1
OFFICE LEASE
Property Address: Crown Point Corporate Center
000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000-0000
Lessor: Transwestern - Xxxxxxxx I, LLC
Lessee: PMC - Sierra US, Inc.
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Commencement: March 1, 2001
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Expiration: February 28, 2011
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OFFICE LEASE
THIS LEASE (the "Lease) is made as of January 9, 2001, by and between
Transwestern - Xxxxxxxx I, LLC, a Delaware limited liability company ("Lessor"),
and PMC - Sierra US, Inc., a Delaware corporation ("Lessee").
1. DESCRIPTION OF PREMISES. Lessor, in consideration of the rents
to be paid by Lessee and other covenants of Lessee contained herein, does hereby
lease to Lessee the premises described below (the "Premises"):
Suite 300, consisting of 18,844 rentable square feet, Xxxxx 000,
consisting of 26,691 rentable square feet, and Suite 500, consisting of
26,495 rentable square feet for a total of 72,030 rentable square feet
as outlined on the attached Exhibit A and described in Exhibit B,
located in a building (the "Building") commonly known as Crown Point
Corporate Center, 000 Xxxxxxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx
00000-0000. The final calculations for all three (3) Suites will be
done in accordance with modified BOMA 1996 standards and any applicable
adjustment made to this paragraph with regard to the total rentable
area.
2. TERM. The term of this Lease (the "Term") shall be for a period of
one hundred twenty (120) months, commencing sixty (60) days after delivery of
the Premises to Lessee for the construction of the Tenant Improvements (the
"Commencement Date"), and ending at midnight on the 28th day of February, 2011
(the "Expiration Date"). Lessor shall deliver the Premises to Tenant for the
construction of the Tenant Improvements within three (3) business days from the
full execution of this Lease. In the event the Premises are not delivered to
Lessee on or before January 15, 2001, then Lessee may terminate this Lease upon
written notice to Lessor.
3. RENT. Lessee agrees to pay Lessor, without demand, deduction or
offset, annual rent for the Term of this Lease in the amount of One Million
Eight Hundred Thirty Six Thousand Seven Hundred Sixty Five and No/100 Dollars
($1,836,765.00) per annum, payable monthly in advance on the Commencement Date
and on the first business day of each and every subsequent month in the amount
of One Hundred Fifty Three Thousand Sixty Three and 75/100 Dollars ($153,063.75)
("Basic Rent"). If the Term of this Lease shall commence or expire on a day
other than the first day of a calendar month, the rent for any partial month
shall be pro-rated. All rent payments shall be paid to Lessor's at its address
specified in paragraph 30 below, or such other place as Lessor designates in
writing. Whenever it is provided by the terms of this Lease that Lessee is
required to make any other payments to Lessor, such payments shall be deemed to
be additional rent.
4. ACCEPTANCE OF PREMISES. Occupancy of the Premises by Lessee shall
constitute its acceptance of same, except for material defects and deficiencies
specified in writing by Lessee to Lessor within thirty (30) days after Lessee's
occupancy. Lessee acknowledges that Lessor has not made any warranties or
representations, oral or written, as to the use or fitness of the Premises for
any particular purpose, except for use permitted in Section 6 of this Lease.
Lessor shall not be responsible for obtaining any governmental approvals or
permits necessary to enable Lessee to occupy or use the Premises (other than the
certificate of occupancy and other approvals related to work done by Lessor to
construct the Premises), same being the sole responsibility of Lessee. Lessor
shall not be responsible for obtaining any certificates of occupancy or other
approvals required in connection with construction work done by Lessee or
contractors engaged by Lessee. Notwithstanding the foregoing, Lessor represents
and warrants that (i) the Base Building work was constructed in accordance with
Exhibit G and shall be in good condition and shall be in compliance with all
laws, and (ii) the Building systems serving the Premises shall be in good
operating condition as of the Delivery Date.
5. (a) DELAY IN COMMENCEMENT. INTENTIONALLY DELETED.
(b) EARLY POSSESSION. INTENTIONALLY DELETED.
6. USE AND COMPLIANCE WITH LAW. The Premises shall be used only for
general offices, sales, software design, electrical engineering labs and all
legal uses typical to Lessee's business operations, and for no other purpose
without Lessor's prior written consent. Lessee shall not use the Premises for
any unlawful purpose or so as to constitute a nuisance. Lessee covenants and
agrees to comply with all restrictive covenants and ordinances and regulations
of governmental authorities applicable to the Premises.
