in an amount equal to one and one-half
times the amount of such contested item claim or demand, indemnifying Lessor
against liability for the same, as required by law for the holding of the
Premises free from the effect of such lien or claim. In addition, Lessor may
require Lessee to pay Lessor's attorneys' fees and costs in participating in
such action if Lessor shall decide it is to its best interest to do so.
7.4 Ownership, Removal, Surrender, and Restoration.
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(a) Ownership. Subject to Lessor's right to require their removal
and to cause Lessee to become the owner thereof as hereinafter provided in this
Paragraph 7.4, all Alterations and Utility Installations made to the Premises by
Lessee shall be the properly of and owned by Lessee, but considered a part of
the Premises. Lessor may, at any time and at its option, elect in writing to
Lessee to be the owner of all or any specified part of the Lessee-Owned
Alterations and Utility Installations. Unless otherwise instructed per
Subparagraph 7.4(b) hereof, all Lessee-Owned Alterations and Utility
Installations shall, at the expiration or earlier termination of this Lease.
become the property of Lessor and remain upon the Premises and be surrendered
with the Premises by Lessee.
(b) Removal. Unless otherwise agreed in writing, Lessor may require
that any or all Lessee-Owned Alterations or Utility installations be removed by
(he expiration or earlier termination of this Lease, notwithstanding that their
installation may have been consented to by Lessor. Lessor may require the
removal at any time of all or any part of any Alterations or Utility
Installations made without the required consent of Lessor.
(c) Surrender/Restoration. Lessee shall surrender the Premises by
the end of the last day of the Lease term or any earlier termination date, clean
and free of debris and in good operating order, condition and state of repair,
ordinary wear and fear excepted. Ordinary wear and tear shall not include any
damage or deterioration that would have been prevented by good maintenance
practice or by Lessee performing all of its obligations under this Lease. Except
as otherwise agreed or specified herein, the Premises, as surrendered, shall
include the Alterations and Utility Installations. The obligation of Lessee
shall include the repair of any damage occasioned by the installation,
maintenance or removal of Lessee's Trade Fixtures, furnishings, equipment, and
Lessee-Owned Alterations and Utility Installations, as well as the removal of
any storage tank installed by or for Lessee, and the removal, replacement, or
remediation of any soil, material or ground water contaminated by Lessee, all as
may then be required by Applicable Requirements and/or good practice. Lessee's
Trade Fixtures shall remain the property of Lessee and shall be removed by
Lessee subject to its obligation to repair and restore the Premises per this
Lease.
8. Insurance; Indemnity.
8.1 [deleted]
8.2 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain and keep in force during
the term of this Lease a Commercial General Liability policy of insurance
protecting Lessee, Lessor and any Lender(s) whose names have been provided to
Lessee in writing (as additional insureds) against claims for bodily injury,
personal injury and properly damage based upon, involving or arising out of the
ownership, use, occupancy or maintenance of the Premises arid all areas
appurtenant thereto. Such insurance shall be on an occurrence basis providing
single limit coverage in an amount not less than $1,000,000 per occurrence with
an "Additional Insured-Managers or Lessors of Premises" endorsement and contain
the "Amendment of the Pollution Exclusion" endorsement for damage caused by
heat, smoke or fumes from a hostile fire. The policy shall not contain any
intra-insured exclusions as between insured persons or organizations, xxxx shall
include coverage for liability assumed under this Lease as an "Insured contract"
for the performance of Lessee's indemnity obligations under this Lease. The
limits of said insurance required by this Lease or as carried by Lessee shall
not, however, limit the liability of Lessee nor relieve Lessee of any obligation
hereunder. All insurance to be carried by Lessee shall be primary to and not
contributory with any similar insurance carried by Lessor, whose insurance shall
be considered excess insurance only.
(b) Carried by Lessor. Lessor shall also maintain liability
insurance described in Paragraph 8.2(a) above, in addition to and not in lieu
of, the insurance required to be maintained by Lessee. Lessee shall not be named
as an additional insured therein.
8.3 Properly Insurance-Building, Improvements and Rental Value.
(a) Building and Improvements. Lessor shall obtain and keep in force
during the term of this Lease a policy or policies, in the name of Lessor, with
loss payable to Lessor and to any Lender(s), insuring against loss or damage to
the Premises. Such insurance shall be for full replacement cost, as the same
shall exist from time to time, or the amount required by any Lender(s), but in
no event more than the commercially reasonable and available insurable value
thereof it, by reason of the unique nature or age of the improvements involved,
such latter amount is less than full replacement cost. Lessee-Owned Alterations
and Utility Installations, Trade Fixtures and Lessee's personal property shall
be insured by Lessee pursuant to Paragraph 8 4. If the coverage is available
arid commercially appropriate, Lessor's policy or policies shall insure against
all risks of direct physical loss or damage (except the perils of flood and/or
earthquake unless required by a Lender or included in the Base Premium),
including coverage for any additional costs resulting from debris removal and
reasonable amounts of cove-rage for the enforcement of any ordinance or law
regulating the reconstruction or replacement of any undamaged sections of the
Building required to be demolished or removed by reason of the enforcement of
any building, zoning, safety or land use laws as the result of a covered loss,
but not including plate glass insurance. Said policy or policies shall also
contain an agreed valuation provision in lieu of any co-insurance clause, waiver
of subrogation, arid inflation guard protection causing an increase in the
annual property insurance coverage amount by a factor of not less than the
adjusted U.S. Department of Labor Consumer Price index for Ali Urban Consumers
for the city nearest to where the Premises are located.
(b) Rental Value. Lessor shall also obtain and keep in force during
the term of this Lease a policy or policies in the name of Lessor, with loss
payable to Lessor and any Lender(s), insuring the loss of the full rental and
other charges payable by all lessees of the Building to Lessor for one year
(including all Real Property Taxes, insurance costs, all Common Area Operating
Expenses and any scheduled rental increases). Said insurance may provide that in
the event the Lease is terminated by reason of an insured loss, the period of
indemnity for such coverage shall be extended beyond the date of the completion
of repairs or replacement of the Premises, to provide for one full year's loss
of rental revenues
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from the date of any such loss. Said insurance shall contain an agreed valuation
provision in lieu of any co-insurance clause, and the amount of coverage shall
be adjusted annually to reflect the projected rental income. Real Property
Taxes, insurance premium costs and other expenses, if any, otherwise payable,
for the next 12-month period. Common Area Operating Expenses shall include any
deductible amount in the event of such loss.
(c) Adjacent Premises. Lessee shall pay for any increase in the
premiums for the properly insurance of the Building and for the Common Areas or
other buildings in the Industrial Center if said increase is caused by Lessee's
acts, omissions, use or occupancy of the Premises.
(d) Lessee's Improvements. Since Lessor is the Insuring Party,
Lessor shall not be required to insure Lessee-Owned Alterations and Utility
Installations unless the item in question has become the property of Lessor
under the terms of this Lease.
8.4 Lessee's Property Insurance. Subject to the requirements of Paragraph
8.5, Lessee at its cost shall either by separate policy or, at Lessor's option,
by endorsement to a policy already carried, maintain insurance coverage on all
of Lessee's personal property, Trade Fixtures and Lessee-Owned Alterations and
Utility Installations in, on, or about the Premises similar in coverage to that
carried by Lessor as the Insuring Party under Paragraph 8.3(a). Such insurance
shall be full replacement cost coverage with a deductible not to exceed $1,000
per occurrence. The proceeds from any such insurance shall be used by Lessee for
the replacement of personal property and the restoration of Trade Fixtures and
Lessee-Owned Alterations and Utility Installations. Upon request from Lessor,
Lessee shall provide Lessor with written evidence that such insurance is in
force.
8.5 Insurance Policies. Insurance required hereunder shall be In
companies duly licensed to transact business in the state where the Promises are
located, and maintaining during the policy term a "General Policyholders Rating"
of at least A-, VIII or such other rating as may be required by a Lender, as set
forth in the most current issue of "Best's Insurance Guide." Lessee shall not do
or permit to be done anything which shall invalidate the insurance policies
referred to in this Paragraph 8. Lessee shall cause to be delivered to Lessor,
within seven (7) days after the earlier of the Early Possession Date or the
Commencement Date, certified copies of, or certificates evidencing the existence
and amounts of, the insurance required under Paragraph 8.2(a) and 8.4. No such
policy shall be cancelable or subject to modification except after thirty (30)
days' prior written notice to Lessor. Lessee shall at least thirty (30) days
prior to the expiration of such policies, furnish Lessor with evidence of
renewals or "insurance binders" evidencing renewal thereof, or Lessor may order
such insurance and charge the cost thereof to Lessee, which amount shall be
payable by Lessee to Lessor upon demand.
