NORTHPOINT CENTRE OFFICE LEASE AGREEMENT By and Between Connecticut General Life Insurance Company, a Connecticut corporation, on behalf of its Separate Account R (“Landlord”) and Wintegra, Inc. (“Tenant”) DATED: _____________________
NORTHPOINT
CENTRE
By
and
Between
Connecticut
General Life Insurance Company, a Connecticut corporation,
on
behalf of its Separate Account R
(“Landlord”)
and
Wintegra,
Inc.
(“Tenant”)
DATED:
_____________________
REFERENCE
DATA
This
Reference Data summarizes basic lease information. It is not part of the
Lease.
|
Item
|
Section
|
|
|
Reference
|
||
|
Commencement
Date
|
On
or about March 1, 2004
|
2.1
|
|
Leased
Premises
|
5,449
sq. ft. of Net Rentable Area
|
1.1
|
|
Term
|
Thirty-six
(36) Months
|
2.1
|
|
Tenant’s
Pro Rata Share
|
3.6%
|
1.4
|
|
Base
Rental
|
$9.10
NNN Average
|
3.2
|
|
Additional
Rental
|
$8.90
(estimate for 2004)
|
3.3
|
|
Security
Deposit
|
$8,173.00
|
3.4
|
|
Use
|
General
Office
|
4.1
|
|
Options
|
Renewal
Option
|
Exhibit
“E”
|
|
Additional
Agreements
|
Exhibit
“E”
|
|
|
Tenant
Improvement/Construction Agreement
|
Exhibit
“G”
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|
TABLE
OF CONTENTS
|
Section
or
Exhibit No. |
Description
|
Page
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ARTICLE
I
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|
DEFINITIONS
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|
1.1
|
Leased
Premises and Related Terms
|
1
|
|
1.2
|
Lease
Year
|
3
|
|
1.3
|
Base
Operating Cost
|
3
|
|
1.4
|
Proportionate
Share
|
5
|
|
1.5
|
Hazardous
Materials
|
5
|
|
ARTICLE
II
|
||
|
TERM
|
||
|
2.1
|
Lease
Term
|
5
|
|
ARTICLE
III
|
||
|
RENT
|
||
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3.1
|
Rental
Payments
|
6
|
|
3.2
|
Base
Rental
|
7
|
|
3.3
|
Additional
Rental
|
7
|
|
3.4
|
First
Month’s Rent and Security Deposit
|
8
|
|
ARTICLE
IV
|
||
|
TENANT’S
DUTIES
|
||
|
4.1
|
Use
|
8
|
|
4.2
|
Repairs,
Maintenance, and Cleaning
|
9
|
|
4.3
|
Compliance
with Laws; Americans With Disabilities Act
|
10
|
|
4.4
|
Assignment
and Subletting
|
10
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|
4.5
|
Rules
and Regulations
|
12
|
|
4.6
|
Alterations
by Tenant
|
12
|
|
4.7
|
Taxes
Payable By Tenant
|
13
|
|
4.8
|
Condition
of Leased Premises
|
14
|
|
4.9
|
Limits
on Hazardous Materials
|
14
|
|
ARTICLE
V
|
||
|
LANDLORD’S
RIGHTS AND DUTIES
|
||
|
5.1
|
Right
of Access by Landlord
|
15
|
|
5.2
|
Services
to be Provided by Landlord
|
15
|
|
5.3
|
Limited
Patrol Service
|
16
|
|
5.4
|
Keys
|
17
|
|
5.5
|
Tenant
Identification and Signage
|
17
|
|
5.6
|
Lobby
Directory
|
17
|
|
5.7
|
Repairs
by Landlord
|
17
|
|
ARTICLE
VI
|
||
|
INSURANCE,
DAMAGE, AND CONDEMNATION
|
||
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6.1
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Indemnity
and Hold Harmless
|
17
|
|
6.2
|
Property
Insurance by Landlord
|
18
|
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6.3
|
Property
Insurance by Tenant
|
18
|
|
6.4
|
Liability
Insurance
|
18
|
|
6.5
|
General
Insurance Requirements
|
19
|
|
6.6
|
Waiver
of Subrogation
|
19
|
|
6.7
|
Fire
or Other Casualty
|
19
|
|
6.8
|
Condemnation
and Loss or Damage
|
20
|
|
ARTICLE
VII
|
||
|
DEFAULT
|
||
|
7.1
|
Default
by Tenant
|
20
|
|
7.2
|
Holding
Over
|
22
|
|
7.3
|
Non-Waiver
|
22
|
|
7.4
|
Attorney’s
Fees
|
22
|
|
7.5
|
Landlord’s
Lien
|
23
|
|
7.6
|
Default
by Landlord
|
23
|
|
7.7
|
Limitation
on Liability of Landlord
|
24
|
|
ARTICLE
VIII
|
||
|
GENERAL
|
||
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8.1
|
The
Landlord’s Mortgagee
|
21
|
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8.2
|
Estoppel
|
21
|
|
8.3
|
Notice
|
21
|
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8.4
|
Parking
|
22
|
|
8.5
|
Miscellaneous
Provisions
|
22
|
|
8.6
|
Anti-Terrorism
Representations
|
24
|
|
8.7
|
Other
|
25
|
|
EXHIBIT
“A”
|
DESCRIPTION
OF LAND
|
|
EXHIBIT
“B”
|
PLAT
OF LEASED PREMISES
|
|
EXHIBIT
“C”
|
BUILDING
RULES AND REGULATIONS
|
|
EXHIBIT
“D”
|
PARKING
RULES AND REGULATIONS
|
|
EXHIBIT
“E”
|
ADDITIONAL
AGREEMENTS
|
|
EXHIBIT
“F”
|
COMMENCEMENT
DATE DECLARATION
|
|
EXHIBIT
“G”
|
TENANT
IMPROVEMENT/CONSTRUCTION AGREEMENT
|
|
EXHIBIT
“H”
|
ERISA
PARTIES IN INTEREST LIST SEPARATE ACCOUNT
R
|
LEASE
AGREEMENT
|
THE
STATE OF TEXAS
|
§
|
|
§
|
|
|
COUNTY
OF XXXXXX
|
§
|
THIS LEASE AGREEMENT (“Lease”) is made and entered into as of the date indicated below by and between Connecticut General Life Insurance Company, a Connecticut corporation, on behalf of its Separate Account R (“Landlord”); Wintegra, Inc., a Delaware Corporation (“Tenant”). Subject to and upon the terms, provisions, and conditions set forth in this Lease, and each in consideration of the duties, covenants, and obligations of the other hereunder, Landlord does lease, demise, and let the Leased Premises (defined below) to Tenant, and Tenant does lease, demise, and take the Leased Premises from Landlord.
WITNESETH:
ARTICLE
I
DEFINITIONS
Unless
otherwise clearly indicated by the context, the following terms shall have
the
meanings specified below when they are used in the Lease:
| 1.1 |
Leased
Premises and Related Terms.
|
The
term
“Land” shall mean the real property described in Exhibit
“A”
which is
attached to this Lease and incorporated by reference.
The
term
“Building” shall mean the Land and all improvements located on the Land,
including the office and retail building and the parking Parking Areas now
located on the Land.
The
term
“Leased Premises” shall mean the following described office space located within
the Building:
Approximately
5,449 square feet of Net Rentable Area (defined below) being Suite 215, located
on the 2nd.
floor
of the Building, as reflected on the floor plan(s) attached to and made a part
of this Lease as Exhibit
“B”.
The
term
“Net Rentable Area,” as used herein, shall mean: (i) in the case of a floor
leased to a single tenant, all floor area measured from the inside surface
of
the outer glass line of the Building to the inside surface of the opposite
outer
glass line, excluding only Service Areas and General Common Areas (defined
below), plus an allocation of the square footage of the General Common Areas;
and (ii) in the case of a floor leased to more than one tenant, all floor areas
within the inside surface of the outer glass line of the Building enclosing
the
Leased Premises and measured to the midpoint of demising walls {i.e., walls
separating the Leased Premises from areas leased to or held for lease to other
tenants, from On-Floor Common Areas (defined below) and from General Common
Areas}, excluding only Service Areas, plus an allocation of the square footage
of the General Common Areas and an allocation of the square footage of the
On-Floor Common Areas. No deductions from Net Rentable Area shall be made for
columns or projections necessary to the Building. The Net Rentable Area has
been
calculated based on BOMA standards.
1
“Service
Areas” shall mean the areas within (and measured from the midpoint of the walls
enclosing) the Building’s stairs, fire towers, elevator shafts, flues, vents,
stacks, pipe shafts and vertical ducts. Areas for the specific use of Tenant
and
installed at the request of Tenant, such as special stairs or elevators, are
not
included within the definition of Service Areas.
“General
Common Areas” shall mean those areas within (and measured from the midpoint of
the walls enclosing) the Building’s elevator machine rooms, main mechanical and
electrical rooms, public lobbies, management office and other areas not leased
or held for lease within the Building but which are necessary or desirable
for
the proper utilization of the Building or to provide customary services to
the
Building. The allocation of the square footage of the General Common Areas
shall
be equal to the total General Common Areas within the Building multiplied by
a
fraction, the numerator of which is the Net Rentable Area of the Leased Premises
(excluding only the allocation of the General Common Areas) and the denominator
of which is the Net Rentable Area (excluding only the General Common Areas)
of
all office space leased or held for lease in the Building.
“On-Floor
Common Areas” shall mean all areas within (and measured from the midpoint of the
walls enclosing) public corridors, elevator foyers, restrooms, mechanical rooms,
janitor closets, telephone and equipment rooms, and other similar facilities
for
use of all tenants on the floor on which the Leased Premises are located. In
the
case of a floor leased to more than one tenant, the allocation of the square
footage of the On-Floor Common Areas on said floor shall be equal to the total
On-Floor Common Areas on said floor multiplied by a fraction, the numerator
of
which is the Net Rentable Area of the portion of the Leased Premises (excluding
the allocation of the General Common Areas and excluding the allocation of
the
On-Floor Common Areas) and the denominator of which is the Net Rentable Area
(excluding the allocation of the General Common Areas and excluding the
allocation of the On-Floor Common Areas) of all office space leased or held
for
lease on said floor.
The
Net
Rentable Area of the Leased Premises has been calculated on the basis of the
foregoing definition and a multi-tenant floor add-on factor of 15% and is
stipulated to be 5,449 square feet.
| 1.2 |
Lease
Year.
The term “Lease Year” shall mean the twelve (12) month period beginning
January 1 and ending December 31 of the applicable calendar
year.
|
1.3 Base
Operating Cost.
The
term “Base Operating Cost” shall mean the aggregate of all expenditures incurred
by Landlord to maintain and operate the Building in a first class manner. All
such expenses shall be determined in accordance with generally accepted
accounting principles which shall be consistently applied. Base Operating Cost,
as used in this Lease, shall mean all expenses, costs, and disbursements of
every kind and nature which Landlord shall pay or become obligated to pay
because of or in connection with the ownership and operation of the Building
and
the Parking Areas, including but not limited to, the following:
(a) Wages,
salaries and any ancillary expenses of all employees actually engaged in
operation and maintenance of the Building and the Parking Areas, including
taxes, insurance and benefits relating thereto.
(b) All
supplies and materials used in operation and maintenance of the Building and
the
Parking Areas.
2
(c) Cost
of
all utilities for the Building and Parking Areas, including, but not limited
to,
electric, gas, water, heating lighting, air conditioning and ventilating the
Building as provided pursuant to Article 5.2, below.
(d) Cost
of
all maintenance, service, and operating agreements for the Building and Parking
Areas and the equipment therein, including, but not limited to security service,
window cleaning, elevator maintenance, landscaping, janitorial service and
Parking Area operation.
(e) The
gross
cost of casualty and liability insurance applicable to the Building and Parking
Areas and Landlord’s personal property used in connection therewith as provided
in Article VI below.
(f) All
taxes
and assessments and governmental charges whether federal, state, county or
municipal, and whether they be by taxing districts or authorities presently
taxing the Leased Premises or by others, subsequently created or otherwise,
and
any other taxes and assessments attributable to the Building and Parking Areas
or their operation, excluding, however, federal and state taxes on
income.
(g) Cost
of
repairs and general maintenance undertaken by Landlord in its sole discretion
on
or of the Building and Parking Areas (excluding only: (i) repairs and general
maintenance to the structure, foundation, and exterior walls of the Building
and
Parking Areas; (ii) repairs and general maintenance paid by proceeds of
insurance or by Tenant or other third parties; and (iii) alterations
attributable solely to tenants of the Building other than Tenant).
(h) Amortization
of the cost of installation of capital investment items which are installed
for
the purpose of reducing operating expenses or which may be required by
governmental authority. All such costs shall be amortized over the reasonable
life of the capital investment item, together with interest at the rate of
ten
percent (10%) per annum on the unamortized balance, with the reasonable life
and
amortization schedule being determined in accordance with generally accepted
accounting principles and in no event to extend beyond the reasonable life
of
the Building or Parking Areas. In the case of installations for the purpose
of
reducing operating expenses, Landlord at Tenant’s request shall provide cost
justifications showing that the anticipated reduction in operating expenses
is
greater than the annual amortization amount related to the capital investment
item.
(i) All
commercially reasonable management fees incurred by Landlord for the management
of the Building and Parking Areas.
(j) Landlord’s
central accounting costs applicable to the Land, the Building and the Parking
Areas, together with any costs incurred by Landlord to prepare any audit
required pursuant to the terms of this Lease.
(k) Any
costs
incurred by Landlord to furnish any specific service or repair required by
Section 5.2 of this Lease.
(l) Any
and
all other expenses paid in connection with the operation of the Building and
the
Parking Areas which are properly chargeable against the income
therefrom.
3
Tenant,
at Tenant’s option and expense, may audit
Landlord’s accounts to substantiate any costs claimed.