Lessee, at Lessee's sole expense, shall comply with all laws, rules,
orders, ordinances, directions, regulations and requirements of federal, state,
county and municipal authorities now in force, which shall impose any duty upon
Lessor or Lessee with respect to the use and occupation of the Premises by
Lessee subsequent to the Commencement Date, including without limitation, The
Americans With Disabilities Act of 1990 (the "ADA"). Lessor shall, at is sole
cost and expense, be responsible for delivering the Building in compliance with
all laws, rules, orders, ordinances, or regulations of any state, federal,
local, county, or municipal authority then in force, including, without
limitation, the ADA, as of the Commencement Date; and, Lessor's responsibility
for compliance with ADA from and after the Commencement Date shall be limited to
the common areas and restrooms of the Building, but not the Premises. Following
the Commencement Date, Lessor shall be required at its sole cost and expense to
complete any structural alterations to the Building and/or common areas required
to comply with any laws, rules, orders, ordinances or regulations of any state,
federal, local, county or municipal authority applicable to the Building and/or
common areas, including, without limitation, the ADA; and, to the extent that
Lessee changes its use of the Premises or makes any alterations to the Premises
subsequent to the Commencement Date in accordance with the terms hereof, Lessee
shall be required, at its sole cost and expense, to complete any such
alterations to the Premises required to comply with any laws, rules, orders,
ordinances or regulations of any state, federal, local, county or municipal
authority applicable to the Premises, including, without limitation, the ADA.
If either party receives any notices alleging violation of ADA relating
to any portion of the Building or of the Premises; any written claims or threats
regarding non-compliance with ADA and relating to any portion of the Building or
of the Premises; or any governmental or regulatory actions or investigations
instituted or threatened regarding non-compliance with ADA and relating to any
portion of the Building or of the Premises, then the party receiving such notice
shall, within ten (10) days after receipt of the same, advise the other in
writing, and provide the other with copies of any such claim, threat, action or
investigation (as applicable).
7. SIGNS. Subject to Section 9 of Rider No. 1, Lessee shall not,
without the prior written consent of Lessor (which consent shall not be
unreasonably withheld), the architectural review committee and any governmental
agency having jurisdiction over the Building, place any signs or advertising
matter or material on the exterior or interior of the Building. If Lessor
approves any signage or advertising matter or material, Lessee shall remove same
at the request of Lessor but no later than at the termination or expiration of
this Lease.
8. QUIET ENJOYMENT AND COVENANT OF TITLE. Lessor covenants that it has
full right and power to execute this Lease and to grant the estate demised
herein, and the Lessee, upon payment of the rents herein reserved and performing
the terms, conditions, and covenants herein contained, shall peacefully and
quietly have, hold, and enjoy the Premises during the full Term of this Lease,
and any extension hereof, from all persons claiming through Lessor.
9.LESSOR'S SERVICES.
(a) Lessee, its agents, contractors, employees or invitees shall have
access to the Premises twenty-four (24) hours a day, seven (7) days a week.
(b) Lessor shall furnish the following services to Lessee at Lessor's
cost on and during each business day (excluding Saturdays, Sundays and federal
holidays), except that water and electricity shall be made available to the
Premises twenty-four (24) hours a day, seven (7) days a week:
(i) Elevator service (if elevators are in the Building).
(ii) Daily janitorial service and supplies for the Common Areas
as described in Exhibit D in the Building and Premises, Monday through Friday.
(iii) Heating and air conditioning during the appropriate seasons
at levels similar to those maintained in similar Class "A" office buildings
during normal business hours (Monday through Friday, 8:00 a.m. to 6:00 p.m. and
Saturday, 9:00 a.m. to 1:00 p.m.).
(iv) Hot and cold water as required for drinking, cleaning and
lavatory purposes.
(v) Electricity supplied through the Building's 110-volt 20 amp
circuits for lighting purposes and for operation of small business machines and
equipment (e.g., fax machines, adding machines and similar equipment). If Lessee
desires dedicated or 220-volt electrical circuits, or wishes to install
electrical equipment which will cause usage of electricity within the Premises
to be above normal electrical usage for general office space, Lessee shall
obtain Lessor's written consent prior to installing such equipment or circuits.
Any additional electrical circuits approved shall be installed by Lessor at
Lessee's expense. Lessor may consider, among other relevant factors, the effects
of the electrical load of the Premises upon the Building's circuits in giving or
withholding its consent. Lessor may also require that Lessee pay periodically
the additional direct expense of electricity supplied through Lessee's special
circuits or excess electricity usage, including the cost of installing any
necessary sub-meters.