8.6 Waiver of Subrogation. Without affecting any other rights or
remedies, Lessee and Lessor each hereby release and relieve the other, and waive
their entire right to recover damages (whether in contract or in tort) against
the other, for loss or damage to their property arising out of or incident to
the perils required to be insured against under Paragraph 8. The effect of such
releases and waivers of the right to recover damages shall not be limited by the
amount of insurance carried or required, or by any deductibles applicable
thereto. Lessor and Lessee agree to have their respective insurance companies
issuing property damage insurance waive any right to subrogation that such
companies may have against Lessor or Lessee, as the case may be, so long as the
insurance is not invalidated thereby,
8.7 Indemnity. Except for Lessor's negligence and/or breach of express
warranties, Lessee shall indemnify, protect, defend and hold harmless the
Premises, Lessor and its agents, Lessor's master or ground lessor, partners and
Lenders, from and against any and all claims, loss of rents and/or damages,
costs, liens, judgments, penalties, loss of permits, attorneys' and consultants'
fees, expenses and/or liabilities arising out of, involving, or in connection
with, the occupancy of the Premises by Lessee, the conduct of Lessee's business,
any act, omission or neglect of Lessee, its agents, contractors, employees or
invitees, and out of any Default or Breach by Lessee in the performance in a
timely manner of any obligation on Lessee's part to be performed under this
Lease. The fore-going shall include, but not be limited to, the defense or
pursuit of any claim or any action or proceeding involved therein, and whether
or not (in the case of claims made against Lessor) litigated and/or reduced to
judgment. In case any action or proceeding be brought against Lessor by reason
of any of the foregoing matters, Lessee upon notice from Lessor shall defend the
same at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor
shall cooperate with Lessee in such defense. Lessor need not have first paid any
such claim in order to be so indemnified.
8.8 Exemption of Lessor from Liability. Lessor shall not be liable for
injury or damage to the person or goods, wares, merchandise or other property of
Lessee, Lessee's employees, contractors, invitees, customers, or any other
person in or about the Premises, whether such damage or injury is caused by or
results from fire, steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction or other defects of pipes, tire sprinklers, wires,
appliances, plumb-ing, air conditioning or lighting fixtures, or from any other
cause, whether said injury or damage results from conditions arising upon the
Premises or upon other portions of the Building of which the Premises are a
part, from other sources or places, and regardless of whether the cause of such
damage or injury or the means of repairing the same is accessible or not. Lessor
shall not be liable for any damages arising from any act or neglect of any other
lessee of Lessor nor from the failure by Lessor to enforce the provisions of any
other lease in the Industrial Center. Notwithstanding Lessor's negligence or
breach of this Lease, Lessor shall under no circumstances be liable for injury
to Lessee's business or for any loss of income or profit therefrom.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall mean damage or destruction to the
Premises, other than Lessee-Owned Alterations and Utility Installations. the
repair cost of which damage or destruction is less than fifty percent
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(50%) of the then Replacement Cost (as defined in Paragraph 9.1 (d)) of the
Promises (excluding Lessee-Owned Alterations and Utility Installations and Trade
Fixtures) immediately prior to such damage or destruction.
(b) "Premises Total Destruction" shall mean damage or destruction to
the Premises, other than Lessee-Owned Alterations and Utility Installations, the
repair cost of which damage or destruction is fifty percent (50%) or more of the
then Replacement Cost of the Premises (excluding Lessee-Owned Alterations and
Utility Installations and Trade Fixtures) immediately prior to such damage or
destruction. In addition, damage or destruction to the Building, other than
Lessee-Owned Alterations and Utility Installations and Trade Fixtures of any
lessees of the Building, the cost of which damage or destruction is fifty
percent (50%) or more of the then Replacement Cost (excluding Lessee-Owned
Alterations and Utility Installations and Trade Fixtures of any lessees of the
Building) of the Building shall, at the option of Lessor, be deemed to be
Premises Total Destruction.
(c) "Insured Loss" shall mean damage or destruction to the Premises,
other than Lessee-Owned Alterations and Utility Installations and Trade
Fixtures, which was caused by an event required to be covered by the insurance
described in Paragraph 8.3(a) irrespective of any deductible amounts or coverage
limits involved.
(d) "Replacement Cost" shall mean the cost to repair or rebuild the
improvements owned by Lessor at the time of the occurrence to their condition
existing immediately prior thereto, including demolition, debris removal and
upgrading required by the operation of applicable building codes, ordinances or
laws, and without deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean the occurrence or
discovery of a condition involving the presence of, or a contamination by, a
Hazardous Substance as defined in Paragraph 6.2(a), in, on, or under the
Promises.
9.2 Premises Partial Damage--Insured Loss. If Premises Partial Damage
that is an Insured Loss occurs, then Lessor shall, at Lessor's expense, repair
such damage (but not Lessee's Trade Fixtures or Lessee-Owned Alterations and
Utility Installations) as soon as reasonably possible and this Lease shall
continue in full force and effect. In the event, however, that there is a
shortage of insurance proceeds and such shortage is due to the fact that, by
reason of the unique nature of the improvements in the Premises, full
replacement cost insurance coverage was not commercially reasonable and
available. Lessor shall have no obligation to pay for the shortage in insurance
proceeds or to fully restore the unique aspects of the Promises unless Lessee
provides Lessor with the funds to cover same, or adequate assurance thereof,
within ten (10) days following receipt of written notice of such shortage and
request therefor. If Lessor receives said funds or adequate assurance thereof
within said ten (10) day period, Lessor shall complete them as soon as
reasonably possible and this Lease shall remain in full force and effect. If
Lessor does not receive such funds or assurance within said period, Lessor may
nevertheless elect by written notice to Lessee within ten (10) days thereafter
to make such restoration and repair as is commercially reasonable with Lessor
paying any shortage in proceeds, in which case this Lease shall remain in full
force and effect. If Lessor does not receive such funds or assurance within such
ten (10) day period, and it Lessor does not so elect to restore and repair, then
this Lease shall terminate sixty (60) days following the occurrence of the
damage or destruction. Unless otherwise agreed. Lessee shall in no event have
any right to reimbursement from Lessor for any funds contributed by Lessee to
repair any such damage or destruction. Promises Partial Damage due to flood or
earthquake shall be subject to Paragraph 9.3 rather than Paragraph 9.2,
notwithstanding that there may be some insurance coverage, but the net proceeds
of any such insurance shall be made available for the repairs it made by either
Party.
9.3 Partial Damage--Uninsured Loss. If Premises Partial Damage that is
not an Insured Loss occurs, unless caused by a negligent or willful act of
Lessee (in which event Lessee shall make the repairs at Lessee's expense and
this Lease shall continue in full force and effect), Lessor may at Lessor's
option, either (i) repair such damage as soon as reasonably possible at Lessor's
expense, in which event this Lease shall continue in full force and effect, or
(ii) give written notice to Lessee within thirty (30) days after receipt by
Lessor of knowledge of the occurrence of such damage of Lessor's desire to
terminate this Lease as of the date sixty (60) days following the date of such
notice. In the event Lessor elects to give such notice of Lessor's intention to
terminate this Lease. Lessee shall have the right within ten (10) days after the
receipt of such notice to give written notice to Lessor of Lessee's commitment
to pay for the repair of such damage totally at Lessee's expense and without
reimbursement from Lessor. Lessee shall provide Lessor with the required funds
or satisfactory assurance thereof within thirty (30) days following such
commitment from Lessee. In such event this Lease shall continue in full force
and effect, and Lessor shall proceed to make such repairs as soon as reasonably
possible after the required funds are available. If Lessee does not give such
notice and provide the funds or assurance thereof within the times specified
above, this Lease shall terminate as of the date specified in Lessor's notice of
termination.
9.4 Total Destruction. Notwithstanding any other provision hereof, if
Premises Total Destruction occurs (including any destruction required by any
authorized public authority), this Lease shall terminate sixty (60) days
following the date of such Premises Total Destruction, whether or not the damage
or destruction is an Insured Loss or was caused by a negligent or willful act of
Lessee. In the event, however, that the damage or destruction was caused by
Lessee, Lessor shall have the right to recover Lessor's damages from Lessee
except as released and waived in Paragraph 9.7.
9.5 Damage Near End of Term. If at any time during the last six (6)
months of the term of this Lease there is damage for which the cost to repair
exceeds one month's Base Rent, whether or not an Insured Loss, Lessor may, at
Lessor's option, terminate this Lease effective sixty (60) days following the
date of occurrence of such damage by giving written notice to Lessee of Lessor's
election to do so within thirty (30) days after the date of occurrence of such
damage. Provided, however, if Lessee at that time has an exercisable option to
extend this Lease or to purchase the Premises, then Lessee may preserve this
Lease by (a) exercising such option, and (b) providing Lessor with any shortage
in insurance proceeds (or adequate assurance thereof) needed to make the repairs
on or before the earlier of (i) the date which is ten (10) days after Lessee's
receipt of Lessor's written notice purporting to terminate this Lease, or (ii)
the day
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prior to the date upon which such option expires. If Lessee duly exercises such
option during such period and provides Lessor with funds (or adequate assurance
thereof) to cover any shortage in insurance proceeds, Lessor shall, at Lessor's
expense repair such damage as soon as reasonably possible and this Lease shall
continue in full force and effect. If Lessee fails to exercise such option and
provide such funds or assurance during such period, then this Lease shall
terminate as of the date set forth in the first sentence of this Paragraph 9.5.
9.6 Abatement of Rent; Lessee's Remedies.
(a) In the event of (i) Premises Partial Damage or (ii) Hazardous
Substance Condition for which Lessee is not legally responsible, the Base Rent.