If
any of
the factors included in “Base Operating Cost” are not payable, billed, or
otherwise due so as to allow an accurate calculation of said factors annually
(e.g., ad valorem taxes and long-term contracts), Landlord, in its sole
discretion, may estimate and prorate said factors on an annual basis, and said
factors shall be properly adjusted by Landlord when they actually become due
and
payable.
Notwithstanding
any other provision in this Lease to the contrary, it is agreed that in the
event the Building is not fully occupied during any calendar year or in the
event the entire Building is not provided with Building standard services during
any calendar year, an adjustment shall be made in computing such component
of
the Base Operating Cost for such year so that the actual operating expenses
shall be computed for such year as though the Building had been fully occupied
during such year and as though the entire Building had been provided with
Building standard services during such year.
Notwithstanding
anything to the contrary in this Section 1.3, Base Operating Cost shall not
include any costs incurred in the replacement of capital investment items except
those made for the purposes of reducing operating expenses, nor Landlord’s home
office expense nor specific costs specially billed to specific tenants nor
commissions paid for the leasing or renting of space in the
Building.
1.4 Proportionate
Share.
Tenant’s “Proportionate Share” of the Base Operating Cost or other charges to be
borne by Tenant in accordance with the terms hereof shall be the amount obtained
by multiplying the total sum of such Base Operating Cost or other charges by
the
percentage obtained by dividing the Net Rentable Area in the Leased Premises
(5,449) by the total number of square feet of Net Rentable Area in all office
space leased or held for lease in the Building (149,894) (such percentage being
referred to as Tenant’s “Pro Rata Share”). Tenant’s Pro Rata Share is stipulated
to be 3.6%.
1.5 Hazardous
Materials.
The
term “Hazardous Materials” shall mean any substance, materials and wastes that
are or become regulated, restricted or prohibited as hazardous, toxic or
polluting substances under any applicable federal, state or local law,
regulation, ordinance or order.
ARTICLE
II
TERM
2.1 Lease
Term.
Subject
to and upon the terms and conditions set forth in this Lease, or in any exhibit
attached hereto, the primary term of this Lease shall commence on the
“Commencement Date” as defined below, and shall terminate on the Last days of
the 36 month of the Lease Term. The “Lease Term” of this Lease shall be the
primary term specified in this Section 2.1, unless renewed or otherwise extended
or earlier terminated pursuant to the terms and provisions of this Lease. The
Commencement Date of this Lease shall be the date the Leased Premises are deemed
to be ready for occupancy by Tenant upon the first to occur of (i) the date
that
there is delivered to Tenant a certificate of substantial completion of the
improvements in and to the Leased Premises from Landlord’s architect, which
certificate shall be binding and conclusive upon Tenant; or (ii) the date on
which Tenant, or anyone claiming by, through or under Tenant, occupies any
portion of the Leased Premises. Within five (5) days after the Commencement
Date, Tenant will, at the request of Landlord, execute a Commencement Date
Declaration in substantially the form attached hereto as Exhibit
“F”.
4
ARTICLE
III
RENT
3.1 Rental
Payments.
(a) Commencing
on the Commencement Date and continuing thereafter throughout the Lease Term,
Tenant agrees to the Base Rental as described in Section 3.2, plus Tenant’s
Forecast Additional Rental and Tenant’s Additional Rental as described in
Section 3.3. The Base Rental together with Tenant’s Forecast Additional Rental
shall be due and payable in equal monthly installments, in advance, on the
first
day of each calendar month during the Lease Term. Tenant agrees to pay such
rent
to Landlord at Landlord’s address for notice as provided herein (or such other
address as may be designated by Landlord from time to time). If the term of
the
Lease is deemed to have commenced on a date other than the first date of a
calendar month, the expiration date of the primary term shall be extended so
as
to give effect to the full term specified in 2.1 above in addition to the
remainder of the calendar month during which the Lease is deemed to have
commenced.
(b) If
the
Lease Term as described above commences on other than the first day of a
calendar month or terminates on other than the last day of a calendar month,
then the installments of Base Rental and Tenant’s Forecast Additional Rental for
such month or months shall be prorated and the installment or installments
so
prorated shall be paid in advance. The payment for such prorated month shall
be
calculated by multiplying the monthly installment by a fraction, the numerator
of which shall be the number of days of the Lease Term occurring during said
commencement or termination month, as the case may be, and the denominator
of
which shall be the total number of days occurring in said commencement or
termination month. Also, if the Lease Term commences or terminates on other
than
the first day of a calendar year, Tenant’s Additional Rental (defined below)
shall be prorated for such commencement or termination year, as the case may
be,
by multiplying each by a fraction, the numerator of which shall be the number
of
days of the Lease Term during the commencement or termination year, as the
case
may be, and the denominator of which shall be 365, and the calculation described
in Section 3.3(c) below shall be made as soon as possible after the termination
of this Lease. Landlord and Tenant agree that the provisions relating to said
calculation shall survive the termination of this Lease.
(c) Tenant
shall pay all rent and other sums of money as same shall become due from and
payable by Tenant to Landlord under this Lease at the times and in the manner
provided in this Lease, without demand, set-off or counterclaim.
(d) Tenant
shall pay all applicable bank charges incurred by Landlord plus Twenty-five
and
No/100 Dollars ($25.00) for each returned check. Tenant’s right to possession
and all of Landlord’s obligations under this Lease are expressly contingent on
the prompt payment of rent, and the use of the Leased Premises is obtained
only
on the condition that rent is paid on time. Payment of rent by Tenant shall
be
an independent covenant. In the event Tenant has not timely paid rent or other
sums due on two or more occasions, or in the event a check is returned for
insufficient funds or no account, Landlord may thereafter require that all
rent
and other sums due be paid by cashier’s check, certified check, or money order,
without further notice.
(e) In
the
event that Tenant fails to pay any installment of Base Rental, or any Additional
Rental or other sums of whatever nature owed by Tenant to Landlord under this
Lease within ten (10) days of the date such amount is due, there shall be added
to such unpaid amount a late charge of ten percent (10%) of the past due amount
in order to compensate Landlord for the extra administrative expenses associated
with the collection of such late payment. Tenant agrees to pay Landlord interest
on any past due amount owed under this Lease at the maximum lawful rate allowed
by applicable law from the date due until paid.
5
3.2 Base
Rental.
Throughout the Lease Term, Tenant shall pay to Landlord a base annual rental
(“Base Rental”) in an amount of $9.10 Net Average per square foot of Net
Rentable Area within the Leased Premises per year, or an amount as outlined
below per calendar month commencing on the Commencement Date:
|
Months
1- 36
|
$9.10
per square foot
|
3.3 Additional
Rental.
(a) Commencing
with the Lease Year in which the Commencement Date occurs and continuing
thereafter for each Lease Year during the Lease Term, Landlord shall present
to
Tenant prior to the beginning of said Lease Year (or for the first Lease Year,
prior to the commencement of said term) a statement of Tenant’s Forecast
Additional Rental (defined below). In Landlord’s best estimate as of the date of
this Lease, Tenant’s Forecast Additional Rental for the first Lease Year is
estimated to be $8.90 per square foot of Net Rentable Area in the Leased
Premises per year , which shall not be increased during the calendar year of
2004. Tenant Agrees to pay Tenant’s Forecast Additional Rental according to the
terms of Section 3.1 (that is, in equal monthly installments in advance).
“Tenant’s Forecast Additional Rental” shall mean Landlord’s reasonable estimate
of Tenant’s Additional Rental (defined below).
(b) “Tenant’s
Additional Rental,” as used herein, shall mean for each Lease Year or partial
Lease Years during the Lease Term, Tenant’s Pro Rata Share of the Base Operating
Cost.
(c) Within
one hundred fifty (150) days after the end of the first Lease Year in which
the
Commencement Date occurs and of each Lease Year thereafter during the Lease
Term, or as soon as possible thereafter, Landlord shall provide Tenant a
statement showing the Base Operating Cost for said Lease Year and a statement
prepared by Landlord comparing Tenant’s Forecast Additional Rental with Tenant’s
Additional Rental for said Lease Year. In the event that Tenant’s Forecast
Additional Rental exceeds Tenant’s Additional Rental for said Lease Year,
Landlord shall pay Tenant (in the form of a credit against rentals next due)
an
amount equal to such excess. In the event that Tenant’s Additional Rental
exceeds Tenant’s Forecast Additional Rental for said Lease Year, Tenant shall
pay Landlord, within ten (30) days of receipt of the statement, an amount equal
to such difference.
3.4 First
Month’s Rent and Security Deposit.
At the
time of execution of this Lease, Tenant shall pay in advance the first monthly
installment of Base Rental and Tenant’s Forecast Additional Rental. On the same
date, Tenant shall deposit with Landlord, an amount equal to $8,173.00 (the
“Security Deposit”) as security for Tenant’s faithful performance of Tenant’s
obligations herein contained. If Tenant defaults in any manner in the
performance of Tenant’s obligations contained in this Lease, Landlord may use,
apply or retain all or any portion of the Security Deposit for the payment
of
any rent, or other sum in default or for the payment of any other sum or expense
to which Landlord may become obligated by reason of such default, or to
compensate Landlord for any loss or damage which Landlord may suffer thereby.
Landlord shall not be required to separately account for the Security Deposit
nor to maintain an escrow or separate account therefor. If Tenant performs
all
of Tenant’s obligations under this Lease, the Security Deposit, or so much
thereof as has not been applied by Landlord, shall be returned, without payment
of interest or other increment for its use, to Tenant (or, at Tenant’s option,
the last assignee, if any, of Tenant’s interest hereunder) within sixty (60)
days after the expiration of the Lease Term, and after Tenant has vacated the
Leased Premises. Landlord’s right to so apply the Security Deposit shall in no
manner limit, impair or otherwise affect any of Landlord’s remedies set forth in
this Lease.
6
ARTICLE
IV
TENANT’S
DUTIES
4.1 Use.
(a) The
Leased Premises are to be used and occupied by Tenant (and its permitted
assignees and subtenants) solely for the purpose of general office use and
for
no other purpose.
(b) Tenant
agrees not to commit or suffer to be committed on the Leased Premises any
nuisance or other act or thing against public policy or which violates any
law
or governmental regulation or which is disreputable or which may disturb the
quiet enjoyment of any other tenant of the Building or Parking Areas of which
the Leased Premises are a part.
(c) Tenant
will not use, occupy, or permit the use or occupancy of the Leased Premises
for
any unlawful, disreputable, immoral, or hazardous purpose; or maintain or permit
the maintenance of any public or private nuisance; or do or permit any act
or
thing which may disturb the quiet enjoyment of any other tenant of the Building;
or keep any substance or carry on or permit any operation which might emit
offensive odors into other portions of the Building; or permit anything to
be
done which would increase the fire and extended insurance rate of the Building
or contents or terminate the fire and extended insurance coverage. The Leased
Premises shall not be used for any purpose which would tend to lower the
first-class character of the Building, or create unreasonable elevator loads
or
otherwise interfere with standard Building operations, and Tenant shall not
engage in any activity which is not in keeping with the standards of the
Building.
(d) Tenant
shall not place, install, or operate on the Leased Premises or in any part
of
the Building any engine, refrigerating, heating, or air conditioning apparatus,
stove, or machinery, or conduct mechanical operations, or place or use in or
about the Leased Premises any inflammable, explosive, hazardous, toxic or
odorous solvents or materials without the prior written consent of Landlord.
No
portion of the Leased Premises shall at any time be used for cooking, sleeping
or lodging quarters.
4.2 Repairs,
Maintenance, and Cleaning.
Tenant
shall, at all times during the Lease Term and at Tenant’s sole cost and expense,
keep the Leased Premises and every part thereof in a clean, attractive condition
and in good repair. Tenant will not damage the Leased Premises or any other
portions of the Building. Without limitation on any of the foregoing, Tenant
hereby recognizes that the Building is a first-class office building and as
a
further inducement to Landlord to enter into this Lease, Tenant hereby covenants
and agrees as follows:
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(a)
|
Tenant
will remove all rubbish and other debris from the Leased Premises
at such
times and to such locations as may be specified by Landlord from
time to
time and under conditions approved by
Landlord.
|
|
(b)
|
Tenant
will place no fixtures, furnishings, decorations, or equipment in
the
Leased Premises except such as are satisfactory to and, prior to
being
installed or placed therein, shall have been approved in writing
by
Landlord.
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7
Landlord
shall retain the right to monitor the performance of any such obligations.
If
Landlord determines that Tenant is in default of any of Tenant’s obligations
under this Section 4.2 and if Tenant fails to cure such default within
forty-eight (48) hours after Landlord has provided a written notice of such
default to Tenant, then Landlord shall have the right to cause the same to
be
cured at Tenant’s expense, and Tenant shall reimburse Landlord for all costs
incurred to cure such default plus a charge of fifteen percent (15%) within
ten
(10) days of Tenant’s receipt of Landlord’s statement for such costs. Tenant
shall also be responsible for any damage or injury to any portion of the
building which is caused by Tenant, Tenant’s agents, contractors, employees,
invitees, or visitors, but such damage or injury shall be repaired or replaced
only by Landlord, and Tenant shall repay to Landlord on demand the cost thereof
(plus a charge of fifteen percent (15%). Upon the termination of this Lease,
Tenant will surrender and deliver the Leased Premises in good order and repair
and in the same condition as upon the commencement of this Lease, normal wear
and tear and insured casualty loss excepted. Upon termination of this Lease,
Landlord shall have the right to reenter and resume possession of the Leased
Premises.
4.3 Compliance
with Laws; Americans With Disabilities Act.