(c) Except to the extent of the gross negligence or willful misconduct
of Lessor or its agents or contractors, Lessor shall not be liable for the
interruption of any of the above-mentioned services caused by strikes, lockouts,
accidents or other causes. Any interruption of service shall never be deemed an
eviction or disturbance of Lessee's use and possession of the Premises or any
part thereof, or render Lessor liable to Lessee for damages, or relieve Lessee
from performance of Lessee's obligation under this Lease, unless the
interruption is the result of gross negligence by Lessor. Lessor shall use
commercially reasonable efforts to restore the interrupted service within a
reasonable time after interruption if the cause of interruption is subject to
Lessor's control.
(d) Lessor shall also provide exterior maintenance of the Building and
its appurtenant grounds and facilities (the "Project"), including, but not
limited to, parking lot repairs, landscape maintenance, structural repairs and
roof repairs, so that the Project is maintained as a first class office building
property.
10. INCREASE IN ANNUAL OPERATING COSTS. Lessee shall pay to Lessor,
Lessee's Pro-Rata Share (as hereinafter defined), of the increases during the
Term of Basic Cost (as hereinafter defined) over the Initial Basic Cost (as
hereinafter defined). "Basic Cost", as that term is used herein, shall consist
of all operating expenses, including real estate taxes, of the Project which
shall be computed on the accrual basis and shall consist of all expenditures to
maintain all facilities in the operation of the Project and such additional
facilities in subsequent years as may be determined by Lessor to be necessary.
The "Initial Basic Cost" is stipulated to be the total operating expenses for
the calendar year 2002. "Lessee's Pro-Rata Share" is defined, for purposes of
this Lease, as the percentage derived by dividing the rentable square footage of
the Premises by the total rentable square footage of the Building. The term
"operating expenses" as used herein shall mean all expenses, costs and
disbursements (but not replacement of capital investment items or specific costs
especially billed to and paid by specific tenants) of every kind and nature
which Lessor shall pay or become obligated to pay because of or in connection
with the ownership and operation of the Project, including but not limited to,
the following:
(a) Wages and salaries of all employees (excluding executives' wages
and salaries) engaged in operating and maintenance or security of the Project
including taxes, insurance and benefits relating thereto.
(b) All supplies and materials used in operation and maintenance of the
Project.
(c) Cost of all utilities, including surcharges, for the Project,
including the cost of water, sewer, power, heating, lighting, air conditioning
and ventilating for the Project.
(d) Cost of all maintenance and service agreements for the Project and
the equipment therein, including but not limited to, security and energy
management services, window cleaning, elevator maintenance and janitorial
service.
(e) Cost of all insurance relating to the Project, including the cost
of casualty and liability insurance applicable to the Project and Lessor's
personal property used in connection therewith.
(f) Cost of repairs and general maintenance of the Project (excluding
repairs and general maintenance paid by proceeds of insurance or by Lessee or
other third parties, and alterations attributable solely to tenants of the
Building other than Lessee) including a reserve for parking facilities and roof
repairs of ten cents ($.10) per square foot of rentable area.
(g) Administrative wages and salaries and a management fee for the
manager of the Building not to exceed market property management fees in
Gaithersburg, Maryland currently at three percent (3%) of Basic Rent.
(h) Legal, accounting and appraisal fees relating to the ownership and
operation of the Building, but excluding fees payable with respect to any
leasing activity or disputes with tenants.
(i) The costs of any additional services not provided to the Building
at the Commencement Date but thereafter provided by Lessor in the prudent
management of the Building.
(j) The cost of any capital improvements made to the Project after the
Commencement Date that reduce other operating expenses or are required under any
governmental law or regulation that was not applicable to the Project at the
time it was constructed, such cost thereof to be amortized over such reasonable
period as Lessor shall determine together with interest on the unamortized
balance at the prime rate plus three percent (3%).
(k) Real estate taxes assessed against the Project.
Notwithstanding the foregoing, "Basic Cost" shall not include and
Lessee shall not have any obligation to perform or to pay for the following
(collectively, "Costs"): (i) Costs occasioned by casualty or by the exercise of
the power of eminent domain; (ii) Costs to correct any construction defect in
the Premises or the Building or to comply with any covenants, codes and
restrictions or law applicable to the Premises or the Building on the
Commencement Date; (iii) insurance Costs for coverage not customarily paid by
tenants of similar projects in the vicinity of the Premises; (iv) Costs incurred
in connection with the presence of any Hazardous Material in, on, under or about
the Building except to the extent caused by the release or emission of the
Hazardous Material in question by Lessee; (v) interest, charges and fees
incurred on debt; and (vi) Costs which could properly be capitalized under
generally accepted accounting principles, except as permitted in subsection (j)
above.