Common Area Operating Expenses and other charges, if any, payable by Lessee
hereunder for the period during which such damage or condition, its repair,
remediation or restoration continues, shall be abated in proportion to the
degree to which Lessee's use of the Premises is impaired, but not in excess of
proceeds from insurance required to be carried under Paragraph 8.3(b). Except
for abatement of Base Rent, Common Area Operating Expenses and other charges. if
any, as aforesaid, all other obligations of Lessee hereunder shall be performed
by Lessee, and Lessee shall have no claim against Lessor for any damage suffered
by reason of any such damage, destruction, repair, remediation or restoration.
(b) If Lessor shall be obligated to repair or restore the Premises
under the provisions of this Paragraph 9 and shall not commence, in a
substantial and meaningful way, the repair or restoration of the Premises within
ninety (90) days after such obligation shall accrue. Lessee may, at any time
prior to the commencement of such repair or restoration, give written notice to
Lessor and to any Lenders of which Lessee has actual notice of Lessee's election
to terminate this Lease on a (late not less than sixty (60) days following the
giving of such notice. If Lessee gives such notice to Lessor and such Lenders
and such repair or restoration is not commenced within thirty (30) days after
receipt of such notice, this Lease shall terminate as of the date specified in
said notice. If Lessor or a Lender commences the repair or restoration of the
Premises within thirty (30) days after the receipt of such notice, this Lease
shall continue in full force and effect. "Commence" as used in this Paragraph
9.6 shall mean either the unconditional authorization of the preparation of the
required plans, or the beginning of the actual work on the Premises, whichever
occurs first.
9.7 Hazardous Substance Conditions. It a Hazardous Substance Condition
occurs. unless Lessee is legally responsible therefor (in which case Lessee
shall make the investigation and remediation thereof required by Applicable
Requirements and this Lease shall continue in full force and effect, but subject
to Lessor's rights under Paragraph 6.2(c) and Paragraph 13), Lessor may at
Lessor's option either (i) investigate and remediate such Hazardous Substances
Condition. If required, as soon as reasonably possible at Lessor's expense, in
which event this Lease shall continue in full force and effect, or (ii) it file
estimated cost to investigate and remediate such condition exceeds twelve (12)
limes the then monthly Base Rent or $100,000 whichever is greater, give written
notice to Lessee within thirty (30) days after receipt by Lessor of knowledge of
the occurrence of such Hazardous Substance Condition of Lessor s desire to
terminate this Lease as of the date sixty (60), days following the date of such
notice. In the event Lessor elects to give such notice of Lessor s intention to
terminate this Lease. Lessee shall have the right within ten (10) days after the
receipt of such notice to give written notice to Lessor of Lessee's commitment
to Day for the excess costs of (a) investigation and remediation of such
Hazardous Substance Condition to the extent required by Applicable Requirements,
over (b) an amount equal to, waive (12) times the then monthly Base Rent or
$100.000, whichever is greater. Lessee shall provide Lessor with the funds
required of Lessee or satisfactory assurance thereof within thirty (30) days
following said commitment by Lessee, if, such event this Lease shall continue in
full force and effect. and Lessor shall proceed to make such investigation and
remediation as soon as reasonably possible after the required funds are
available. If Lessee does not give such notice and provide the required funds or
assurance thereof within the time period specified above, this Lease shall
terminate as of the date specified in Lessor's notice, of termination.
9.8 Term I nation-Advance Payments. Upon termination of this Lease
pursuant to this Paragraph 9, Lessor shall return to Lessee any advance payment
made by Lessee to Lessor and so much of Lessee's Security Deposit as has not
been, or is not then required to be, used by Lessor under the terms of this
Lease
9.9 Waiver of Statutes. Lessor and Lessee agree that the terms of this
Lease shall govern the effect of any damage to or destruction of the Premises
and the Building with respect to the termination of this Lease and hereby waive
the provisions of any present or future statute to the extent it is inconsistent
herewith.
10. Real Property Taxes.
10.1 Payment of Taxes. Lessor shall pay the Real Property Taxes, as
defined in Paragraph 10 2.1a), applicable to the Industrial Center.
10.2 Real Property Tax Definitions.
(a) As used herein, the term "Real Property Taxes" shall include any
form of real estate tax or assessment, general, special, ordinary or
extraordinary, and any license fee, commercial rental tax, improvement bond or
bonds, levy or tax (other than inheritance, personal income or estate taxes)
imposed upon the Industrial Center by any authority having the direct or
indirect power to tax, including any city, state or federal government, or any
school, agricultural, sanitary, fire, street, drainage, or other improvement
district thereof, levied against any legal or equitable interest of Lessor in
the Industrial Center or any portion thereof. Lessor's right to rent or other
income therefrom, and/or Lessor's business of leasing the Premises. The term
"Real Property Taxes" stall also include any tax, fee, levy, assessment or
charge, or any increase therein, imposed by reason of events occurring, or
changes in Applicable Law taking effect, during the term of this Lease,
including but not limited to a change in the ownership of the Industrial Center
or in the improvements thereon, the execution of this Lease, or any
modification, amendment or transfer thereof, and whether or not contemplated by
the Parties.
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(b) As used herein, the term "Base Real Property Taxes" shall be the
amount of Real Property Taxes, which are assessed against the Premises. Building
or Common Areas in the calendar year during which the Lease is executed. In
calculating Real Property Taxes for any calendar year, the Real Property Taxes
for any real estate tax year shall be included in the calculation of Real
Property Taxes for such calendar year based upon the number of days which such
calendar year and tax year have in common.
10.3 Additional Improvements. Common Area Operating Expenses shall not
include Real Property Taxes specified in the tax assessor's records and work
sheets as being caused by additional improvements placed upon the Industrial
Center by other lessees of by Lessor for the exclusive enjoyment of such other
lessees. Notwithstanding Paragraph 10.1 hereof, Lessee shall, however, pay to
Lessor at the time Common Area Operating Expenses are payable under Paragraph
4.2, the entirety of any increase in Real Property Taxes if assessed solely by
reason of Alterations, Trade Fixtures or Utility Installations placed upon the
Premises by Lessee or at Lessee's request.
10.4 Joint Assessment. If the Building is not separately assessed. Real
Property Taxes allocated to the Building shall be an equitable proportion of the
Real Property Taxes for all of the land and improvements included within the tax
parcel assessed, such proportion to be determined by Lessor from the respective
valuations assigned in the assessor's work sheets or such other information as
may be reasonably available. Lessor's reasonable determination thereof, in good
faith, shall be conclusive.
10.5 Lessee's Property Taxes. Lessee shall pay prior to delinquency all
taxes assessed against and levied upon Lessee-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all personal property
of Lessee contained in the Premises or stored within the Industrial Center. When
possible, Lessee shall cause its Lessee-Owned Alterations and Utility
Installations, Trade Fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from life real property of Lessor.
If any of Lessee's said property shall be assessed with Lessor's real property,
Lessee shall pay Lessor the taxes attributable to Lessee's property within ten
(10) days after receipt of a written statement setting forth the taxes
applicable to Lessee's property.
11. [deleted]
12. Assignment and Subletting.
12.1 Lessor's Consent Required.
(a) Lessee shall not voluntarily or by operation of law assign,
transfer, mortgage or otherwise transfer or encumber (collectively, "assign") or
sublet all or any part of Lessee's interest in this Lease or in the Premises
without Lessor's prior written consent which may be withheld in Lessor's sole
and absolute discretion.
(b) A change in the control of Lessee shall constitute an assignment
requiring Lessor's consent. The transfer, on a cumulative basis, of twenty-five
per-cent (25%) or more of the voting control of Lessee shall constitute a change
in control for this purpose.
(c) The involvement of Lessee or its assets in any transaction, or
series of transactions (by way of merger, sale, acquisition, financing,
refinancing, transfer, leveraged buy-out or otherwise), whether or not a formal
assignment or hypothecation of this Lease or Lessee's assets occurs, which
results or will result in a reduction of the Net Worth of Lessee, as hereinafter
defined, by an amount equal to or greater than twenty-five percent (25%) of such
Net Worth of Lessee as it was represented to Lessor at the time of full
execution and delivery of this Lease or at the time of the most recent
assignment to which Lessor has consented, or as it exists immediately prior to
said transaction or transactions constituting such reduction, at whichever time
said Net Worth of Lessee was or is greater, shall be considered an assignment of
this Lease by Lessee to which Lessor may withhold its consent in its sole
discretion "Net Worth of Lessee" for purposes of this Lease shall be the net
worth of Lessee (excluding any Guarantors) established under generally accepted
accounting principles consistently applied.