Tenant
will comply with and shall cause its visitors, employees, contractors, agents
and invitees to comply with all Federal, state, municipal and other laws,
ordinances, rules, and regulations applicable to the Leased Premises and the
business conducted therein by Tenant. Tenant shall forward to Landlord within
five (5) days of their receipt copies of any notices received from any
governmental authorities with respect to Tenant’s compliance or non-compliance
with any such laws or rules. Tenant shall also comply with the requirements
of
any board of fire underwriters or other similar body now or hereafter
constituted, with any occupancy certificate issued pursuant to any law by any
public officer or officers, as well as the provisions of all recorded documents
affecting the Leased Premises, insofar as any thereof relate to or affect the
condition, use or occupancy of the Leased Premises. Notwithstanding any other
provision in this Lease to the contrary, Landlord agrees to be responsible
for
the requirements effective as of this date under the Americans with Disabilities
Act of 1990 (the “Act”) as it relates to (i) the initial build-out of the Leased
Premises pursuant to this Lease, (ii) the Common Areas, (iii) the Parking Areas
and (iv) structural Building items that Landlord is required to maintain under
the terms of this Lease, but only to the extent that such requirements are
“readily achievable” (as defined in the Act) and would apply to, and be imposed
equally on, any use of the Leased Premises by a typical office space tenant
in
the Building, as opposed to being attributable to Tenant’s unique use occupancy,
or layout of the Leased Premises, including, without limitation, the positioning
of Tenant’s furnishings within such Leased Premises. Tenant, at Tenant’s sole
cost and expense, shall be responsible for compliance with the Act within the
Leased Premises. Landlord and Tenant agree to cooperate fully with each other
to
enable timely compliance with the provisions of this Section. Tenant will
immediately forward to Landlord any notice Tenant receives regarding complaints,
inquiries, or claims by any parties under the Act.
8
4.4 Assignment
and Subletting.
(a) Tenant
shall not assign this Lease or sublet these Leased Premises or any part thereof,
or mortgage, pledge or hypothecate its leasehold interest without the prior
express written permission of Landlord, which permission shall not be
unreasonably withheld, conditioned or delayed, and any attempt to do any of
the
foregoing without the prior express written permission of Landlord shall be
void
and of no effect. This Section 4.4 shall apply to the hypothecation of any
of
Tenant’s interest in the leasehold estate, including, but not limited to, sale
of more than 50% of stock in a non-publicly traded corporate tenant and sale
of
more than 50% of a partnership interest in a partnership tenant. In the event
Tenant should desire to assign this Lease or sublet the Leased Premises or
any
part thereof, Tenant shall give Landlord written notice (which shall specify
all
of the terms of said proposed sublease or assignment as well as the name and
address of each proposed assignee or subtenant, and current and complete
financial statements [including a balance sheet, income statement and copies
of
Federal tax returns for the previous three (3) years] of each proposed assignee
or subtenant) of such desire at least sixty (60) days in advance of the date
on
which Tenant desires to make such assignment or sublease. Landlord shall then
have a period of thirty (30) days following receipt of such notice within which
to notify Tenant in writing that Landlord elects: (1) to terminate this Lease
as
to the space so affected as of the date so specified by Tenant in its notice,
in
which event Tenant will be relieved of all obligations hereunder as to such
space; (2) to permit Tenant to assign this Lease or sublet such space for the
duration specified by Tenant in its notice; or (3) to reject the proposed
assignment or sublease, for reasonable cause, explained to Tenant. If Landlord
should fail to notify Tenant in writing of such election within the thirty
(30)
day period, Landlord shall be deemed to have elected option (3) above. In
addition, no space shall be listed or offered to any broker for listing or
advertisement, nor shall Tenant advertise for subletting without prior written
approval of Landlord.
(b) If
Landlord exercises its right as of the requested effective date of such
assignment, sublease or other transaction to cancel and terminate this Lease
as
set forth in subparagraph (a) above, Landlord shall not be obligated to pay
any
consideration to effect such cancellation as to the portion of the Leased
Premises and the term of Lease with respect to which Landlord has been requested
to permit such assignment, sublease, or other transaction; and if Landlord
elects to cancel and terminate this Lease as to the aforesaid portion of the
Leased Premises and for the term proposed to be assigned or subleased, then
the
rent and other charges payable hereunder shall thereafter be proportionately
reduced. In addition to the right of Landlord to withhold its consent to the
assignment or subletting of the Leased Premises by Tenant as described in
Section 4.4, Landlord shall be deemed to have reasonably withheld its consent
to
any assignment or subletting which would involve a different use of the Leased
Premises, any material alteration of the Leased Premises or any impairment
of
Landlord’s security interest.
(c) In
any
case where Landlord consents to an assignment or sublease of the leasehold,
the
undersigned Tenant will remain liable for the performance of all of the
covenants, duties, and obligations in this Lease, including, without limitation,
the obligation to pay all rent and other sums to be paid, and Landlord shall
be
permitted to enforce the provisions of this instrument against the undersigned
Tenant and/or any assignee or sublessee without demand upon or proceeding in
any
way against any other person. In addition, if Landlord consents to such an
assignment or sublease, Tenant shall enter into a written agreement with
Landlord where it is agreed that any profit realized by Tenant as a result
of
said assignment or sublease (that is, after deducting all of Tenant’s costs
associated therewith, including reasonable brokerage fees and the reasonable
cost of remodeling or otherwise improving the Leased Premises for said assignee
or sublessee) shall be payable to Landlord as it accrues as additional rent
hereunder. If Tenant refuses to execute such written agreement, Landlord shall
be deemed to have reasonably withheld its consent to the proposed assignment
or
sublease.
9
(d) In
any
case where Landlord consents to any such assignment, sublease, or other
transaction, Landlord requires consent to sublease executed by Landlord, Tenant
and Sublessee and may require that Tenant pay to Landlord a reasonable sum
as
attorney’s fees (attorney fees shall not exceed $750.00) or other fees and costs
to change the lobby directory and tenant signage arising incident to such
transaction, and that the assignee or subtenant pay Landlord a reasonable sum
incurred by Landlord in moving the assignee or subtenant in and out of the
Leased Premises should Landlord provide such assistance; however, Landlord
shall
have no obligation to provide such service.
(e) Tenant
shall give Landlord written notice of the consummation of any assignment or
sublease consented to by Landlord; furnish to Landlord copies of all
assignments, transfers, subleases and other documents executed in connection
with such assignment or sublease; and notify Landlord in writing of the date
the
assignee or subtenant takes possession of the Leased Premises or a portion
thereof.
(f) Each
sublessee or assignee shall fully observe all covenants of this Lease,
including, without limitation, the use restrictions of this Lease and provisions
of this Lease pertaining to Tenant signage and alteration of the Leased
Premises, and no consent by Landlord to an assignment or sublease shall be
deemed in any manner to be consent to a use not permitted under this Lease.
Any
consent by Landlord to a particular assignment or sublease shall not constitute
Landlord’s consent to any other or subsequent assignment or sublease, and any
proposed assignment or sublease by an assignee or sublessee of Tenant shall
be
subject to the provisions of this Section 4.4 as if it were a proposed
assignment or sublease by Tenant.
(g) As
a
condition precedent to any actual or deemed consent of Landlord to any
assignment or subletting, Tenant shall cause the assignee or subtenant to take
all action necessary to assure that the statutory and contractual Landlord’s
liens apply to property of the subtenant or assignee to the same or greater
extent, for the same or greater value of property, and with the same or better
priority than Tenant’s property which is subject to such landlord’s liens.
Tenant shall furnish a current UCC Search of the proposed subtenant or assignee
and shall cause the assignee or subtenant to execute financing statements
pursuant to the terms of this Lease.
4.5 Rules
and Regulations.
Tenant
shall perform, observe, and comply with the Rules and Regulations of the
Building, as attached to and made a part of this Lease as Exhibit
“C”
and,
upon written notice thereof to Tenant, any changes, amendments, or additions
as
from time to time shall be established and deemed advisable by Landlord for
tenants of the Building. Landlord shall not have any liability to Tenant for
any
failure of any other tenant or tenants of the Building to comply with such
Rules
and Regulations.
4.6 Alterations
by Tenant.
(a) Tenant
shall not make or allow to be made (except as otherwise specifically provided
in
this Lease) any alterations or physical additions (including fixtures) to be
made in or to the Leased Premises, or place safes, vaults or other heavy
furniture or equipment within the Leased Premises, without first obtaining
the
written consent of Landlord. Tenant shall deliver to Landlord a copy of the
“as-built” plans and specifications for all alterations or physical additions
made with the approval of Landlord in or to the Leased Premises. Tenant agrees
specifically that no food, soft drink or other vending machine will be installed
within the Leased Premises without the written consent of Landlord. Landlord
shall retain the right to monitor the performance of any alterations or
additions to the Leased Premises after the plans and specifications for same
have been approved by Landlord.
10
(b) All
alterations, physical additions or improvements in or to the Leased Premises
(including fixtures) shall, when made, become the property of Landlord and
shall
be surrendered to Landlord upon termination of this Lease; provided, however,
this clause shall not apply to movable trade fixtures, equipment or furniture
owned by Tenant as long as Tenant restores the Leased Premises to its initial
improved condition after the removal of any such property by
Tenant.
(c) Tenant
shall indemnify and hold harmless Landlord from and against all costs (including
attorneys’ fees and costs of suit), losses, liabilities or causes of action
arising out of or relating to any alterations, additions or improvements made
by
Tenant to the Leased Premises, including, but not limited to, any mechanic’s or
materialmen’s liens asserted in connection therewith.
(d) Should
any mechanic’s or other lien or liens be filed against any portion of the
Building by reason of Tenant’s acts or omissions or because of a claim against
Tenant, Tenant shall cause the same to be canceled or discharged of record
by
bond or otherwise within ten (10) days after notice by Landlord. If Tenant
shall
fail to cancel or discharge said lien or liens within said ten-day period,
Landlord may, at its sole option, cancel or discharge the same and, upon
Landlord’s demand, Tenant shall promptly reimburse Landlord for all costs
incurred in canceling or discharging such liens.
4.7 Taxes
Payable By Tenant.
In
addition to all other sums to be paid by Tenant under this Lease, Tenant shall
pay, before delinquency, any and all taxes levied or assessed during the Lease
Term on inventory, equipment, furniture, fixtures and other personal property
located in the Leased Premises, and shall reimburse Landlord upon demand for
any
and all taxes paid or payable by Landlord (other than state and federal personal
or corporate income taxes measured by the net income of Landlord from all
sources) whether or not now customary or within the contemplation of the parties
to this Lease:
(a) upon
or
with respect to the possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Leased Premises, or any
portion thereof;
(b) upon,
measured by or reasonably attributable to the cost or value of Tenant’s
equipment, furniture, fixtures, inventory and other personal property located
in
the Leased Premises or the cost or value of any leasehold improvements within
the Leased Premises; and
(c) upon
this
transaction or any document to which Tenant is a party creating or transferring
an interest or an estate in the Leased Premises.
If
it is
not lawful for Tenant to reimburse Landlord for any of the foregoing taxes,
the
rental payable to Landlord under this Lease shall be revised to net to Landlord
as would have been payable to Landlord before the imposition of any such
tax.
4.8 Condition
of Leased Premises.
Tenant
has full knowledge of all matters pertaining to the Leased Premises, including,
but not limited to, the condition of the tenant improvements therein.
Accordingly, Tenant hereby acknowledges that it is leasing the Leased Premises
on an “AS IS” basis in whatever physical condition the same may be, and Landlord
makes no warranties of any kind or nature, express, implied, or otherwise,
or
any covenants of any kind or nature, in connection therewith. Tenant expressly
waives and disclaims all representations, warranties (express or implied) and
agreements not expressly set forth in this Lease, including but not limited
to
any implied warranty of suitability of the Leased Premises for the intended
commercial use of Tenant.
11
4.9 Limits
on Hazardous Materials.
With
respect to Hazardous Materials, Tenant hereby agrees that:
(a) No
activity will be conducted on the Leased Premises that will produce any
Hazardous Materials;
(b) The
Leased Premises will not be used for the storage of any Hazardous Materials
except for the temporary storage of minimal amounts of such materials that
are
used in the ordinary course of Tenant’s business, provided that such Hazardous
Materials are properly stored in a manner and location meeting all applicable
laws concerning Hazardous Materials and approved in advance and in writing
by
Landlord;
(c) Tenant
will not permit any Hazardous Materials to be brought on to the Leased Premises,
except to the extent authorized in item (b) described above.
If
at any
time during or after the Lease Term the Leased Premises is found to be
contaminated by Hazardous Materials, Tenant agrees to indemnify and hold
Landlord harmless from all claims, demands, actions, liabilities, costs,
expenses, damages and obligations of any nature arising from or as a result
of
the breach of the provisions of this paragraph by Tenant. The foregoing
indemnification shall survive the termination or expiration of this
Lease.
ARTICLE
V
LANDLORD’S
RIGHTS AND DUTIES
5.1 Right
of Access by Landlord.
Landlord or Landlord’s agents, employees or representatives may enter the Leased
Premises during normal business hours, following reasonable notice (except
in
the case of a bona fide emergency or with Tenant’s consent), to (a) inspect the
same, (b) exhibit the same to prospective purchasers, mortgagees or tenants,
(c)
determine whether Tenant is complying with all its obligations hereunder, (d)
supply any service to be provided by Landlord to Tenant hereunder, (e) post
“for
lease” signs of reasonable size upon the Leased Premises during the last six (6)
months of the Lease Term, and (f) make repairs required of Landlord under the
terms hereof or repairs and/or improvements to any adjoining space or utility
services or make repairs, alterations or additions to any other portion of
the
Building as Landlord may deem necessary or proper for the safety, improvement,
or preservation of the Leased Premises or of the Building, as a first class
building. All such work shall be done as promptly as reasonably possible and
so
as to cause as little interference to Tenant as reasonably possible, but Tenant
shall in no event be entitled to any abatement or reduction in rent by reason
thereof. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant’s business, any loss of occupancy
or quiet enjoyment of the Leased Premises resulting from any such actions by
Landlord. Landlord shall at all times have and retain keys with which to unlock
all of the doors in, on and above the Leased Premises (excluding Tenant’s
vaults, safes and similar areas designated in writing by Tenant in advance)
and
Landlord shall have the right to use any and all means which Landlord may deem
proper to open said doors in an emergency to obtain entry to the Leased
Premises, and any entry to the Leased Premises obtained by Landlord by any
of
said means, or otherwise, shall not under any circumstances be construed or
deemed to be a forcible or unlawful entry into or a detainer of the Leased
Premises or an eviction, actual or constructive, of Tenant from the Leased
Premises, or any portion thereof. Landlord shall also have, at all times, the
keys and/or combination necessary to deactivate any on-Premises audible fire
or
burglary alarm system and Landlord shall have the right to turn off the audible
alarm once it has sounded.