(d) An assignment or subletting of Lessee's interest in this Lease
without Lessor's specific prior written consent shall, at Lessor's option, be a
Default curable after notice per Paragraph 13.1, or a non-curable Breach without
the necessity of any notice and grace period. If lessor elects to treat such
unconsented to assignment or subletting as a non-curable Xxxxxx, Lessor shall
have the right to either: (i) terminate this Lease, or (ii) upon thirty (30)
days' written notice ("Lessor's Notice"), increase the monthly Base Rent for the
Premises to the greater of the then fair market rental value of the Premises, as
reasonably determined by Lessor, or one hundred ten percent (110%) of the Base
Rent then in effect. Pending determination of the new fair market rental value,
if disputed by Lessee, Lessee shall pay the amount set forth in Lessor's Notice,
with any overpayment credited against the next installment(s) of base Rent
coming due, and any underpayment for the period retroactively to the effective
date of the adjustment being due and payable immediately upon the determination
thereof. Further, in the event of such Breach and rental adjustment, (i) the
purchase price of any option to purchase the Premises held by Lessee shall be
subject to similar adjustment to the then fair market value as reasonably
determined by Lessor (without the Lease being considered an encumbrance or any
deduction for depreciation or obsolescence, and considering the Premises at its
highest and best use and in good condition) or one hundred ten percent (110%) of
the price previously in effect, (ii) any index-oriented rental or price
adjustment formulas contained in this Lease shall be adjusted to require that
the base index be determined with reference to the index applicable to the time
of such adjustment, and (iii) any fixed rental adjustments scheduled during the
remainder of the Lease term shall he increased in the same ratio as the new
rental bears to the Base Rent in effect immediately prior to the adjustment
specified in Lessor's Notice.
(e) Lessee's remedy for any breach of this Paragraph 12.1 by
Lessor shall be limited to compensatory damages and/or injunctive relief.
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12.2 Terms and Conditions Applicable to Assignment and Subletting.
(a) Regardless of Lessor's consent, any assignment or subletting
shall not (i) be effective without the express written assumption by such
assignee or sublessee of the obligations of Lessee under this Lease, (ii)
release Lessee of any obligations hereunder, nor (iii) alter the primary
liability of Lessee for the payment of Base Pont and other sums due Lessor
hereunder or for the performance of any other obligations to be performed by
Lessee under this Lease.
(b) Lessor may accept any rent or performance of Lessee's
obligations from any person other than Lessee pending approval or disapproval of
an assignment. Neither a delay in the approval or disapproval of such assignment
nor the acceptance of any rent for performance shall constitute a waiver or
estoppel of Lessor's right to exercise its remedies for the Default or Breach by
Lessee of any of the terms, covenants or conditions of this Lease.
(c) The consent of Lessor to any assignment or subletting shall not
constitute a consent to any subsequent assignment or subletting by Lessee or to
any subsequent or successive assignment or subletting by the assignee or
sublessee. However, Lessor may consent to subsequent sublettings and assignments
of the sublease or any amendments or modifications thereto without notifying
Lessee or anyone else liable under this Lease or the sublease and without
obtaining their consent, and such action shall not relieve such persons from
liability under this Lease or the sublease.
(d) In the event of any Default or Breach of Lessee's obligation
under this Lease, Lessor may proceed directly against Lessee, any Guarantors or
any-one else responsible for the performance of the Lessee's obligations under
this Lease, including any sublessee, without first exhausting Lessor's remedies
against any other person or entity responsible therefor to Lessor, or any
security hold by Lessor.
(e) Each request for consent to an assignment or subletting shall be
in writing, accompanied by information relevant to Lessor's determination as to
the financial and operational responsibility and appropriateness of the proposed
assignee or sublessee, including but not limited to the intended use and/or
required modification of the Premises, if any, together with a non-refundable
deposit of $1,000 or ten percent (10%) of the monthly Base Rent applicable to
the portion of the Premises which is the subject of the proposed assignment or
sublease, whichever is greater, as reasonable consideration for Lessor's
considering and processing the request for consent. Lessee agrees to provide
Lessor with such other or additional information and/or documentation as may be
reasonably requested by Lessor.
(f) Any assignee of, or sublessee under, this Lease shall, by reason
of accepting such assignment or entering into such sublease, be deemed, for the
benefit of Lessor, to have assumed and agreed to conform and comply with each
and every term, covenant, condition and obligation herein to be observed or
performed by Lessee during the term of said assignment or sublease, other than
such obligations as are contrary to or inconsistent with provisions of an
assignment or sublease to which Lessor has specifically consented in writing.
(g) The occurrence of a transaction described in Paragraph 12.2(c)
shall give Lessor the right (but not the obligation) to require that the
Security Deposit be increased by an amount equal to six (6) times the then
monthly Base Rent, and Lessor may make the actual receipt by Lessor of the
Security Deposit Increase a condition to Lessor's consent to such transaction.
(h) Lessor, as a condition to giving its consent to any assignment
or subletting, may require that the amount and adjustment schedule of the rent
payable under this Lease be adjusted to what is then the market value and/or
adjustment schedule for property similar to the Premises as then constituted, as
determined by Lessor.
12.3 Additional Terms and Conditions Applicable to Subletting. The
following terms and conditions shall apply to any subletting by Lessee of all or
any part of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfers to Lessor all of Lessee's
interest in all rentals and income arising from any sublease of all or a portion
of the Premises heretofore or hereafter made by Lessee, and Lessor may collect
such rent and income and apply same toward Lessee's obligations under this
Lease; provided, however, that until a Breach (as defined in Paragraph 13.1)
shall occur in the performance of Lessee's obligations under this Lease, Lessee
may, except as otherwise provided in this Lease, receive, collect and enjoy the
rents accruing under such sublease. Lessor shall not, by reason of the foregoing
provision or any other assignment of such sublease to Lessor, nor by reason of
the collection of the rents from a sublessee, be deemed liable to the sublessee
for any failure of Lessee to perform and comply with any of Lessee's obligations
to such sublessee under such Sublease. Lessee hereby irrevocably authorizes and
directs any such sublessee, upon receipt of a written notice from Lessor stating
that a Breach exists In the performance of Lessee's obligations under this
Lease, to pay to Lessor the rents and other charges due and to become due under
the sublease. Sublessee shall rely upon any such statement and request from
Lessor and shall pay such rents and other charges to Lessor without any
obligation or right to inquire as to whether such Breach exists and
notwithstanding any notice from or claim from Lessee to the contrary. Lessee
shall have no right or claim against such sublessee, or, until the Breach has
been cured, against Lessor, for any such rents and other charges so paid by said
sublessee to Lessor.
(b) In the event of a Breach by Lessee in the performance of its
obligations under this Lease, Lessor, at its option and without any obligation
to do so, may require any sublessee to attorn to Lessor, in which event Lessor
shall undertake the obligations of the sublessor under such sublease from the
time of the exercise of said option to the expiration of such sublease;
provided, however, Lessor shall not be liable for any prepaid rents or security
deposit paid by such sublessee to such sublessor or for any other prior
defaults or breaches of such sublessor under such sublease.
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(c) Any matter or thing requiring the consent of the sublessor under
a sublease shall also require the consent of Lessor herein.
(d) No sublessee under a sublease approved by Lessor shall further
assign or sublet all or any part of the Premises without Lessors prior written
consent which may be withheld in Lessor's sole discretion.
(e) Lessor shall deliver a copy of any notice of Default or Breach
by Lessee to the sublessee, who shall have the right to cure the Default of
Lessee within the grace period, if any, specified in such notice. The sublessee
shall have a right of reimbursement and offset from and against Lessee for any
such Defaults cured by the sublessee.
13. Default; Breach; Remedies.
13.1 Default; Breach. Lessor and Lessee agree that if an attorney is
consulted by Lessor in connection with a Lessee Default or Breach (as
hereinafter defined), $350.00 is a reasonable minimum sum per such occurrence
for legal services and costs in the preparation and service of a notice of
Default, and that Lessor may include the cost of such services and costs in said
notice as rent due and payable to cure said default. A "Default" by Lessee is
defined as a failure by Lessee to observe, comply with or perform any of the
terms, covenants, conditions or rules applicable to Lessee under this Lease. A
"Breach" by Lessee is defined as the occurrence of any one or more of the
following Defaults, and, where a grace period for cure after notice is specified
herein, the failure by Lessee to cure such Default prior to the expiration of
the applicable grace period, and shall entitle Lessor to pursue the remedies set
forth in Paragraphs 13.2 and/or 13.3:
(a) The vacating of the Premises without the intention to reoccupy
same, or the abandonment of the Premises.
(b) Except as expressly otherwise provided in this Lease, the
failure by Lessee to make any payment of Base Rent, Lessee's Share of Common
Area Operating Expenses, or any other monetary payment required to be made by
Lessee hereunder as and when due, the failure by Lessee to provide Lessor with
reasonable evidence of insurance or surety bond required under this Lease, or
the failure of Lessee to fulfill any obligation under this Lease which endangers
or threatens life or property, where such failure continues for a period of
three (3) days following written notice thereof by or on behalf of Lessor to
Lessee.
(c) Except as expressly otherwise provided in this Lease, the
failure by Lessee to provide Lessor with reasonable written evidence (in duly
executed original form, if applicable) of (i) compliance with Applicable
Requirements per Paragraph 6.3, (ii) the inspection, maintenance and service
contracts required under Paragraph 7.1(b), (iii) the rescission of an
unauthorized assignment or subletting per Paragraph 12.1, (iv) a Tenancy
Statement per Paragraphs 16 or 37, (v) the subordination or non-subordination of
this Lease per Paragraph 30, (vi) the guaranty of the performance of Lessee's
obligations under this Lease if required under Paragraphs 1.11 and 37, (vii) the
execution of any document requested under Paragraph 42 (easements), or (viii)
any other documentation or information which Lessor may reasonably require of
Lessee under the terms of this lease, where any such failure continues for a
period of ten (10) days following written notice by or on behalf of Lessor to
Lessee.
(d) A Default by Lessee as to the terms, covenants, conditions or
provisions of this Lease, or of the rules adopted under Paragraph 40 hereof that
are to be observed, complied with or performed by Lessee, other than those
described in Subparagraphs 13.1(a), (b) or (c), above, where such Default
continues for a period of thirty (30) days after written notice thereof by or on
behalf of Lessor to Lessee; provided, however, that it the nature of Lessee's
Default is such that more than thirty (30) days are reasonably required for its
cure, then it shall not be deemed to be a Breach of this Lease by Lessee if
Lessee commences such cure with-in said thirty (30) day period and thereafter
diligently prosecutes such cure to completion.
(e) The occurrence of any of the following events: (i) the making by
Lessee of any general arrangement or assignment for the benefit of creditors;
(ii) Lessee's becoming a "debtor" as defined in 11 U.S. Code Section 101 or any
successor statute thereto (unless, in the case of a petition filed against
Lessee, the same is dismissed within sixty (60) days); (iii) the appointment of
a trustee or receiver to take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where possession
is not restored to Lessee within thirty (30) days: or (iv) the attachment,
execution or other judicial seizure of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this Lease, where such
seizure is not discharged within thirty (30) days; provided, however, in the
event that any provision of this Subparagraph 13.1(e) is contrary to any
applicable law, such provision shall be of no force or effect, and shall not
affect the validity of the remaining provisions.
(f) The discovery by Lessor that any financial statement of Lessee
or of any Guarantor, given to Lessor by Lessee or any Guarantor, was materially
false.
(g) If the performance of Lessee's obligations under this Lease is
guaranteed: (i) the death of a Guarantor, (ii) the termination of a Guarantor's
liability with respect to this Lease other than in accordance with the terms of
such guaranty, (iii) a Guarantor's becoming insolvent or the subject of a
bankruptcy filing, (iv) a Guarantor's refusal to honor the guaranty, or (v) a
Guarantor's breach of its guaranty obligation on an anticipatory breach basis,
and Lessee's failure, within sixty (60) days following written notice by or on
behalf of Lessor to Lessee of any such event, to provide Lessor with written
alternative assurances of security, which, when coupled with the then existing
resources of Lessee, equals or exceeds the combined financial resources of
Lessee and the Guarantors that existed at the time of execution of this Lease.
13.2 Remedies. It Lessee fails to perform any affirmative duly or
obligation of Lessee under this Lease, within ten (10) days after written notice
to Lessee (or in case of an emergency, without notice). Lessor may at its option
(but
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without obligation to do so), perform such duty or obligation on Lessee's
behalf, including but not limited to the obtaining of reasonably required bonds,
insurance policies, or governmental licenses, permits or approvals. The costs
and expenses of any such performance by Lessor shall be due and payable by
Lessee to Lessor upon invoice therefor. It any check given to Lessor by Lessee
shall not be honored by the bank upon which it is drawn, Lessor, at its own
option, may require all future payments to be made under this Lease by Lessee to
be made only by cashier's check. In the event of a Breach of this Lease by
Lessee (as defined in Paragraph 13.1), with or without further notice or demand.
and without limiting Lessor in the exercise of any right or remedy which Lessor
may have by reason of such Breach, Lessor may:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall terminate and
Lessee shall immediately surrender possession of the Premises to Lessor. In such
event Lessor shall be entitled to recover from Lessee: (i) the worth at the time
of the award of the unpaid rent which had been earned at the time of
termination; (ii) the worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
award exceeds the amount of such rental loss that the Lessee proves could have
been reasonably avoided; (iii) the worth at the time of award of the amount by
which the unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss that the Lessee proves could be
reasonably avoided; and (iv) any other amount necessary to compensate Lessor for
all the detriment proximately caused by the Lessee's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom, including but not limited to the cost of recovering
possession of the Premises, expenses of reletting, including necessary
renovation and alteration of the Premises, reasonable attorneys' fees, and that
portion of any leasing commission paid by Lessor in connection with this Lease
applicable to the unexpired term of this Lease. The worth at the time of award
of the amount referred to in provision (iii) of the immediately preceding
sentence shall be computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco or the Federal Reserve Bank District
in which the Premises are located at the time of award plus one percent (1%).
Efforts by Lessor to mitigate damages caused by Lessee's Default or Breach of
this Lease shall not waive Lessor's right to recover damages under this
Paragraph 13.2. If termination of this Lease is obtained through the provisional
remedy of unlawful detainer, Lessor shall have the right to recover in such
proceeding the unpaid rent and damages as are recoverable therein, or Lesser may
reserve the right to recover all or any part thereof in a separate suit to for
such rent and/or damages. If a notice and grace period required under
Subparagraph 13.1(b), (c) or (d) was not previously given, a notice to pay rent
or quit, or to perform or quit, as the case may be, given to Lessee under any
statute authorizing the forfeiture of !leases for unlawful detainer shall also
constitute, the applicable notice for grace period purposes required by
Subparagraph 13.1(b), (c) or (d). In such case, the applicable grace period
under the unlawful detainer statute shall run concurrently after the one such
statutory notice, and the failure of Lessee to cure the Default within the
greater of the two (2) such grace periods shall constitute both in unlawful
detainer and a Breach of this Lease entitling Lessor to the remedies provided
for in this Lease and/or by said statute.
(b) Continue the Lease and Lessee's right to possession in effect
(in California under California Civil Code Section 1951.4) after Lessee's Breach
and recover the rent as it becomes due, provided Lessee has the right to sublet
or assign, subject only to reasonable limitation. Lessor and Lessee agree that
the limitations on assignment and subletting in this Lease are reasonable. Acts
of maintenance or preservation, efforts to relet the Premises, or the
appointment or a receiver to protect the Lessor's interest under this Lease,
shall not constitute a termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the Premises are
located.
(d) The expiration or termination of this Lease and/or the
termination of Lessee's right to possession shall not relieve Lessee from
liability under any indemnity provisions of this Lease as to matters occurring
or accruing during the term hereof or by reason of Lessee's occupancy of the,
Promises.
13.3 Inducement Recapture In Event of Breach. Any agreement by Lessor for
free or abated rent or other charges applicable to the Premises, or for the
giving or paying by Lessor to or for Lessee of any cash or other bonus,
inducement or consideration for Lessee's entering into this Lease, all of which
concessions are hereinafter referred to as "Inducement Provisions" shall be
doomed conditioned upon Lessee's hill and faithful performance of all of the
terms, covenants and conditions of this Lease to be performed or observed by
Lessee during the term hereof as the same may be extended. Upon the occurrence
of a Breach (as defined in Paragraph 13.1) of this Lease by Lessee, any such
Inducement Provision shall automatically be deemed deleted from this Lease and
of no, further force or effect, and any rent, other charge, bonus, inducement or
consideration theretofore abated, given or paid by Lessor under such an
Inducement Provision shall be immediately due and payable by Lessee to Lessor,
and recoverable by Lessor, as additional rent due under this Lease,
notwithstanding any subsequent cure of said Breach by Lessee. The acceptance by
Lessor of rent or the cure of the Breach which initiated the operation of this
Paragraph 13.3 shall not be deemed a waiver by Lessor of the provisions of this
Paragraph 13.3 unless specifically so stated in writing by Lessor at the time of
such acceptance.
13.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee
to Lessor of rent and other sums due hereunder will cause Lessor 10 111CM costs
not contemplated by this Lease, the exact amount of which will be extremely
difficult to ascertain. Such costs include, but are not limited to, processing
and accounting charges, and late charges which may be imposed upon Lessor by the
terms of any ground lease, mortgage or deed of trust covering the premises.
Accordingly, if any installment of rent or other sum due from Lessee shall not
be received by Lessor or Lessor's designee within ten (10) days after such
amount shall be due, then, without any requirement for notice to Lessee, Lessee
shall pay to Lessor a late charge equal to six percent (6%) M Such overdue
amount. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of late payment by
Lessee. Acceptance of such late charge by Lessor shall in no event constitute a
waiver of Lessee's Default or Breach with respect to such overdue amount, nor
prevent Lessor from exercising any of the other rights and remedies granted
hereunder. In the event that a late charge is payable hereunder, whether or not
collected, for three (3) consecutive
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installments of Base Rent, then notwithstanding Paragraph 4.1 or any other
provision of this Lease to the contrary, Base Rent shall. at Lessor's option,
become due and payable quarterly in advance.
13.5 Breach by Lessor. Lessor shall not be deemed in breach of this Lease
unless Lessor fails within a reasonable time to perform an obligation required
to be performed by Lessor. For purposes of this Paragraph 13.5, a reasonable
time shall in no event be less than thirty (30) days after receipt by Lessor,
and by any Lender(s) whose name and address shall have been furnished to Lessee
in writing for such purpose, of written notice specifying wherein such
obligation of Lessor has not been performed; provided, however, that if the
nature of Lessor's obligation is such that more than thirty (30) days after such
notice are reasonably required for its performance, then Lessor shall not be in
breach of this Lease it performance is commenced within such thirty (30) day
period and thereafter diligently pursued to completion.