12
5.2 Services
to be Provided by Landlord.
Subject
to the rules and regulations referred to below, Landlord shall furnish Tenant
the following services during the Lease Term:
(a) Air
conditioning and heating, at such temperatures in such amounts, and at such
times as are considered by Landlord to be standard office conditions for the
Building during normal business hours for the Building which are 7:00 a.m.
to
6:00 p.m. Monday through Friday, and 8:00 a.m. to 12:00 noon Saturday, but
not
on Sundays and holidays. Overtime service for same shall be furnished to Tenant
only upon the prior request of Tenant and Tenant shall bear the cost $35.00
per
hour per zone which is the standard hourly rate charged to other tenants in
the
Building. Tenant must request additional services 24 hours in advance or before
12:00 noon on the business day before Tenant desires such service, or before
12:00 noon on Fridays for service on Saturdays after 12:00 p.m., Sundays and
Holidays.
(b) Janitorial
service in and about the Building and the Leased Premises, five days per week,
and window washing, as determined by Landlord to be reasonable; provided,
however, if Tenant’s floor coverings or other improvements are other than
Building standard, Tenant shall pay the additional cleaning cost, if any
attributable thereto, plus fifteen percent (15%) to cover cost of
administration.
(c) Proper
facilities to furnish sufficient electrical power for building standard
lighting, typewriters, dictating equipment, calculating machines, and other
machines of similar low electrical consumption, but not including electricity
required for electronic data processing equipment or special lighting in excess
of building standard. Tenant shall pay to Landlord, monthly as billed, such
charges as may be separately metered or as Landlord’s engineer may compute for
any electrical service in excess of that stated above.
(d) Water
for
drinking, lavatory, and toilet purposes.
(e) Replacement
of ballasts and fluorescent lamps in building standard ceiling-mounted fixtures
installed by Landlord and incandescent bulb replacement in all public areas
of
the Building.
No
interruption, malfunction, diminution or termination of any services listed
in
Section 5.2, or elsewhere in this Lease, including any such interruption,
malfunction, diminution or termination that may occur due to governmental
regulations or utility policies, or in the event of Landlord’s decision to
improve any space in the Building in general, so as to maintain the Building
in
a first class manner, shall constitute or be deemed to be a constructive
eviction or disturbance of Tenant’s use, possession or commercial suitability of
the Leased Premises or Building or a breach by Landlord of any of its
obligations hereunder or render Landlord liable for damages (including loss
of
profits) or entitle Tenant to be relieved from any of its obligations hereunder
(including Tenant’s independent obligation to pay rent) or grant Tenant any
right of setoff or recoupment. In the event of any such interruption,
malfunction, diminution or termination, however, Landlord shall use reasonable
diligence to restore such service. In addition to the foregoing, should any
of
the equipment or machinery break down or for any cause cease to function
properly, Tenant shall have no claim for rebate of rent or damages on account
of
an interruption in service occasioned thereby or resulting therefrom. Nothing
in
this Lease shall be construed to require Landlord to furnish telephone service
of any kind or nature to Tenant.
13
5.3 Limited
Patrol Service.
Landlord shall provide limited patrol service for the Building seven (7)
days
per week, and Control Card Access Systems beginning after normal business
hours
at 6:00 p.m. on weekdays and on weekends. However, Landlord shall have no
responsibility to prevent, nor have liability to Tenant or Tenant’s visitors,
employees, contractors, agents and invitees for losses due to theft, burglary
or
criminal conduct of other persons, or damages done by persons gaining access
to
the Leased Premises, the Building or the Parking Areas, and Tenant releases
Landlord from all liability relating thereto.
5.4 Keys.
Landlord shall furnish Tenant with two (2) keys for each corridor door entering
the Leased Premises. Any additional keys will be furnished by Landlord at
Tenant’s expense equal to its cost plus fifteen percent (15%) upon receipt of an
order signed by Tenant or Tenant’s authorized representative. All such keys
shall remain the property of Landlord. No additional locks shall be allowed
on
any door of the Leased Premises, and Tenant shall not make, or permit to be
made, any duplicate keys, except those furnished by Landlord. Upon termination
of this Lease, Tenant shall surrender to Landlord all keys to the Leased
Premises, and give to Landlord the explanation of the combination of all locks
for safes, safe cabinets, and vault doors, if any, in the Leased
Premises.
5.5 Tenant
Identification and Signage.
Landlord shall provide and install all Tenant identification on the entry door
to the Leased Premises. All letters and numerals shall be in the standard
graphics that are used throughout the Building. Only such standard graphics
may
be used in any public area or openings to public areas. Other Tenant signage
visible within the Leased Premises, in the corridors or lobby of the Building
or
from the exterior of the Building will be allowed only with Landlord’s prior
written approval, which Landlord shall have no obligation to grant.
5.6 Lobby
Directory.
Landlord agrees to furnish a Lobby Directory Board Strip identifying Tenant
on
the Lobby Directory Board. The cost of any changes or additions thereafter
will
be charged to Tenant.
5.7 Repairs
by Landlord.
Landlord shall maintain the structural components and the common areas of the
Building in good repair and condition, but, unless otherwise expressly
stipulated in this Lease, Landlord shall not be required to make any other
repairs or improvements during the Lease Term.
ARTICLE
VI
INSURANCE,
DAMAGE, AND CONDEMNATION
6.1 Indemnity
and Hold Harmless.
Landlord shall not be liable to Tenant, its agents, servants, employees,
contractors, customers, or invitees, for any damage to persons or property
caused by any negligence or willful misconduct of Tenant, its agents, servants,
employees, contractors, customers, or invitees, and Tenant agrees to indemnify,
defend and hold Landlord harmless from all liability and claims for any such
damage. Tenant shall not be liable to Landlord, or to Landlord’s agents,
servants, employees, contractors, customers or invitees for any damage to person
or property caused by any negligence or willful misconduct of Landlord, its
agents, servants, employees, contractors, customers, or invitees, and Landlord
agrees to indemnify, defend and hold Tenant harmless from all claims for such
damage. The preceding sentences shall apply only when the injury, death or
damage is caused only by the negligence or willful misconduct of the indemnitor
or when the cause is the concurrent result of the negligence or willful
misconduct of the indemnitor, its agents, servants, employees, contractors,
customers, or invitees or other third party and not of any negligence or willful
misconduct of the indemnitee or its agents, servants, employees, contractors,
customers or invitees. In any situation involving injury, death or damage
resulting from the negligence or willful misconduct of the indemnitor and the
indemnitee, or any of their agents, servants, employees, contractor, customers
or invitees, each party as indemnitor shall indemnify the other party as the
indemnitee to the extent, but only to the extent, of the liability attributable
to its negligence or willful misconduct or the negligence or willful misconduct
of its agents, servants, employees, contractors, customers or invitees. The
foregoing indemnity obligations shall include reasonable attorney’s fees,
investigation costs, court costs and all other reasonable costs and expenses
incurred in connection with any claim or demand which is covered by the
indemnities hereunder. Tenant agrees that all personal property upon the Leased
Premises shall be at the risk of Tenant only, and that Landlord shall not be
liable for any damage thereto or loss, theft or disappearance thereof. The
provisions under this Lease shall survive the termination of this Lease with
respect to any damage, injury or death occurring prior to such termination,
or
after such termination during any period during which Tenant is in possession
of
the Leased Premises or engaged in removing any property it is permitted to
remove under this Lease.
14
6.2 Property
Insurance by Landlord.
Landlord shall maintain fire and extended coverage insurance on: (i) the
structural components and common areas of the Building; and (ii) tenant finish
improvements within the Leased Premises with a value of fifteen dollars ($15.00)
per square foot of usable area within the Leased Premises (the “Covered Tenant
Improvements”). Said insurance shall be maintained with any insurance company
authorized to do business in the State of Texas, in amounts desired by Landlord
and at the expense of Landlord and payment for losses thereunder shall be made
solely to Landlord; subject, however, to the rights of the Mortgagees (defined
below). If the annual premiums to be paid by Landlord shall exceed the standard
rates because Tenant’s operations result in extra hazardous exposure, Tenant
shall promptly pay the excess amount of the premium upon the request of
Landlord.
6.3 Property
Insurance by Tenant.
Tenant
shall, at all times during the Lease Term, at its own expense, maintain a policy
or policies of insurance with premiums fully paid in advance, insuring the
following against loss or damage by fire, explosion, or other hazards and
contingencies for the full insurable value thereof: (i) all of Tenant’s contents
located in the Leased Premises, including, without limitation, trade fixtures,
furnishings, equipment, and other items of personal property; and (ii) all
tenant improvements within the Leased Premises with a total value in excess
of
the stated value for the Covered Tenant Improvements.
6.4 Liability
Insurance.
Tenant
shall, at Tenant’s expense, obtain, maintain, and keep in full force and effect
during the Lease Term, commercial general liability insurance (including
premises operation, bodily injury, personal injury, death, independent
contractors, products, and completed operations, broad form contractual
liability and broad form property damage coverages) in a combined single limit
amount of not less than $3,000,000, against all claims, demands or actions
with
respect to damage, injury or death made by or on behalf of any person or entity,
arising from or relating to the conduct and operation of Tenant’s business in,
on or about the Leased Premises, or arising from or related to any act or
omission of Tenant or any person within Tenant’s control. Whenever, in
Landlord’s reasonable judgment, good business practice and changing conditions
indicate a need for additional amounts or different types of insurance coverage,
Tenant shall within thirty (30) days after Landlord’s request, obtain such
insurance coverage, at Tenant’s expense.
6.5 General
Insurance Requirements.
The
policy or policies of insurance to be maintained by Tenant shall name Landlord,
the Managing Agent, and the Mortgagees as co-insured and shall contain an
endorsement that such policies cannot be canceled, amended or modified as to
Landlord or the Mortgagees, if any, without thirty (30) days prior written
notice to Landlord and the Mortgagees. Tenant shall deliver certificates of
insurance in form satisfactory to Landlord not less than thirty (30) days prior
to the expiration of the old policies. The insurance required under this Lease,
shall be insured by such good and responsible companies qualified to do and
doing business in the State of Texas as may be approved by Landlord, which
approval shall not be unreasonably withheld. Each policy of insurance required
to be carried under this Lease or a duplicate or certificate thereof, shall
be
delivered to Landlord for retention by it. If Tenant shall fail to insure or
shall fail to furnish to Landlord any such policy, duplicate policy or
certificate as required, Landlord may, from time to time, effect such insurance
for the benefit of Tenant or Landlord, or both of them, for a period not
exceeding one (1) year, and any premium paid by Landlord shall be recoverable
from Tenant as additional rent on demand.
15
6.6 Waiver
of Subrogation.
Notwithstanding anything in this Lease to the contrary, Landlord and Tenant
each
waives any and all rights of recovery, claim, action, or cause of action,
against the other, its agents, officers, or employees, for any loss or damage
that may occur to the Leased Premises, or any improvements thereto, or said
Building of which the Leased Premises are a part, or any improvements thereto,
or any personal property of such party therein, by reason of fire, the elements,
or any other cause which are insured against under the terms of standard fire
and extended coverage insurance policies, regardless of cause or origin,
including negligence of the other party to this Lease, its agents, officers,
or
employees, and covenants that no insurer shall hold any right of subrogation
against such other party.
6.7 Fire
or Other Casualty.
In the
event of a fire or other casualty in the Leased Premises, Tenant shall
immediately give notice thereof to Landlord. If the Leased Premises is partially
damaged by fire or other casualty, whether or not such casualty is an insured
or
insurable risk, so as to render the Leased Premises untenantable in whole or
in
part, the rental provided for shall xxxxx thereafter as to the portion of the
Leased Premises rendered untenantable until such time as the Leased Premises
are
made tenantable as determined by Landlord, and Landlord agrees to commence
and
prosecute such repair work promptly and with all due diligence; provided,
however, in the event such destruction results in the Leased Premises being
untenantable in whole or in substantial part for a period reasonably estimated
by a responsible contractor selected by Landlord to be one hundred twenty (120)
days or longer after Landlord’s insurance settlement, or in the event of total
or substantial damage or destruction of the Leased Premises or the remainder
of
the Building from any cause and if Landlord shall decide not to rebuild, then
in
either event all rent owed up to the time of such destruction or termination
shall be paid by Tenant and thenceforth this Lease shall cease and come to
an
end. Landlord shall give Tenant written notice of its decisions, estimates
or
elections hereunder within sixty (60) days after receipt by Landlord of notice
of settlement from Landlord’s insurance carrier. Notwithstanding anything
contained in this Lease, Landlord shall only be obligated to restore or rebuild:
(i) the structural components and common areas of the Building; and (ii) the
Covered Tenant Improvements.
6.8 Condemnation
and Loss or Damage.
If the
Leased Premises or any part hereof shall be taken or condemned for any public
purpose to such an extent as to render the remainder of the Leased Premises,
in
the opinion of Landlord, not reasonably suitable for Tenant’s occupancy, this
Lease shall, at the option of either party, forthwith cease and terminate.
All
proceeds from any taking or condemnation of the Leased Premises shall belong
to
and be paid to Landlord, including any and all compensation, damages, income,
rent, awards or any interest therein whatsoever which may be paid or made in
connection therewith, and Tenant shall have no claim against Landlord for the
value of any unexpired portion of the Lease Term. Notwithstanding the foregoing,
nothing contained herein shall prevent Tenant from seeking a separate award
from
the condemning authority for any matters which will not interfere with or reduce
any award to Landlord. In the event of a partial taking of the Leased Premises
which does not result in a termination of this Lease, the Base Rental shall
be
reduced in the proportion that the area of the portion of the Leased Premises
so
taken bears to the total area of the Leased Premises before such taking.
Landlord shall not be liable or responsible to Tenant for any loss or damage
to
any property or persons occasioned by theft, fire, act of God, public enemy,
injunction, riot, strike, insurrection, war, court order, requisition or order
of governmental body or authority, force majeure or any other cause beyond
the
control of Landlord, or for any damage or inconvenience which may arise through
repair, alteration, or improvements of all or any part of the Building, or
failure to make such repairs.
16
ARTICLE
VII
DEFAULT
7.1 Default
by Tenant.
If (1)
default is made in the payment of any sum to be paid by Tenant under this Lease
(no notice being required for default in payment), (2) default is made in the
performance of any of the other covenants or conditions which Tenant is required
to observe and to perform under this Lease, and such non-monetary default shall
continue for twenty (20) days after written notice to Tenant, (3) the interest
of Tenant under this Lease is levied on under execution or other legal process,
(4) any petition is filed by or against Tenant to declare Tenant bankrupt or
to
delay, reduce, or modify Tenant’s debts or obligations, (5) any petition is
filed or other action taken to reorganize or modify Tenant’s capital structure,
(6) Tenant is declared insolvent according to law, (7) any assignment of
Tenant’s property is made for the benefit of creditors, (8) a receiver or
trustee is appointed for Tenant or its property, (9) Tenant abandons the Leased
Premises (which shall mean that Tenant is absent from the Leased Premises for
ten (10) consecutive days), , then Landlord may treat the occurrence of any
one
or more of the foregoing events as a breach of this Lease (provided that no
such
levy, execution, legal process, or petition filed against Tenant shall
constitute a breach of this Lease if Tenant shall vigorously contest the same
by
appropriate proceedings and shall remove or vacate the same within thirty (30)
days from the date of its creation, service, or filing) and thereupon, at its
option Landlord may have any one or more of the following described remedies
in
addition to all other rights and remedies provided at law or in
equity:
(a) Landlord
may terminate this Lease and repossess the Leased Premises and be entitled
to
recover as damages a sum of money equal to the total of: (i) the cost of
recovering the Leased Premises (including attorneys’ fees and costs of suit);
(ii) the unpaid rent earned at the time of termination, plus interest thereon
at
the rate provided herein; (iii) the present value of the balance of the rent
for
the remainder of the term less the present value of the fair market rental
value
of the Leased Premises for said period; and (iv) any other sum of money and
damages owed by Tenant to Landlord.
(b) Landlord
may terminate Tenant’s right of possession (but not the Lease) and may repossess
the Leased Premises by forcible entry or detainer suit or otherwise, without
demand or notice of any kind to Tenant and without terminating this Lease,
in
which event Landlord shall use reasonable efforts to relet the same for the
account of Tenant for such rent and upon such terms as shall be satisfactory
to
Landlord. For the purpose of such reletting Landlord is authorized to decorate
or to make any repairs, changes, alterations, or additions in or to the Leased
Premises that may be necessary or convenient, and, if Landlord shall fail or
refuse to relet the Leased Premises, then Tenant shall pay to Landlord as
damages a sum equal to the amount of the rental reserved in this Lease for
such
period or periods, or, if the Leased Premises are relet and a sufficient sum
shall not be realized from such reletting after paying the unpaid Base and
Additional Rent due hereunder plus interest thereon at a maximum lawful rate,
plus the cost of recovering possession, and all of the costs and expenses of
such decorations, repairs, changes, alterations, and additions and the expenses
of such reletting and of the collection of the rent accruing therefrom to
satisfy the rent provided for in this Lease to be paid, then Tenant shall
satisfy and pay any such deficiency upon demand therefor from time to time,
and
Tenant agrees that Landlord may file suit to recover any sums falling due under
the terms of this paragraph from time to time, and that no delivery or recovery
of any portion due Landlord hereunder shall be any defense to any subsequent
action brought for any amount not theretofore reduced to judgment in favor
of
Landlord, nor shall such reletting be construed as an election on the part
of
Landlord to terminate this Lease unless a written notice of such intention
be
given to Tenant by Landlord. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach.
17
(c) At
any
time after an event of breach or default by Tenant has occurred, Landlord shall
have the right to change or modify door locks on entry doors to the Leased
Premises, and/or terminate all utility services to the Leased Premises, and
such
right to modify or change locks and/or terminate utility services shall continue
so long as Tenant is in default hereunder. Landlord shall not be obligated
to
furnish Tenant with a new key or to allow Tenant to enter the Leased Premises,
or to reinstate any terminated utility services until and unless Tenant has
cured such default. Landlord may take such action as is required to cure any
breach or default by Tenant hereunder and xxxx Tenant for any expenses incurred
by Landlord in curing such breach, and Tenant shall be obligated to pay such
xxxx immediately upon its receipt by Tenant.
(d) Landlord
shall have the right to cause a receiver to be appointed in any action against
Tenant to take possession of the Leased Premises and/or to collect the rents
or
profits derived therefrom. The appointment of such receiver shall not constitute
an election on the part of Landlord to terminate this Lease unless notice of
such intention is given to Tenant.
(e) After
terminating this Lease or Tenant’s right to possession of the Leased Premises,
Landlord may remove any and all personal property located in the Leased Premises
and place such property in a public or private warehouse or elsewhere. Tenant
shall reimburse Landlord for all costs of such removal and storage upon demand.
Tenant waives all claims for damages that may be caused by Landlord’s removing
or storing the property as herein provided, and Tenant shall indemnify and
hold
Landlord free and harmless from and against any and all damages, including
without limitation all costs of court and attorney’s fees of Landlord occasioned
thereby.
(f) In
addition to the other remedies provided in this Lease, Landlord shall be
entitled, to the extent permitted by applicable law, to injunctive relief in
case of the violation or attempted or threatened violation, of any of the
provisions of this Lease, or to a decree compelling performance of any other
provisions of this Lease, or to any other remedy allowed at law or in
equity.
7.2 Holding
Over.
In the
event of holding over by Tenant after expiration or termination of this Lease
without the written consent of Landlord, Tenant shall pay 150% of the rent
(including all Base Rental and Additional Rental then payable) for the entire
holdover period. No holding over by Tenant after the Lease Term shall operate
to
extend the Lease.
7.3 Non-Waiver.
Failure
of Landlord to declare any default immediately upon occurrence thereof, or
delay
in taking any action in connection therewith, shall not waive such default,
but
Landlord shall have the right to declare any such default at any time and take
such action as might be lawful or authorized hereunder, either in law or in
equity.
7.4 Attorney’s
Fees.
In the
event either party defaults in the performance of any of the terms, agreements
or conditions contained in this Lease and the other party places the enforcement
of this Lease, or any part thereof, or the collection of any rent due or to
become due hereunder, or recovery of the possession of the Leased Premises,
in
the hands of an attorney who files suit upon the same, and should such
non-defaulting party prevail in such suit, the defaulting party agrees to pay
the other party’s reasonable attorneys’ fees.
18
7.5 Landlord’s
Lien.
IN
ADDITION TO THE STATUTORY LIEN, LANDLORD IS HEREBY GRANTED AND SHALL HAVE,
AT
ALL TIMES, A VALID SECURITY INTEREST UNDER THE UNIFORM COMMERCIAL CODE OF TEXAS
(ARTICLE 9 OF THE BUSINESS AND COMMERCE CODE V.A.T.S.) TO SECURE PAYMENT OF
ALL
RENTALS AND OTHER SUMS OF MONEY BECOMING DUE UNDER THIS LEASE FROM TENANT,
AND
TO SECURE PAYMENT OF ANY DAMAGES OR LOSS WHICH LANDLORD MAY SUFFER BY REASON
OF
THE BREACH BY TENANT OF ANY COVENANT, AGREEMENT OR CONDITION CONTAINED HEREIN,
UPON ALL GOODS, WARES, EQUIPMENT, FIXTURES, FURNITURE, IMPROVEMENTS AND OTHER
PERSONAL PROPERTY OF TENANT PRESENTLY OR WHICH MAY HEREAFTER BE SITUATED ON
THE
LEASED PREMISES, AND ALL PROCEEDS THEREOF. TENANT SHALL NOT ALLOW SUCH PROPERTY
TO BE REMOVED THEREFROM WITHOUT THE PRIOR WRITTEN CONSENT OF LANDLORD UNTIL
ALL
ARREARAGES IN RENT AS WELL AS ANY AND ALL OTHER SUMS OF MONEY THEN DUE OR TO
ACCRUE AND BECOME DUE UNDER THIS LEASE TO LANDLORD SHALL FIRST HAVE BEEN PAID
AND DISCHARGED AND ALL THE COVENANTS, AGREEMENTS AND CONDITIONS HEREOF HAVE
BEEN
FULLY COMPLIED WITH AND PERFORMED BY TENANT.
Upon the
occurrence of an event of default by Tenant, Landlord may, in addition to any
other remedies provided herein, enter upon the Leased Premises and take
possession of any and all goods, wares, equipment, fixtures, furniture,
improvements and other personal property of Tenant situated on the Leased
Premises, without liability for trespass or conversion, and sell the same at
public or private sale, with or without having such property at the sale, after
giving Tenant reasonable notice of the time and place of any public sale or
of
the time after which any private sale is to be made, at which sale Landlord
or
its assigns may purchase unless otherwise prohibited by law. Unless otherwise
provided by law, and without intending to exclude any other manner of giving
Tenant reasonable notice, the requirement of reasonable notice shall be met
if
such notice is given at least five (5) days before the time of any sale. The
proceeds from any such disposition, less any and all expenses connected with
the
taking of possession, holding and selling of the property (including reasonable
attorney’s fees and other expenses), shall be applied as a credit against the
indebtedness secured by the security interest granted in this section. Any
surplus shall be paid to Tenant or as otherwise required by law; and Tenant
shall pay any deficiencies forthwith. Upon request by Landlord, Tenant agrees
to
execute and deliver to Landlord a financing statement in form sufficient to
perfect the security interest created herein under the provisions of the Uniform
Commercial Code in force in the State of Texas, or Landlord may file this Lease
or a copy hereof as a financing statement. The statutory lien for rent is not
hereby waived; on the contrary, the security interest herein granted shall
be in
addition to and supplementary of said statutory lien. Notwithstanding anything
containing in this Section 7.5 to the contrary, Landlord agrees to subordinate
its liens and security interest to any lender of Tenant which has a lien or
shall be given a lien by Tenant on Tenant’s personal property.
7.6 Default
by Landlord.
Tenant
shall provide to Landlord written notice of any alleged breach or default by
Landlord under this Lease, stating with specificity the nature of such alleged
breach or default. Landlord shall not be considered to be in default hereunder
unless Landlord fails to commence the cure of any such default within thirty
(30) days after such written notice has been delivered to Landlord by Tenant
or
unless Landlord fails to pursue such cure to completion. In the event of any
default by Landlord hereunder, Tenant’s exclusive remedy shall be an action for
damages, and in consideration of the execution of the Lease by Landlord, Tenant
waives any right to injunctive or other equitable relief.
19
7.7 Limitation
on Liability of Landlord.
Notwithstanding any provision herein to the contrary, Tenant shall look solely
to the equity of Landlord in and to the Building in the event of breach or
default by Landlord pursuant to the provisions of this Lease or any agreement
or
instrument executed in connection herewith, and Tenant agrees that the liability
of Landlord under this Lease or any such agreement or instrument shall not
exceed the value of such equity of Landlord in and to the Building. Without
limitation to the foregoing, no properties or assets of Landlord other than
the
Building shall be subject to levy, execution, or other enforcement procedures
for the satisfaction of any judgment (or other judicial process) arising
out of
or in connection with this Lease. If Tenant shall acquire a lien on any other
properties or assets of Landlord by judgment or otherwise, Tenant shall promptly
release such lien on such other properties and assets by executing,
acknowledging and delivering to Landlord an instrument to that effect prepared
by Landlord’s attorneys. This Lease is executed by a representative of Landlord
solely in the representative capacity of such party, and not in such party’s own
individual capacity. No owner, partner, joint venturer, shareholder,
representative, advisor, trustee, director, officer, beneficiary, participant,
or agent of Landlord shall be personally liable in any manner or to any extent
under or in connection with this Lease.
ARTICLE
VIII
GENERAL
8.1 The
Landlord’s Mortgagee.
(a) This
Lease and all rights of Tenant hereunder are subject and subordinate to any
mortgage or mortgages and any deed or deeds of trust, blanket or otherwise,
which are now or may hereafter be placed on the Land and the Building and any
and all increases, renewals, modifications, consolidations, replacements and
extensions of any of such mortgages and deeds of trust (any such instrument
being a “Mortgage”). This provision shall be self-operative and no further
instrument shall be required to effect such subordination of this Lease. Tenant
shall, however, upon demand at any time or times, execute, acknowledge and
deliver to Landlord any and all instruments and certificates that may be
necessary or proper to more effectively document the subordination of this
Lease
and all rights of Tenant hereunder to any Mortgage or to confirm or evidence
such subordination. If Tenant fails or neglects to execute, acknowledge, and
deliver any such subordination instrument or certificate, Landlord, in addition
to any other remedies it may have, may, as the agent and attorney-in-fact of
Tenant, execute, acknowledge and deliver the same, and Tenant hereby irrevocably
nominates, constitutes, and appoints Landlord as Tenant’s proper and legal agent
and attorney-in-fact for such purpose. Tenant covenants and agrees, in the
event
of the foreclosure of or trustee’s sale under any Mortgage (“Foreclosure Sale”),
to attorn to the purchaser upon any Foreclosure Sale, if so requested by such
purchaser, and to recognize such purchaser as Landlord under this Lease. Tenant
agrees to execute and deliver, at any time and from time to time, upon the
request of Landlord or of any holder or holders of any Mortgage, any instrument
or certificate which, in the sole judgment of Landlord or of such holder or
holders, may be necessary or appropriate to evidence such
attornment.