14. Condemnation. If the Premises or any portion thereof are taken under the
power of eminent domain or sold under the threat of the exercise of said power
(all of which are herein called "condemnation"), this Lease shall terminate as
to the part so taken as of the date the condemning authority takes title or
possession, whichever first occurs. It more than ten percent (10%) of the floor
area of the Premises, or more than twenty-five percent (25%) of the portion of
the Common Areas designated for Lessee's parking, is taken by condemnation,
Lessee may, at Lessee's option, to be exercised in writing within ten (10) days
after Lessor shall have given Lessee written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
shall have taken possession) terminate this Lease as of the date the condemning
authority takes such possession. If Lessee does not terminate this Lease in
accordance with the foregoing, this Lease shall remain in full force and effect
as to the portion of the Premises remaining, except that the Base Rent shall be
reduced in the same proportion as the rentable floor area of the Premises taken
bears to the total rentable floor area of the Premises. No reduction of Base
Rent shall occur if the condemnation does not apply to any portion of the
Premises. Any award for the taking of all or any part of the Premises under the
power of eminent domain or any payment made under threat of the exercise of such
power shall be the property of Lessor. whether such award shall be made as
compensation for diminution of value of the leasehold or for the taking of the
fee, or as severance damages; provided, however, that Lessee shall be entitled
to any compensation, separately awarded to Lessee for Lessee's relocation
expenses and/or loss of Lessee's Trade Fixtures. In the event that this Lease is
not terminated by reason of such condemnation, Lessor shall to the extent of its
net severance damages received, over and above Lessee's Share of the legal and
other expenses incurred by Lessor in the condemnation, matter, repair any damage
to the Premises caused by such condemnation authority. Lessee shall be
responsible for the payment of any amount in excess of such not severance
damages required to complete such repair.
15. [deleted]
16. Tenancy and Financial Statements.
16.1 Tenancy Statement. Each Party (as "Responding Party") shall within
ten (10) days after written notice from the other Party (the "Requesting Party")
execute, acknowledge and deliver to the Requesting Party a statement in writing
in a form similar to the then most current "Tenancy Statement" form published by
the American Industrial Real Estate Association, plus such additional
information, confirmation and/or statements as may be reasonably requested by
the Requesting Party.
16.2 Financial Statement. If Lessor desires to finance, refinance, or
sell the Premises or the Building, or any part thereof, Lessee and all
Guarantors shall deliver to any potential lender or purchaser designated by
Lessor such financial statements of Lessee and such Guarantors as may be
reasonably required by such lender or purchaser, including but not limited to
Lessee's financial statements for the past three (3) years. All such financial
statements shall be received by Lessor and such lender or purchaser in
confidence and shall be used only for the purposes herein set forth.
17. Lessor's Liability. The term "Lessor" as used herein shall mean the owner
or owners at the time in question of the fee title to the Premises. In the event
of a transfer of Lessor's title or interest in the Premises or in this Lease,
Lessor shall deliver to the transferee or assignee (in cash or by credit) any
unused Security Deposit held by Lessor at the time of such transfer or
assignment. Except as provided in Paragraph 15.3, upon such transfer or
assignment and delivery of the Security Deposit, as aforesaid. the prior Lessor
shall be relieved of all liability with respect to the obligations and/or
covenants under this Lease thereafter to be performed by the Lessor. Subject to
the foregoing, the obligations and/or covenants in this Lease to be performed by
the Lessor shall be binding only upon the Lessor as hereinabove defined.
18. Severability. The invalidity of any provision of this Lease, as determined
by a court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof.
19. Interest on Past-Due Obligations. Any monetary payment due Lessor
hereunder, other than late charges. not received by Lessor within ten (10) days
follow-ing the date on which it was due, shall bear interest from the date due
at the prime rate charged by [he largest state chartered bank in the state in
which the Premises are located plus four percent (4%) per annum, but not
exceeding the maximum rate allowed by law, in addition to the potential late
charge provided for in Paragraph 13.4.
20. Time of Essence. Time is of the essence with respect to the performance of
all obligations to be performed or observed by the Parties under this Lease.
21. Rent Defined. All monetary obligations of Lessee to Lessor under the terms
of this Lease are deemed to be rent.
22. No Prior or other Agreements. This Lease contains all agreements between
the Parties with respect to any matter mentioned herein, and no other prior or
contemporaneous agreement or understanding shall be effective.
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23. Notices.
23.1 Notice Requirements. All notices required or permitted by this Lease
shall be in writing and may be delivered in person (by hand or by messenger or
courier service) or may be sent by regular, certified or registered mail or U.S.
Postal Service Express Mail, with postage prepaid, and shall be deemed
sufficiently given if served in a manner specified in this Paragraph 23. The
addresses noted adjacent to a Party's signature on this Lease shall be that
Party's address for delivery or mailing of notice purposes. Either Party may by
written notice to the other specify a different address for notice purposes,
except that upon Lessee's taking possession of the Premises, the Premises shall
constitute Lessee's address for the purpose of mail-ing or delivering notices to
Lessee. A copy of all notices required or permitted to be given to Lessor
hereunder shall be concurrently transmitted to such party or parties at such
addresses as Lessor may from time to time hereafter designate by written notice
to Lessee.
23.2 Date of Notice. Any notice sent by registered or certified mail,
return receipt requested, shall be deemed given on the date of delivery shown on
the receipt card, or it no delivery date is shown, the postmark thereon. If sent
by regular mail. the notice shall be deemed given forty-eight (48) hours after
the same is addressed as required herein and mailed with postage prepaid.
Notices delivered by United States Express Mail or overnight courier that
guarantees next day delivery shall be deemed given twenty-four (24) hours after
delivery of the same to the United States Postal Service or courier. If notice
is received on a Saturday or a Sunday or a legal holiday, it shall be deemed
received on the next business day.
24. Waivers. No waiver by Lessor of the Default or Breach of any term.
covenant or condition hereof by Lessee, shall be deemed a waiver of any other
term, covenant or condition hereof, or of any subsequent Default or Breach by
Lessee of the same or any other term, covenant or condition hereof. Lessor's
consent to, or approval of, any such act shall not be deemed to render
unnecessary the obtaining of Lessor's consent to. or approval of, any subsequent
or similar act by Lessee, or be construed as the basis of an estoppel to enforce
the provision or provisions of this Lease requiring such consent. Regardless of
Lessor's knowledge of a Default or Breach at the time of accepting rent, the
acceptance of rent by Lessor shall not be a waiver of any Default or Breach by
Lessee of any provision hereof. Any payment given Lessor by Lessee may be
accepted by Lessor on account of moneys or damages due Lessor, notwithstanding
any qualifying statements or conditions made by Lessee in connection therewith,
which such statements and/or conditions shall be of no force or effect
whatsoever unless specifically agreed to in writing by Lessor at or before the
time of deposit of such payment.
25. Recording. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a short form memorandum of this
Lease for recording. purposes. The Party requesting recordation shall be
responsible for payment of any fees or taxes applicable thereto.
26. No Right To Holdover. Lessee has no right to retain possession of the
Premises or any part thereof beyond the expiration or earlier termination of
this Lease. In the event that Lessee holds over in violation of this Paragraph
26 then the Base Rent payable from and after the time of the expiration or
earlier termination of this Lease shall be increased to two hundred percent
(200%) of the Base Rent applicable during the month immediately preceding such
expiration or earlier termination. Nothing contained herein shall be construed
as a consent by Lessor to any holding over by Lessee.
27. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at
law or in equity.
28. Covenants and Conditions. All provisions of this Lease to be observed or
performed by Lessee are both covenants and conditions.
29. Binding Effect; Choice of Law. This Lease shall be binding upon the
Parties, their personal representatives, successors and assigns and be governed
by the laws of the State in which the Premises are located. Any litigation
between the Parties hereto concerning this Lease shall be initiated in the
county in which the Premises are located.
30. Subordination; Attornment; Non-Disturbance.
30.1 Subordination. This Lease and any Option granted hereby shall be
subject and subordinate to any ground lease, mortgage, deed of trust, or other
hypothecation or security device (collectively, "Security Device"), now or
hereafter placed by Lessor upon the real property of which the Premises are a
part, to any and all advances made on the security thereof, and to all renewals,
modifications, consolidations, replacements and extensions thereof. Lessee
agrees that the Lenders holding any such Security Device shall have no duty,
liability or obligation to perform any of the obligations of Lessor under this
Lease, but that in the event of Lessor's default with respect to any such
obligation, Lessee will give any Lender whose name and address have been
furnished Lessee in writing for such purpose notice of Lessor's default pursuant
to Paragraph 13.5. If any Lender shall elect to have this Lease and/or any
Option granted hereby superior to the lien of its Security Device and shall give
written notice thereof to Lessee, this Lease and such Options shall be deemed
prior to such Security Device, notwithstanding the relative dates of the
documentation or recordation thereof.
30.2 Attornment. Subject to the non-disturbance provisions of Paragraph
30.3, Lessee agrees to attorn to a Lender or any other party who acquires owner-
ship of the Promises by reason of a foreclosure of a Security Device, and that
in the event of such foreclosure, such new owner shall not: (i) be liable for
any act or omission of any prior lessor or with respect to events occurring
prior to acquisition of ownership, (it) be subject to any offsets or defenses
which Lessee might have against any prior lessor, or (iii) be bound by
prepayment of more than one month's rent.