(b) This
Lease and all rights of Tenant hereunder are further subject and subordinate,
to
the extent that the same relate to the Premises, to all applicable ordinances
of
the City of Austin, Texas, relating to easements, franchises, and other
interests or rights upon, across, or appurtenant to the Building or the
Land.
20
8.2 Estoppel.
Tenant
will, at such time or times as Landlord may request, sign a certificate stating
whether this Lease is in full force and effect; whether any amendments or
modifications exist; whether there are any defaults hereunder; and such other
information and agreements as may be reasonably requested. Tenant shall sign
and
return any such certificate to Landlord within ten (10) days.
8.3 Notice.
All
notices, demands and requests given under the terms of this Lease shall be
in
writing and shall be deemed to have been properly delivered as of the time
of
delivery if personally delivered, two (2) days after the time of deposit in
the
mail system if sent by United States certified mail, return receipt requested,
and postage prepaid, or one (1) day after the time of delivery to Federal
Express (or comparable express delivery system) if sent by such method with
all
costs prepaid. All notices, demands and requests shall be addressed as
follows:
LANDLORD:
CGLIC/SAR
c/o
Xxxxxxxx Xxxx Company
8310
Capital of Xxxxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
TENANT:
Wintegra,
Inc.
0000
Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxx,
Xxxxx 00000
Attention:
Xxxx Xxxxxxxx
Copies
of
any notice required or permitted to be delivered by Landlord or Tenant, shall
be
simultaneously delivered to the Mortgagee, if any. No such notice shall be
effective until copies have been dispatched to such Mortgagee in the manner
provided above at the address given to Tenant in writing by the Mortgagee,
or at
any addresses subsequently designated for such Mortgagees under the procedure
described above.
8.4 Parking.
During
the initial Lease Term, Tenant shall have the right to eighteen (18) unreserved
surface vehicle parking space(s) at no cost to the Tenant and three (3) reserved
covered vehicle parking spaces in the Parking Areas at no cost to tenant.
Landlord shall retain the right to control the parking of all vehicles
(including but not limited to cars, and trucks, recreational vehicles, trailers,
bicycles and motorcycles) and shall designate parking areas and building service
areas. A copy of the current parking rules and regulations is attached to this
Lease as Exhibit
“D”.
Visitor
parking shall be free of charge during the lease term.
21
8.5 Miscellaneous
Provisions.
(a) ENTIRE
AGREEMENT; AMENDMENTS. This Lease, together with the Exhibits and Riders
attached hereto, embody the entire contract between the parties of this Lease
relative to the subject matter hereof, and this Lease supersedes and cancels
any
and all previous negotiations, arrangements, brochures, agreements and
understandings if any between Landlord and Tenant, or displayed by Landlord
to
Tenant with respect to the subject matter of this Lease or the Building.
There
are no representations or warranties between Landlord and Tenant other than
those contained in this Lease and all reliance with respect to any
representations or warranties is solely upon the representations and warranties
contained herein. This Lease may not be altered, changed, or amended, except
by
an instrument in writing signed by both parties to the Lease.
(b) SEVERABILITY
CLAUSE. If any clause or provision of this Lease is illegal, invalid, or
unenforceable, under present or future laws effective during the term of
this
Lease, then it is the intention of the parties to this Lease that the remainder
of this Lease shall not be affected thereby, and it is also the intention
of
both parties that, in lieu of each clause or provision that is illegal, invalid,
or unenforceable, there be added as a part of this Lease a clause or provision
as similar in terms to such illegal, invalid, or unenforceable clause or
provision as possible but enforceable.
(c) BINDING
EFFECT. The provisions of this Lease shall be binding upon and inure to the
benefit of the heirs, executors, administrators, successors, and assigns of
the
parties, but this provision shall in no way alter the restrictions in the Lease
in connection with assignment and subletting by Tenant. Landlord shall have
the
right to transfer and assign, in whole or in part, all its rights and
obligations hereunder and in the Building and property referred to in the Lease,
and in such event, no further liability or obligation shall hereafter accrue
against Landlord hereunder.
(d) GOVERNING
LAW. All rights and remedies of Landlord under this Lease shall be cumulative
and none shall exclude any other rights or remedies allowed by law. This Lease
is construed according to the laws of the State of Texas and is performable
in
Xxxxxx County, Texas. Further, the terms and provisions of this Lease shall
not
be construed against or in favor of a party hereto merely because such party
is
the “Landlord” or the “Tenant” hereunder or such party or its counsel is or was
the draftsman of this Lease.
(e) CAPTIONS.
All paragraph captions in this Lease are for convenience only, and neither
limit
nor amplify the provisions of this Lease.
(f) NUMBER
AND GENDER. The words “Landlord” and “Tenant” as used herein shall include the
plural as well as the singular. If there be more than one Tenant, the
obligations under this Lease imposed upon Tenant shall be joint and
several.
(g) TIME
OF
ESSENCE. Time is of the essence of this Lease and each and all of its
provisions. Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution and delivery by both Landlord
and Tenant.
(h) FORCE
MAJEURE. Whenever a period of time is prescribed for the taking of any action
by
Landlord, Landlord shall not be liable or responsible for, and there shall
be
excluded from the computation of such period of time, any delays due to strikes,
riots, acts of God, shortages of labor or materials, war, governmental laws,
regulations or restrictions, or any other cause whatsoever beyond the control
of
Landlord.
22
(i) SUBSTITUTION
OF LEASED PREMISES. In the event Landlord determines to utilize all of the
Leased Premises for another single tenant during the Lease Term, Tenant agrees
to relocate to other space in the Building designated by Landlord, provided
such
other space is of equal or larger size than the Leased Premises, unless Tenant
agrees to relocate to smaller space. If the relocation space is larger than
Tenant’s Premises Tenant’s rental obligation shall not be increased over the
amount Tenant would normally be obligated to pay under this lease for the
Premises. The relocation space shall be, or made to be substantially the
same
configuration and finishes as the Premises. Landlord shall pay all reasonable
out of pocket expenses of any such relocation, including but not limited
to the
expenses of moving and reconstruction of all Tenant finished and Landlord
finished improvements, replacing telephone and computer cabling and related
services, replacing a reasonable amount of paper products that have Tenant’s
address on it . In the event of such relocation, this Lease shall continue
in
full force and effect without any change in the terms or conditions of this
Lease, but with the new location substituted for the old location set forth
in
Section 1.1 of this Lease. Landlord shall be required to give Tenant a ninety
day prior written notice of Landlord’s desire to relocate Tenant in accordance
to this paragraph (i).
(j) LANDLORD
ALTERATIONS OR MODIFICATIONS. Landlord shall have the right at any time to
change the arrangement, character, use or location of entrances or passageways,
doors, corridors, elevators, escalators, stairs, landscaping, toilets or
any
other portions of the Building, make additions or other modifications thereto,
as Landlord shall deem appropriate, and to change the name or designation
by
which the Building is commonly known, and none of the foregoing shall be
deemed
an actual or constructive eviction of Tenant, entitle Tenant to any reduction
of
rent hereunder or result in any liability of Landlord to Tenant. Additionally,
the description of the Leased Premises and the location of any duct work,
electrical wiring, plumbing to other equipment and systems of the Building
within the Leased Premises shall be subject to such minor changes as Landlord
determines to be necessary or desirable in the course of the construction
or
maintenance of same, and no such changes shall invalidate or affect this
Lease.
(k) BROKERAGE.
Tenant represents and warrants that Tenant has only dealt with Xxxxxxxx Xxxx
Company, Landlord’s exclusive Leasing Agent for Prominent Pointe/Northpoint
Centre as broker in connection with this Lease and that, insofar as Tenant
knows, no other broker negotiated this Lease or is entitled to any commission
in
connection herewith. Tenant shall indemnify and hold harmless Landlord from
and
against all claims (and costs of defending against and investigating such
claims, whether meritorious or not) of any other brokers or similar parties
claiming by, through, or under Tenant in connection with this Lease. Landlord
shall pay Tenant’s exclusive leasing agent, BlueStone Partners, a commission
under the terms of a separate agreement.
(l) REPRESENTATIONS
AND WARRANTIES BY TENANT. Tenant warrants to Landlord that: (a) the financial
statements of Tenant furnished to Landlord are true and correct to the best
of
Tenant’s knowledge, (b) there has been no significant adverse change in Tenant’s
financial condition since the date of the financial statements, (c) the
financial statements fairly represent the financial condition of Tenant upon
those dates and at the time this Lease is executed, (d) there are no delinquent
taxes due and unpaid by Tenant, and (e) Tenant has never voluntarily or
involuntarily been named as a debtor in any bankruptcy or involuntary
proceedings. Tenant warrants that Tenant has disclosed in writing to Landlord
all lawsuits pending or threatened against Tenant, and Tenant has made no
material misrepresentation or material omission of facts regarding Tenant’s
financial condition or business operations. Tenant acknowledges that Landlord
has relied on the information and representations furnished by Tenant to
Landlord and that Landlord would not enter into this Lease
otherwise.
23
8.6 Anti-Terrorism
Representations.
[Tenant/Lessee]
is not, and shall not during the term of the Agreement become, a person or
entity with whom [Landlord/Lessor] is restricted from doing business with
under
the Uniting and Strengthening America by Providing Appropriate Tools Required
to
Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56
(commonly known as the “USA Patriot Act”) and Executive Order Number 13224 on
Terrorism Financing, effective September 24, 2001 and regulations promulgated
pursuant thereto (collectively, “Anti-Terrorism Laws”), including without
limitation persons and entities named on the Office of Foreign Asset Control
Specially Designated Nationals and Blocked Persons List (collectively
“Prohibited Persons).
To
the
best of its knowledge, [Tenant/Lessee] is not currently engaged in any
transactions or dealings, or otherwise associated with, any Prohibited Persons
in connection with the use or occupancy of the demised premises. [Tenant/Lessee]
will not in the future during the term of the Agreement engage in any
transactions or dealings, or be otherwise associated with, any Prohibited
Persons in connection with the use or occupancy of the demised
premises.
Breach
of
these representations constitutes a material breach of this Lease and shall
entitle [Landlord/Lessor] to any and all remedies available thereunder, or
at
law or in equity.
8.7 Other.
(a) If
Tenant
is a corporation, partnership, limited liability company or other entity, Tenant
warrants that all consents or approvals required of third parties (including,
but not limited to, its Board of Directors, partners or managers, as
appropriate) for the execution, delivery and performance of this Lease have
been
obtained and that Tenant has the right and authority to enter into and perform
its covenants contained in this Lease.
(b) Whenever
in this Lease there is imposed upon Landlord the obligation to use its best
efforts, reasonable efforts or diligence, Landlord shall be required to do
so
only to the extent the same is economically feasible and otherwise will not
impose upon Landlord extreme financial or other burdens.
(c) The
waiver by Landlord of any agreement, condition or provision herein contained
shall not be deemed to be a waiver of any subsequent breach of the same or
any
other agreement, condition or provision herein contained, nor shall any custom
or practice which may grow up between the parties in the administration of
the
terms hereof be construed to waive or to lessen the right of Landlord to insist
on the performance by Tenant in strict accordance with said terms. The
subsequent acceptance of rental hereunder by Landlord shall not be deemed to
be
a waiver of any preceding breach by Tenant of any agreement, condition or
provision of this Lease, other than the failure of Tenant to pay the particular
rental so accepted, regardless of Landlord’s knowledge of such preceding breach
at the time of acceptance of such rental.
(d) It
is
expressly understood that Landlord does not, in any way or for any purpose,
become a partner of Tenant in the conduct of its business, or otherwise, or
joint venturer or a member of a joint enterprise with Tenant.
24
EXECUTED
in
multiple counterparts, each of which shall have the force and effect of an
original, as of the _____ day of _________________, 2004.
| LANDLORD: | ||
| CONNECTICUT
GENERAL LIFE INSURANCE COMPANY, a Connecticut corporation, on behalf of its Separate Account R |
||
| |
|
|
| Date: | By: | CIGNA Investments, Inc., its authorized agent |
| By: | ||
|
|
||
|
|
||
|
|
||
| TENANT: | ||
| |
|
Wintegra, Inc., a Delaware corporation |
| By: | ||
|
|
||
|
|
||
|
|
||
25
EXHIBIT
“A”
TO
LEASE
BETWEEN CGLIC/SAR AS LANDLORD
AND
WINTEGRA, INC. AS TENANT
DESCRIPTION
OF LAND
Tract
1:
Lot three (3), Block A, “The Austin Center Phase Two-A”, a subdivision in Xxxxxx
County, Texas, according to the map or plat of record in Volume 82, Pages
243-244, Plat Records of Xxxxxx County, Texas.
Tract
2:
Easement Estate created by that certain Easement Agreement by and between Austin
Center Phase I, Ltd. and First City Bancorporation of Texas, Inc., dated
September 24, 1982, recorded in Volume 7858, Page 23, of the Deed Records of
Xxxxxx County, Texas, and being described by metes and bounds as
follows:
0.16
ACRE
OUT OF THE AUSTIN CENTER PHASE TWO-A, XXXXXX COUNTY, TEXAS, A SUBDIVISION
RECORDED IN BOOK 82, PAGE 243 OF THE XXXXXX COUNTY PLAT RECORDS; SAID 0.16
ACRE
BEING A PORTION OF LOTS 3 AND 4 OF SAID SUBDIVISION; SAID 0.16 ACRE BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING
at an iron rod found in the south line of Far West Boulevard, said point being
the northwest corner of said Lot 3, same being the northeast corner of said
Xxx
0, Xxxxx A of said Austin Center Phase Two-A;
THENCE
with said south line of Far West Blvd., S 59 degrees 43 minutes E, a distance
of
10.5 feet;
THENCE
leaving said south line of Far West Blvd. and crossing said Lot 3, the following
two (2) courses:
|
1.
|
S
30 degrees 17 minutes W, a distance of 197.0 feet
and
|
|
2.
|
N
59 degrees 43 minutes W, a distance of 10.0 feet to a point on the
common
line of said lots 3 and 4;
|
THENCE
leaving the said common line of Lots 3 and 4, the following two (2)
courses:
|
1.
|
N
59 degrees 43 minutes W, a distance of 26.0 feet;
and
|
|
2.
|
N
30 degrees 17 minutes E, a distance of 197.0 feet to a point on the
said
south line of Far West Blvd.;
|
THENCE
along said south line of Far West Blvd., S 59 degrees 43 minutes E, a distance
of 26.0 feet to the POINT OF BEGINNING and containing 0.16 acres, more or
less.
26
EXHIBIT
“B”
TO
LEASE
BETWEEN CGLIC/SAR AS LANDLORD
AND
WINTEGRA, INC. AS TENANT
PLAT
OF LEASED PREMISES
27
EXHIBIT
“C”
TO
LEASE
BETWEEN CGLIC/SAR AS LANDLORD
AND
WINTEGRA, INC. AS TENANT
BUILDING
RULES AND REGULATIONS
1. All
Tenants will refer all contractors, representatives and installation technicians
who are to perform any work within the Building to Landlord for Landlord’s
supervision, approval and control before the performance of any such work.
This
provision shall apply to all work performed in the Building including, but
not
limited to, installations of telephones, telegraph equipment, electrical devices
and attachments, any and all installations of every nature affecting floors,
walls, woodwork, trim, windows, ceilings, equipment and any other physical
portion of the Building. Tenant shall not xxxx, paint, drill into, or in any
way
deface any part of the Building or the Leased Premises, except with prior
written consent of the Landlord, and as the Landlord may direct.
2. The
work
of the janitorial or cleaning personnel shall not be hindered by Tenant after
5:30 p.m., and such work may be done at any time when the offices are vacant.
The windows, doors, and fixtures may be cleaned at any time. Tenant shall
provide adequate waste and rubbish receptacles, cabinets, book cases, map cases,
etc., necessary to prevent unreasonable hardship to Landlord in discharging
its
obligations regarding cleaning service.
3. Any
permitted movement of furniture or office equipment in or out of the Building,
or dispatch or receipt by Tenant of any heavy equipment, bulky material, or
merchandise which requires use of elevators or stairways, or movement through
the Building’s service dock or lobby entrance shall be restricted to such hours
as Landlord shall designate during normal business hours. All such movement
shall be in a manner to be agreed upon between Tenant and Landlord in advance.
None of the Tenant’s office furniture or equipment, or the office furniture or
equipment of any other person, firm or entity occupying Tenant’s Leased Premises
may at any time remove such office furniture or equipment from the Leased
Premises until all arrearages in rent as well as any and all other sums of
money
then due and to become due under the Lease have been paid to Landlord or
otherwise discharged and all of the covenants, agreements and conditions of
the
Lease have been fully complied with and performed by the Tenant. Tenant shall
initiate such prior arrangements. The time, method, and routing of movement
and
limitations for safety or other concern which may prohibit any article,
equipment, or other item from being brought into the Building shall be subject
to Landlord’s discretion and control. Any hand trucks, carryalls, or similar
appliances used for the delivery or receipt of such merchandise or equipment
shall be equipped with rubber tires, side guards, and such other safeguards
as
the Building shall require. Although Landlord or its personnel may participate
in or assist in the supervision of such movement, Tenant assumes final
responsibility for all risks as to damage to articles moved and injury to
persons or persons engaged in such movement, including equipment, property
and
personnel of Landlord if damaged or injured as a result of acts in connection
with carrying out this service for Tenant, from the time of entering the
property to completion of work. Landlord shall not be liable for the acts of
any
person engaged in, or any damage or loss to any of said property or persons
resulting from any act in connection with such service performed by
Tenant.
4. No
signs
of any kind or nature, symbol, or identifying xxxx shall be put on the Building,
in the halls, elevators, staircases, entrances, parking areas or upon the doors
or walls, whether plate glass or otherwise, of the Leased Premises nor within
the Leased Premises so as to be visible from the public areas or exterior of
the
Building, without prior written approval of Landlord. All signs or lettering
shall conform in all respects to the sign and/or lettering criteria established
by Landlord.
28
5. Tenant
shall not make or permit any loud or improper noises in the Building or
otherwise interfere in any way with other tenants.
6. Landlord
will not be responsible for any lost or stolen personal property or equipment
from the Leased Premises or public areas, regardless of whether such loss occurs
when the area is locked against entry or not.
7. Tenant,
or the employees, agent, servants, visitors, or licensees of Tenant shall not,
at any time or place, leave or discard rubbish, paper, articles, or objects
of
any kind whatsoever outside the doors of the Leased Premises or in the corridors
or passageways of the Building. No animals (other than seeing-eye dogs which
accompany visually handicapped persons), bicycles or vehicles of any description
(other than wheelchair or motorized carts used by physical handicapped persons)
shall be brought into or kept in or about the Building.
8. No
additional lock or locks shall be placed by Tenant on any door in the Building
unless written consent of Landlord shall have first been obtained. Two (2)
keys
will be furnished by Landlord for the Leased Premises, and any additional key
required must be obtained from Landlord at Tenant’s expense. A reasonable charge
will be made for each additional key furnished. All keys shall be surrendered
to
Landlord upon termination of tenancy.
9. None
of
the entries, passages, doors, hallways, or stairways in the Building shall
be
blocked or obstructed.
10. Landlord
shall have the right to determine and prescribe the weight and proper position
of any unusually heavy equipment, including computers, safes, large files,
etc.,
that are to be placed in the Building, and only those which in the exclusive
judgment of the Landlord will not do damage to the floors, structure and/or
elevators may be moved into the Building. Any damage caused by installing,
moving or removing such aforementioned articles in the Building shall be paid
by
Tenant.
11. All
Christmas and other decorations must be constructed of flame retardant
materials.
12. Tenant
shall provide Landlord with a list of all personnel authorized to enter the
Building after hours (6:00 p.m. to 6:00 a.m., Monday through Friday, and 24
hours a day on weekends and holidays).
13. Anyone
entering or leaving the Building after hours, as set forth in Paragraph 12,
must
sign his name, company, suite number, and time on the Building Register and,
if
requested, show proper identification.
14. Any
air
conditioning/heating required during the periods of 6:00 p.m. to 7:00 a.m.
Monday through Friday, 12 Noon to 12 Midnight Saturday, and 24 hours a day
Sundays and holidays shall be accessed by Tenant using the Building’s
computerized system for such overtime services. Tenant shall be charged the
prevailing hourly rate for such additional heating or air
conditioning.
15. Any
furniture or equipment removed from the Building after hours must be listed
on
the Building Register. Description and serial numbers should be included.
Passout orders on Tenant’s stationery must be surrendered to the security
officer in the lobby when any articles are being removed from the
Building.
29
16. The
freight elevator shall be used to handle packages and shipments of all kinds.
Passenger elevators shall not be used for this purpose. The freight elevator
is
available to handle such deliveries twenty-four (24) hours a day, seven (7)
days
a week, subject to availability and coordination with either the Building
Manager’s Office or Building Security. Parcel Post, express, freight, or
merchant’s deliveries can also be made any time during these hours. Exclusive
use of the freight elevator must be made by previous arrangement with the
Building Manager’s Office. Use of the freight elevator for furniture is limited
to after hours on week days and on week-ends and must
be
coordinated with the Building Manager’s Office. All use of the freight elevator
is provided by card key access. Advance notice of arriving or departing
shipments will enable the Building Manager and Building Security to give better
assistance.
17. Names
to
be placed on or removed from the Directory Board in the lobby of the Building
should be furnished to the Building Manager in writing on Tenant’s
letterhead.
18. Any
additional services as are routinely provided to Tenants, not required by the
Lease to be performed by Landlord, which Tenant requests Landlord to perform,
and which are performed by Landlord, shall be billed to Tenant at Landlord’s
cost plus 15%, and Tenant shall pay such xxxx on the next maturing date as
an
installment of Base Rental.
19. All
doors
leading from public corridors to the Leased Premises are to be kept closed
when
not in use.
20. Canvassing,
soliciting, or peddling in the Building is prohibited and Tenant shall cooperate
to prevent the same.
21. Tenant
shall give immediate notice to the Office of the Building in case of accidents
in the Leased Premises or in the Building or of defects therein or in any
fixtures or equipment, or of any known emergency in the Building.
22. Tenant
shall not use the Leased Premises or permit the Leased Premises to be used
for
photographic, multilith, or multigraph reproductions, except in connection
with
its own business.
23. The
requirements of Tenant will be attended to only upon application at the Office
of the Building. Employees of Landlord shall not perform any work or do anything
outside of their regular duties, unless under special instructions from the
Office of the Building.
25. Tenant,
or the employees, agents, servants, visitors, or licensees of Tenant, shall
abide by the rules and regulations for the Parking Areas.
26. Tenant
shall not allow to pass into any sewer, drain or toilet serving the Leased
Premises or located in the Building any oil, grease, or any other deleterious
effluent or substance which may cause an obstruction in or damage to such sewer,
drain or toilet.
30
27. Landlord
reserves the right to rescind any of these Rules and Regulations of the
Building, and to make such other and further rules and regulations as in its
judgment shall from time to time be needful for the safety, protection, care
and
cleanliness of the Building, the Leased Premises, and the Parking Areas, the
operation thereof, the preservation of good order therein, and the protection
and comfort of the other tenants in the Building and their agents, employees,
and invitees, which rules and regulations, when made and written notice thereof
is given to Tenant, shall be binding upon Tenant in like manner as if originally
herein prescribed. Any waiver or non-application of any of these Rules and
Regulations as to a tenant or as to a particular occurrence or event shall
not
be, nor be deemed to be, nor operate as a waiver or invalidation of any of
the
rules and regulations to any other tenant or to any tenant respecting any other
occurrence or event, whether similar or dissimilar.
31
EXHIBIT
“D”
TO
LEASE
BETWEEN CGLIC/SAR AS LANDLORD
AND
WINTEGRA, INC. AS TENANT
PARKING
RULES AND REGULATIONS
It
is the
desire of Landlord to maintain and operate the parking areas in an orderly
manner. Cooperation by all tenants will be sincerely appreciated. The following
rules and regulations apply to all tenants in the Building and their agents,
employees, family, licensees, invitees, visitors, and contractors unless
otherwise stated.
Landlord
reserves the right to rescind these rules, make reasonable changes, or make
other reasonable rules and regulations for the safety, care, and cleanliness
of
the parking and for the preservation of good order.
1. Traffic
Signs.
All
persons parking in the parking areas shall observe posted signs and markings
regarding speed, stop signs, traffic lanes, reserved parking, no parking,
stripes separating parking spaces, etc.
2. Control
Devices.
Landlord reserves the right to install or utilize any reasonable system of
entry
and exit control devices, tenant identification cards, or vehicle identification
cards or stickers; and all persons parking in the parking areas shall comply
with such system. Landlord may make reasonable charges for replacement of
control device cards or other parking identification cards which are lost or
damaged.
3. Trash.
All
persons parking in the parking areas shall refrain from throwing trash, ashtray
contents, or other debris on the parking areas.
4. Flat
Tires.
All
vehicle owners and all persons parking in the parking areas shall be responsible
for promptly repairing flat tires or other conditions of the vehicle which
cause
unsightliness in the reasonable judgment of Landlord.
5. Removal
of Unauthorized Vehicles.
If
vehicles are blocking driveways or passageways or parked in violation of these
rules and regulations or state statutes, Landlord may exercise vehicle removal
remedies under Article 6701g-1 and 6701g-2 upon compliance with statutory
notice.
6. Security.
Landlord shall use reasonable diligence in the maintenance of existing lighting
in the parking areas. Landlord shall not be responsible for additional lighting
or further security measures in the parking areas.
7. Timely
Payment of Parking Rent.
Tenant
shall be entitled to monthly parking rights in the parking areas pursuant to
Section 8.5 of the Lease and, only upon timely payment of the then current
monthly parking rent, for visitor parking validation. Failure of Tenant to
pay
the same by the due date shall constitute a default by Tenant under the
Lease.
32
EXHIBIT
“E”
TO
LEASE
BETWEEN CGLIC/SAR AS LANDLORD AND
WINTEGRA,
INC. AS TENANT
ADDITIONAL
AGREEMENTS
Renewal
Option(s).
Tenant
shall have the right and option to renew this Lease one (1) additional terms
of
one (1) year by delivering written notice of the exercise thereof to Landlord
at
least one hundred eighty (180) days prior to the expiration of the lease term,
provided that at the time of any such notice and at the commencement of any
such
extended lease term Tenant is not in default hereunder. Upon the delivery of
said notice and subject to the conditions set forth in the preceding sentence,
this Lease, including any Expansion Space taken during the primary lease term,
shall be extended upon the same terms, covenants and conditions as provided
in
this Lease except as follows:
|
(a)
|
The
Basic Rental and Additional Rental combined shall equal $24.00 per
square
foot on an annual basis, at the commencement of such extended
term.
|
|
(b)
|
Tenant
shall have no further renewal options unless expressly granted by
Landlord
in writing.
|
|
(c)
|
Tenant
shall not have the right to assign its renewal rights to any sublessee
of
the leased premises or assignee of the
Lease.
|
Notwithstanding
the foregoing, Tenant’s renewal option may not be exercised at any time after
Tenant, with or without the consent of Landlord, assigns or sublets all or
any
portion of this Lease. Nothing herein shall imply that Tenant may assign or
sublet all or any portion of this Lease or the Premises without the prior
written consent of Landlord.