30.3 Non-Disturbance. With respect to Security Devices entered into by
Lessor after the execution of this lease, Lessee's subordination of this Lease
shall be subject to receiving assurance (a "non-disturbance agreement") from
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the Lender that Lessee's possession and this Lease, including any options to
extend the term hereof, will not be disturbed so long as Lessee is not in Breach
hereof and attorns to the record owner of the Premises.
30.4 Self-Executing. The agreements contained in this Paragraph 30 shall
be effective without the execution of any further documents; provided, however,
that upon written request from Lessor or a Lender in connection with a sale,
financing or refinancing of Premises, Lessee and Lessor shall execute such
further writings as may be reasonably required to separately document any such
subordination or non-subordination, attornment and/or non-disturbance agreement
as is provided for herein.
31. Attorneys' Fees. If any Party brings an action or proceeding to enforce
the terms hereof or declare rights hereunder. the Prevailing Party (as here-
after defined) in any such proceeding, action, or appeal thereon, shall be
entitled to reasonable attorneys' fees. Such fees may be awarded in the same
suit or recovered in a separate suit, whether or not such action or proceeding
is pursued to decision or judgment. The term "Prevailing Party" shall include,
without limitation, a Party who substantially obtains or defeats the relief
sought, as the case may be, whether by compromise, settlement, judgment, or the
abandonment by the other Party of its claim or defense. The attorneys' fee award
shall not be computed in accordance with any court fee schedule, but shall be
such as to fully reimburse all attorneys' fees reasonably incurred. Lessor shall
be entitled to attorneys' fees, costs and expenses incurred in preparation and
service of notices of Default and consultations in connection therewith, whether
or not a legal action is subsequently commenced in connection with such Default
or resulting Breach.
32. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's agents
shall have the right to enter the Premises at any time, in the case of an
emergency, and otherwise at reasonable times for the purpose of showing the same
to prospective purchasers, lenders, or lessees, and making such alterations,
repairs, improvements or additions to the Premises or to the Building, as Lessor
may reasonably deem necessary. Lessor may at any time place on or about the
Premises or Building any ordinary "For Sale" signs and Lessor may at any time
during the last one hundred eighty (180) days of the term hereof place on or
about the Promises any ordinary "For Lease" signs. All such activities of Lessor
shall be without abatement of rent or liability to Lessee.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Promises without first having
obtained Lessor's prior written consent. Notwithstanding anything to the
contrary in this Lease, Lessor shall not be obligated to exercise any standard
of reasonableness in determining whether to grant such consent.
34. Signs. Lessee shall not place any sign upon the exterior of the Premises
or the Building, except that Lessee may, with Lessor's prior written consent,
install (but not on the roof) such signs as are reasonably required to advertise
Lessee's own business so long as such signs are in a location designated by
Lessor and comply with Applicable Requirements and the signage criteria
established for the Industrial Center by Lessor. The installation of any sign on
the Premises by or for Lessee shall be subject to the provisions of Paragraph 7
(Maintenance, Repairs, Utility Installations, Trade Fixtures and Alterations).
Unless otherwise expressly agreed herein, Lessor reserves all rights to the use
of the roof of the Building, and the right to install advertising signs on the
Building, including the roof. which do not unreasonably interfere with the
conduct of Lessee's business; Lessor shall be entitled to all revenues from such
advertising signs.
35. Termination; Merger. Unless specifically stated otherwise in writing by
Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual
termination or cancellation hereof, or a termination hereof by Lessor for Breach
by Lessee, shall automatically terminate any sublease or lesser estate in the
Premises; provided. however, Lessor shall, in the event of any such surrender,
termination or cancellation, have the option to continue any one or all of any
existing subtenancies. Lessor's failure within ten (10) days following any such
event to make a written election to the contrary by written notice to the holder
of any such lesser interest, shall constitute Lessor's election to have such
event constitute the termination of such interest.
36. Consents.
(a) Except for Paragraph 33 hereof (Auctions) or as otherwise
provided herein, wherever in this Lease the consent of a Party is required to an
act by or for the other Party, such consent shall not be unreasonably withheld
or delayed. Lessor's actual reasonable costs and expenses (including but not
limited to architects', attorneys', engineers' and other consultants' fees)
incurred in the consideration of. or response to. a request by Lessee for any
Lessor consent pertaining to this Lease or the Premises, including but not
limited to consents to an assignment a subletting or the presence or use of a
Hazardous Substance. shall be paid by Lessee to Lessor upon receipt of an
invoice and supporting documentation therefor. In addition to the deposit
described in Paragraph 12.2(e), Lessor may. as a condition to considering any
such request by Lessee, require that Lessee deposit with Lessor an amount of
money (in addition to the Security Deposit held under Paragraph 5) reasonably
calculated by Lessor to represent the cost Lessor will incur in considering and
responding to Lessee's request. Any unused portion of said deposit shall be
refunded to Lessee without interest. Lessor's consent to any act. assignment of
this Lease or subletting of the Premises by Lessee shall not constitute an
acknowledgment that no Default or Breach by Lessee of this Lease exists. nor
shall such consent be doomed a waiver of any then existing Default of Breach,
except as may be otherwise specifically stated in writing by Lessor at the time
of such consent.
(b) All conditions to Lessor's consent authorized by this Lease are
acknowledged by Lessee as being reasonable. The failure to specify herein any
particular condition to Lessor's consent shall not preclude the impositions by
Lessor at the time of consent of such further or other conditions as are then
reason-able with reference to the particular matter for which consent is being
given.
Initials: ____
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37. Guarantor.
37.1 Form of Guaranty. It there are to be any Guarantors of this Lease
per Paragraph 1.11, the form of the guaranty to be executed by each such
Guarantor shall be in the form most recently published by the American
Industrial Real Estate Association. and each such Guarantor shall have the same
obligations as Lessee under this lease, including but not limited to the
obligation to provide the Tenancy Statement and information required in
Paragraph 16.
37.2 Additional Obligations of Guarantor. It shall constitute a Default
of the Lessee under this Lease if any such Guarantor fails or refuses. upon
reason-able request by Lessor to give: (a) evidence of the due execution of the
guaranty called for by this Lease. including the authority of the Guarantor (and
of the party signing on Guarantor's behalf) to obligate such Guarantor on said
guaranty, and resolution of its board of directors authorizing the making of
such guaranty, together with a certificate of incumbency showing the signatures
of the persons authorized to sign on its behalf. (b) current financial
statements of Guarantor as may from time to time be requested by Lessor. (c) a
Tenancy Statement. or (d) written confirmation that the guaranty is still in
effect.
38. Quiet Possession. Upon payment by Lessee of the rent for the Promises and
the performance of all of the covenants, conditions and provisions on Lessee's
part to be observed and performed under this Lease. Lessee shall have quiet
possession of the Premises for the entire term hereof subject to all of the
provisions of this Lease.
39. Options.
39.1 Definition. As used in this Lease. the word "Option" has the
following meaning: (a) the right to extend the term of this Lease or to renew
this Lease or to extend or renew any lease that Lessee has on other property of
Lessor: (b) the right of first refusal to lease the Premises or the right of
first offer to lease the Premises or the right of first refusal to lease other
property of Lessor or the right of first offer to lease other property of
Lessor: (c) the right to purchase the Premises, or the right of first refusal to
purchase the Premises. or the right of first offer to purchase the Promises. or
the right to purchase other property of Lessor, or the right of first refusal to
purchase other property of Lessor. or the right of first offer to purchase other
property of Lessor.
39.2 Options Personal to Original Lessee. Each Option granted to Lessee
in this Lease is personal to the original Lessee named in Paragraph 1.1 hereof,
and cannot be voluntarily or involuntarily assigned or exercised by any person
or entity other than said original Lessee while the original Lessee is in full
and actual possession of the Promises and without the intention of thereafter
assigning or subletting. The Options, if any, herein granted to Lessee am not
assignable, either as a pan of an assignment of this Lease or separately or
apart therefrom, and no Option may be separated from this Lease in any manner by
reservation or otherwise.
39.3 Multiple Options. In the event that Lessee has any multiple Options
to extend or renew this Lease, a later option cannot be exercised unless the
prior Options to extend or renew this Lease have been validly exercised.
39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary: (i) during
the period commencing with the giving of any notice of Default under Paragraph
13.1 and continuing until the noticed Default is cured, or (ii) during the
period of time any monetary obligation due Lessor from Lessee is unpaid (without
regard to whether notice thereof is given Lessee), or (iii) during the time
Lessee is in Breach of this Lease, or (iv) in the event that Lessor has given to
Lessee three (3) or more notices of separate Defaults under Paragraph 13.1
during the twelve (12) month period immediately preceding the exercise of the
Option, whether or not the Defaults are cured.
(b) The period of time within which an Option may be exercised shall
not be extended or enlarged by reason of Lessee's inability to exercise an
Option because of the provisions of Paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect, notwithstanding Lessee's due and
timely exercise of the Option, if, after such exercise and during the term of
this Lease, (i) Lessee fails to pay to Lessor a monetary obligation of Lessee
for a period of thirty (30) days after such obligation becomes due (without any
necessity of Lessor to give notice thereof to Lessee), or (ii) Lessor gives to
Lessee three (3) or more notices of separate Defaults under Paragraph 13.1
during any twelve (12) month period, whether of not the Defaults are cured, or
(iii) if Lessee commits a Breach of this Lease.