33
EXHIBIT
“F”
TO
LEASE
BETWEEN CGLIC/SAR AS LANDLORD
AND
WINTEGRA, INC. AS TENANT
COMMENCEMENT
DATE DECLARATION
THIS
COMMENCEMENT DATE DECLARATION is furnished by CGLIC/SAR (the “Landlord”) and
pertains to that certain Lease Agreement dated ___________ ____ , 2004 (the
“Lease”) with _____________________ (the “Tenant”) under which Tenant has leased
from Landlord certain space (the “Leased Premises”) known as Suite ________ in
the building commonly known as Northpoint Centre in the City of Austin, Texas
(the “Building”), such Leased Premises being more particularly described in the
Lease. Unless otherwise stated, the terms used in this Commencement Date
Declaration shall have the same definitions as terms used in the
Lease.
The
undersigned Tenant does hereby certify as follows:
1. The
Lease
has not been amended, modified or supplemented and is in full force and effect
as originally executed, except for the following amendments or
modification:
________________________________________________________
________________________________________________________
2. Tenant
is
in possession of the Leased Premises, having entered into occupancy of the
Leased Premises on ________________ and is paying the full rent called for
in
the Lease. The Commencement Date of the Lease Term was _______________, with
the
result that the Lease Term will expire ________________, unless sooner
terminated as provided in the Lease, or unless extended, in the event that
the
Lease contains any right or privilege of extension.
3. The
next
payment of rent due under the Lease is due on _____________________, in the
amount of $_____________.
4. The
Lease
represents the entire agreement between Landlord and Tenant relating to the
lease of the Leased Premises and no payments between Landlord and Tenant have
been made or are to be made except as provided in the Lease.
5. Tenant
has not made any prepayment of rent or other charges in advance, except for
the
current monthly payments, or payment of rent for the next ensuing month and
security deposits, if any, provided for in the Lease. No rent payments will
be
made more than one month in advance except as approved by
Landlord.
34
EXECUTED
as of the ______ day of ____________, 200__, in any number of counterpart
copies, each of which counterpart shall be deemed an original for all
purposes.
| LANDLORD: | TENANT: | ||
|
Connecticut
General Life Insurance Company,
on
behalf of its Separate Account R
|
|||
| By: CIGNA Investments, Inc., its authorized agent | |||
| By:
________________________________ Name: ______________________________ Title: _______________________________ |
By:
________________________________ Name: ______________________________ Title: _______________________________ |
35
EXHIBIT
“G”
TO
LEASE
BETWEEN CGLIC/SAR AS LANDLORD
AND
WINTEGRA, INC. AS TENANT
Tenant
Improvement/Construction Agreement
This
Tenant Improvement/Construction Agreement (this “Construction Agreement”) is
attached to and made a part of the Lease Agreement by and between Landlord
and
Tenant, and pertains to the design and construction of, and allowances for,
certain improvements (the “Tenant Improvements”) in and to Tenant’s Leased
Premises located on the second floor of the Building. All capitalized terms
not
defined in this Construction Agreement shall have the same meanings as used
in
the Lease.
For
and
in consideration of the premises, agreements, duties, covenants, obligations
and
other undertakings of each party to the other provided for in the Lease and
in
this Construction Agreement, Landlord and Tenant agree as follows:
1.
Design
Services.
Landlord shall provide Tenant with mechanical and architectural design services
for a building standard level of Tenant Improvements, including a complete
set
of plans and specifications (the “Construction Documents”). Tenant has furnished
Landlord with all information necessary for the preparation of the initial
Construction Documents. The space plan that is here in attached to Exhibit
G-1
reflects the Tenant Improvements that Landlord and Tenant have mutually agreed
to. Landlord has prepared and delivered a preliminary estimate for the costs
to
construct the improvements illustrated in the floor plan on Exhibit G-1 .
Landlord will complete competitive bidding of the Construction Documents to
determine the actual construction cost. Tenant will inform Landlord of Tenant’s
approval or of any corrections required in the Construction Documents within
ten
(10) days after they are received by Tenant. Upon approval of the Construction
Documents in accordance with this section, the Construction Documents shall
constitute the Approved Construction Documents. Subsequent revisions or
variations, if any, to the Approved Construction Documents shall be mutually
approved by Landlord and Tenant. Any re-drawings requested by Tenant to the
Approved Construction Documents shall be at Tenant’s sole cost and expense. The
Approved Construction Documents shall be attached to and incorporated in this
Construction Agreement as Exhibit
“G-1”.
|
3.
|
Construction.
Landlord agrees to construct or cause to be constructed the Tenant
Improvements pursuant to the Approved Construction Documents. Tenant
acknowledges that Landlord contemplates entering into a construction
contract (“Construction Contract”) with a third party (“Contractor”) who
will perform Landlord’s obligations hereunder. The construction of the
Tenant Improvements will be competitively bid to not less than three
(3)
and no more than five (5) qualified general contractors. The bidders
will
be selected by Landlord and a summary of those bids will be submitted
to
Tenant for review and approval by Tenant, which approval shall not
be
unreasonably withheld, conditioned or delayed. Tenant and Landlord
will
mutually agree to the final selection of Contractor to perform the
construction of the Tenant Improvements. Tenant agrees to look solely
to
Contractor for construction of the Tenant Improvements and Landlord’s
obligation shall be to use its best efforts to cause Contractor to
complete the Tenant Improvements substantially in accordance with
the
Approved Construction Documents. Landlord shall collect a Construction
Management fee, payable to Landlord, equal to five percent (5%) of
the
total construction costs.
|
36
Notwithstanding
anything to the contrary contained herein, Landlord shall have fourth five
(45)
days from the date the Construction Documents are approved to apply for and
obtain a construction permit from the City of Austin to construct and complete
such Tenant Improvements.
It
is
agreed and understood that all of the Tenant Improvements shall become the
property of Landlord upon expiration of this Lease.
3. Delays.
In the
event the Contractor shall be delayed in substantially completing the Tenant
Improvements and/or any additional work, if any, as a result of:
|
a)
|
Tenant’s
failure to promptly and timely furnish any information required by
Landlord hereunder; or
|
|
b)
|
Tenant’s
delay in approving the plans; or
|
|
c)
|
Tenant’s
changes in any plans, which changes are contrary to the Construction
Documents, including, without limitation, any change orders;
or
|
|
d)
|
Interference
with Landlord’s work by Tenant or any contractor or agent of Tenant;
or
|
|
e)
|
The
performance or lack of performance of any work by a person, firm
or
corporation employed by Tenant; or
|
|
f)
|
Tenant’s
request or use of materials, finishes or installations other than
building
standard; or
|
|
g)
|
Tenant’s
breach of this Construction Agreement or the
Lease,
|
then
the
date the Leased Premises are deemed ready for occupancy and the date for payment
of rent pursuant to the terms of this Lease shall be accelerated by the number
of days of such delays.
4. Early
Entry.
Landlord will permit Tenant and its agents to enter the Leased Premises prior
to
the date the Leased Premises are ready for occupancy, in order that Tenant
may
perform through its own contractors such other work and decorations in and
to
the Leased Premises as Landlord may approve in writing. The foregoing license
to
enter the Leased Premises prior to the date the same are ready for occupancy,
however, is conditioned upon Tenant’s contractors working in harmony and not
interfering with Contractor or any subcontractors. Such license is further
conditioned upon workers’ compensation and public liability insurance and
property damage insurance, all in amounts and with companies and on forms
satisfactory to Landlord, being provided and at all times maintained by Tenant’s
contractors and certificates of such insurance being furnished to Landlord
prior
to Tenant proceeding with any work. Additionally, Tenant’s contractors must
notify and coordinate with Contractor for scheduling work in the Leased
Premises, prior to completion of the Tenant Improvements. So long as normal
day-to-day business activities of Tenant have not commenced during such early
entry, Tenant shall not be considered in occupancy of the Leased Premises.
Landlord shall not be liable in any way for any injury, loss or damage which
may
occur to Tenant, its employees, contractors, agents, workmen and mechanics,
or
any one or more of them, or to any of Tenant’s decorations or installations so
made prior to the Commencement Date, the same being solely at Tenant’s risk and
Tenant indemnifies and agrees to hold Landlord harmless from any and all claims
arising therefrom, regardless of whether such claims or damages are based in
whole or in part upon the negligence of Landlord, Contractor or any of their
respective employees, agents or contractors.
37
5. Punch
List.
Prior
to occupancy of the Leased Premises by Tenant, Tenant shall submit to Landlord
and Contractor a written list of any items that are of inferior workmanship
or
incomplete requiring “touch up” or minor finish, or items that are not in
accordance with the approved Construction Documents (said list being hereinafter
referred to as the “Punch List”). Upon receipt of the Punch List, Contractor
shall have thirty (30) days thereafter to complete the Punch List
items.
6. Tenant
Improvement Allowance.
Landlord hereby grants to Tenant an allowance in an amount not to exceed $10.00
per square foot of Net Rentable Area within the Leased Premises for improvements
in and to the Leased Premises (herein referred to as the “Improvement
Allowance”). Any unused Improvement Allowance shall become the property of the
Landlord.
Upon
Tenant’s written request, Tenant shall have the right to amortize, into Tenant’s
Basic Rental, up to an additional three dollars ($3.00) per net rentable square
foot. Such amortization shall be at an interest rate of 8%. Tenant’s request for
such amortization must be received by Landlord within 30 days from the
Commencement Date.
7. NO
WARRANTIES.
LANDLORD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE,
IN
CONNECTION WITH SPACE PLANS, CONSTRUCTION DOCUMENTS OR TENANT
IMPROVEMENTS.
38
EXHIBIT
“G-1”
TO
LEASE
BETWEEN CGLIC/SAR AS LANDLORD
AND
WINTEGRA, INC. AS TENANT
“Approved
Space Plan”
39
EXHIBIT
“H”
TO
LEASE
BETWEEN CGLIC/SAR AS LANDLORD
AND
WINTEGRA, INC. AS TENANT
ERISA
PARTIES IN INTEREST LIST
SEPARATE
ACCOUNT R
|
1.
|
Treasurer
of the State of North Carolina
|
|
2.
|
The
United Nations Joint Staff Pension
Fund
|
|
3.
|
Maryland
State Retirement System
|
|
4.
|
International
Bank for Reconstruction and Development World Bank Pension Department
(Staff Retirement Plan 1)
|
|
5.
|
The
School Employees Retirement Board of
Ohio
|
|
6.
|
International
Monetary Fund as Trustee of the Staff Retirement
Plan
|
|
7.
|
Public
School Teachers Pension & Retirement Fund of
Chicago
|
PLEASE
BE
ADVISED THAT THE PRECEDING IS A LIST OF RETIREMENT PLANS WHICH MAY HAVE AN
INTEREST IN SEPARATE ACCOUNT R AS OF THE DATE HEREOF IN EXCESS OF TEN PERCENT
(10%). THIS EXHIBIT IS SUBJECT TO CHANGE AS HOLDERS OF INTEREST ARE EITHER
ADDED
OR SUBTRACTED OR THE PERCENTAGE INTEREST HELD BY ANY PLAN CHANGES.
As
of
August 1, 1998
Party-in-Interest
Definition
The
term
a party-in-interest means, as to an employee benefit plan -
| (a) |
any
fiduciary (including, but not limited to, an administrator, officer,
trustee, or custodian), counsel, or employee of such employee benefit
plan;
|
|
(b)
|
a
person providing services to such
plan;
|
|
(c)
|
an
employer any of whose employees are covered by such
plan;
|
40
|
(d)
|
an
employee organization any of whose members are covered by such
plan;
|
|
(e)
|
an
owner, direct or indirect, of 50 percent or more of -
|
|
(i)
|
the
combined voting power of all classes of stock entitled to vote or
the
total value of shares of all classes of stock of a
corporation,
|
|
(ii)
|
the
capital interest or the profits interest of a partnership,
or
|
|
(iii)
|
the
beneficial interest of a trust or unincorporated enterprise, which
is an
employer or an employee organization described in subparagraph (C)
or
(D);
|
| (f) |
a
relative (as defined in paragraph (15) of any individual described
in
subparagraph (A), (B), (C) or (E);
|
|
(g)
|
a
corporation, partnership, or trust or estate of which (or in which)
50
percent or more of -
|
|
(i)
|
the
combined voting power of all classes of stock entitled to vote or
the
total value of shares of all classes of stock of such
corporation,
|
| (ii) |
the
capital interest or profits interest of such partnership,
or
|
|
(iv)
|
the
beneficial interest of such trust or estate, is owned directly or
indirectly, or held by persons described in subparagraph (A), (B),
(C),
(D), or (E);
|
|
(h)
|
an
employee, officer, director (or an individual having powers or
responsibilities similar to those of officers or directors), or a
10
percent or more shareholder directly or indirectly, of a person described
in subparagraph (B), (C), (D), (E), or (G), or of the employee benefit
plan; or
|
|
(i)
|
a
10 percent or more (directly or indirectly in capital or profits)
partner
or joint venturer of a person described in subparagraph (B), (C),
(D),
(E), or (G).
|
The
Secretary, after consultation and coordination with the Secretary of the
Treasury, may be regulation prescribed a percentage lower than 50 percent of
subparagraphs (E) and (G) and lower than 10 percent for subparagraphs (H) or
(I). The Secretary may prescribe regulations for determining the ownership
(direct or indirect) of profits and beneficial interests, and the manner in
which indirect stockholdings are taken into account. Any person who is a
party-in-interest with respect to a plan to which a trust described in Section
510(C)(22) of the Internal Revenue Code of 1986 is permitted to make payments
under Section 4223 shall be treated as a party-in-interest with respect to
such
trust.
41