40. Rules and Regulations. Lessee agrees that it will abide by, and keep and
observe all reasonable rules and regulations ("Rules and Regulations") which
Lessor may make from time to time for the management, safety, care, and
cleanliness of the grounds, the parking and unloading of vehicles and the
preservation of good order, as well as for the convenience of other occupants or
tenants of the Building and the Industrial Center and their invitees.
41. Reservations. Lessor reserves the right, from time to time, to grant,
without the consent or joinder of Lessee, such easements, rights of way, utility
raceways, and dedications that Lessor deems necessary, and to cause the
recordation of parcel maps and restrictions, so long as such easements, rights
of way, utility race-ways, dedications, maps and restrictions do not reasonably
interfere with the use of the Premises by Lessee. Lessee agrees to sign any
documents reasonably requested by Lessor to effectuate any such easement rights,
dedication, map or restrictions.
42. [deleted]
43. Performance Under Protest. It at any time a dispute shall arise as to any
amount or sum of money to be paid by one Party to the other under the provisions
hereof, the Party against whom the obligation to pay the money is asserted shall
have the right to make payment "under protest" and such payment shall not be
regarded as a voluntary payment and there shall survive the right on the part of
said Party to institute suit for recovery of such sum. If it shall be adjudged
that
Initials: ____
____
-17-
there was no legal obligation on the pan of said Party to pay such sum or any
part thereof, said Party shall be entitled to recover such sum or so much
thereof as it was not legally required to pay under the provisions of this
Lease.
44. Authority. If either Party hereto is a corporation, trust, or general or
limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute and
deliver this Lease on its behalf. It Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after request by Lessor,
deliver to Lessor evidence satisfactory to Lessor of such authority.
45. Conflict. Any conflict between the printed provisions of this Lease and
the typewritten or handwritten provisions shall be controlled by the typewritten
or hand written provisions.
46. Offer. Preparation of this Lease by either Lessor or Lessee or Lessor's
agent or Lessee's agent and submission of same to Lessee or Lessor shall not be
deemed an offer to lease. This Lease is not intended to be binding until
executed and delivered by all Parties hereto.
47. Amendments. This Lease may be modified only in writing, signed by the
parties in interest at the time of the modification. The Parties shall amend
this Lease from time to time to reflect any adjustments that are made to the
Base Rent or other rent payable under this Lease. As long as they do not
materially change Lessee's obligations hereunder, Lessee agrees to make such
reasonable non-monetary modifications to this Lease as may be reasonably
required by an institutional Insurance company or pension plan Lender In
connection with the obtaining of normal financing or refinancing of the property
of which the Promises are a part.
48. Multiple Parties. Except as otherwise expressly provided herein, if more
than one person or entity Is named herein as either Lessor or Lessee, the
obligations of such multiple parties shall be the joint and several
responsibility of all persons or entities named herein as such Lessor or Lessee,
Initials: ____
____
-18-
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND
PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE
AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE
PREMISES.
IF THIS LEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR
YOUR ATTORNEYS REVIEW AND APPROVAL. FURTHER, EXPERTS SHOULD
BE CONSULTED TO EVALUATE THE CONDITION OF THE PROPERTY FOR
THE POSSIBLE PRESENCE OF ASBESTOS, UNDERGROUND STORAGE TANKS
OR HAZARDOUS SUBSTANCES. NO REPRESENTATION OR RECOMMENDATION
IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
OR BY THE REAL ESTATE BROKERS OR THEIR CONTRACTORS, AGENTS
OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT. OR
TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH
IT RELATES; THE PARTIES SHALL RELY SOLELY UPON THE ADVICE OF
THEIR OWN COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF
THIS LEASE. IF THE SUBJECT PROPERTY IS IN A STATE OTHER THAN
CALIFORNIA, AN ATTORNEY FROM THE STATE WHERE THE PROPERTY IS
LOCATED SHOULD BE CONSULTED.
The parties hereto have executed this Lease at the place and on the dates
specified above their respective signatures.
Executed at: ______________________________________________________ Executed at: ______________________________________________
on: _______________________________________________________________ on: _______________________________________________________
By LESSOR: By LESSEE:
MICRO LINEAR CORPORATION ARTEST CORPORATION,
a Delaware corporation a California corporation
Name Printed: _____________________________________________________ Name Printed: _____________________________________________
Title: ____________________________________________________________ Title: ____________________________________________________
By: _______________________________________________________________ By: _______________________________________________________
Name Printed: _____________________________________________________ Name Printed: _____________________________________________
Title: ____________________________________________________________ Title: ____________________________________________________
Address: __________________________________________________________ Address: __________________________________________________
___________________________________________________________________ ___________________________________________________________
Telephone: ( ) _______________________________________________ Telephone: ( ) _______________________________________
NOTE: These forms are often modified to meet changing requirements of law and
needs of the industry. Always write or call to make sure you are utilizing
the most current form: AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION, 000
Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000. (000) 000-0000.
Initials: ____
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-19-
FIRST ADDENDUM TO STANDARD INDUSTRIAL/
COMMERCIAL MULTI-TENANT LEASE - GROSS
THIS FIRST ADDENDUM TO STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE
(this "Addendum") is made by and between Micro Linear Corporation, a Delaware
corporation ("Lessor") and Artest Corporation, a California corporation
("Lessee"), to be a part of that certain lease (the "Lease") of even date
herewith between Lessor and Lessee concerning premises located at 2050 and 0000
Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx (the "Premises"). Lessor and Lessee agree
that, notwithstanding anything to the contrary in the Lease, the Lease is hereby
modified and supplemented as set forth below.
1. Term. The Lease shall commence (the "Commencement Date") on the date
----
of the "Closing" of that certain Agreement for Purchase and Sale of Assets by
and between Lessor and Lessee dated as of the date hereof.
2. Common Areas. The Common Areas shall be limited to the lobby,
------------
restrooms, lunch rooms and hallways leading directly between the foregoing and
the Premises in each Building, as well as the parking areas and exterior
sidewalks of the Industrial Center.
3. Hazardous Materials. Lessee shall not use, store or bring onto the
-------------------
Premises or the Industrial Center any Hazardous Materials other than those of a
type and in quantities used in the Premises by Lessor immediately before the
Commencement Date.
4. Utilities. Lessor shall provide to the Premises electricity, water,
---------
heating, ventilating and air conditioning and garbage disposal services at the
levels provided to the Premises immediately prior to the Commencement Date. In
addition, Lessor shall provide, at Lessee's cost, telephone service to the
Premises at the level provided to the Premises immediately prior to the
Commencement Date. Lessee shall pay any invoices for such telephone services
within ten (10) days of receipt thereof. If such telephone service is not
separately metered or billed to the Premises, Lessee shall pay to Lessor a
reasonable portion to be determined by Lessor of any jointly metered or billed
within ten (10) days of Lessee's receipt of an invoice therefor from Lessor. If,
in Lessor's reasonable determination, Lessee uses any utilities or services
(other than telephone services) in excess of levels used immediately before the
Commencement Date, Lessor shall have the right to charge Lessee with the cost of
any excess usage as reasonably calculated by Lessor, and Lessee shall pay such
charges within ten (10) days of receipt of an invoice therefor. Lessor shall not
be liable for the interruption of any such services or utilities for causes
beyond Lessor's reasonable control.
5. Annual Negotiations. On or about each anniversary of the Commencement
-------------------
Date, the parties shall meet upon the request of either party to discuss the
possibility of increasing or decreasing the size of the Premises. In the event
that the parties agree to change the size of the Premises, the Base Rent,
Lessee's Share and Lessee's percentage of parking spaces shall be equitably
adjusted based on any adjustment to the size of the Premises.
6. Lessor's Termination Right. In the event that (a) the agreement
--------------------------
between Lessor or Lessee with respect to Lessee's performance of production,
test and shipping functions for Lessor terminates for any reason, or (b) Lessee
for any reason ceases carrying out such functions in the Premises, Lessor shall
have the right at any time thereafter to terminate this Lease by delivering at
least thirty (30) days prior written notice hereof to Lessee.
7. Effect of Addendum. All terms with initial capital letters used herein
------------------
as defined terms shall have the meanings ascribed to them in the Lease unless
specifically defined herein. In the event of any inconsistency between this
Addendum and the Lease, the terms of this Addendum shall prevail.
LESSOR: LESSEE:
MICRO LINEAR CORPORATION, ARTEST CORPORATION,
a Delaware corporation a California corporation
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxx Xxx
-------------------------------- ------------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxx Xxx
------------------------------ ----------------------------
Its: President and CEO Its: President and CEO
------------------------------- -----------------------------
Initials: ____
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EXHIBIT A1 - Floor plan
[FLOOR PLAN]
EXHIBIT A2 - Floor plan
[FLOOR PLAN]
Addendum to Sub-lease:
At the termination of the sub-lease Artest will remove all of Artest's
assets and return that portion of the building which Artest has occupied to MLIN
in an "As is" condition.
Exhibit D
[*]
* Confidential treatment has been requested with respect to certain portions of
this exhibit. Such portions are marked with a "[*]" in place of the redacted
language. Omitted portions are filed separately with the Securities and
Exchange Commission.