In the event that the Basic Cost for any calendar year during the Term
exceeds the Initial Basic Cost set out above, Lessee shall pay its proportionate
share of the year's increases in the Basic Cost for such year over the Initial
Basic Cost. Any amount payable by Lessee under this provision shall be deemed
additional rent. Lessor shall within the period of ninety (90) days (or as soon
thereafter as possible) after the close of such calendar year give Lessee a
statement of such year's Basic Cost and a comparison with the Initial Basic
Cost. Lessee shall pay Lessor within thirty (30) days of statement receipt
Lessee's proportionate share of such increases.
For each calendar year during the Term following the first calendar
year of occupancy, Lessor shall provide Lessee a comparison of the Initial Basic
Cost and the projected Basic Cost for such calendar year prior to January 1.
Lessee shall thereafter pay monthly an adjusted Monthly Base Rent for such
calendar year which shall include Lessee's proportionate share of any projected
increase in Basic Cost over the Initial Basic Cost. Lessor shall, within the
period of ninety days (or as soon thereafter as reasonably possible), after the
close of each calendar year following the first calendar year of occupancy,
provide Lessee a statement of such year's actual Basic Cost, showing the actual
increase in Basic cost over the Initial Basic Cost. Lessee shall pay Lessor
within thirty (30) days thereafter any underpayments, if any, in the increases
in Basic Cost over the Initial Basic Cost. Lessor shall reimburse Lessee for any
overpayments.
If the expiration of the Term shall be other than the first day of a
calendar year, the adjustment to Basic Cost shall be computed for the year of
termination on a pro-rated basis for the number of days under Lease in such
year.
Notwithstanding any other provision herein to the contrary, it is
agreed that in the event the Building is not fully occupied during any calendar
year, an adjustment shall be made in computing the Basic Cost for such year
(including, without limitation, the Initial Basic Cost) so that the Basic Cost
shall be computed for such year as though the Building had been ninety five
percent (95%) occupied during such year.
Lessee's obligations for this increase shall survive any termination by
lapse of time or otherwise. Lessee may audit the books, records and supporting
documents of Lessor to the extent necessary to determine the accuracy of
Lessor's statement of Basic Costs during normal business hours. Such audit, if
any, will occur within ninety (90) days after Lessee receives such statement.
Lessee shall bear the cost of such audit, unless such audit discloses that
Lessor has overstated the total costs by more than five percent (5%) of the
actual amount of such costs, in which event Lessor shall pay the cost of
Lessee's audit. Lessor shall promptly refund any overcharges to Lessee.
11. ALTERATIONS BY LESSEE. Lessee shall not make any alterations,
additions or other improvements to the Premises without obtaining Lessor's prior
written consent, which consent shall not be unreasonably withheld. Any and all
alterations, additions, or other improvements made by Lessee, with or without
the consent of Lessor, regardless of how attached (except movable trade
fixtures), shall be the property of Lessee during the Term of the Lease and
shall become the property of Lessor at the expiration or earlier termination of
the Lease, without compensation therefor to Lessee, unless otherwise agreed in
writing by Lessor; provided, however, that except with respect to the initial
Tenant Improvements, Lessor shall have the right to require that Lessee, upon
the termination or at the expiration of this Lease, remove any or all such
alterations, additions and improvements and restore the Premises to their
original condition, normal wear and tear excepted, by written notice to Lessee
of the alterations, additions or improvements required to be removed at the time
of consent.
In the event of any such alterations, additions or other improvements,
Lessee shall have all work done at its own expense. Request for such consent
shall be accompanied by plans stating in detail precisely what is to be done.
Lessee shall comply with the building codes, regulations and laws now or
hereafter to be made or enforced in the municipality, county and/or state in
which the Premises are located and which pertain to such work. Lessee shall
save Lessor harmless from and against all expenses, liens, claims or damages to
either property or person which may or might arise by reason of the making of
any such alterations, additions or other improvements. No approval of plans by
Lessor shall be deemed to be a representation or warranty by Lessor that such
plans or the work provided for therein will comply with applicable codes, laws
or regulations or be in conformance with any insurance or other requirements
which affect the Premises or the Building, and Lessee shall have the sole
responsibility of complying with all such requirements notwithstanding Lessor's
approval of Lessee's plans.
NOTICE IS HEREBY GIVEN THAT LESSOR SHALL NOT BE LIABLE FOR ANY LABOR OR
MATERIALS FURNISHED OR TO BE FURNISHED TO LESSEE UPON CREDIT, AND THAT NO
MECHANICS' OR OTHER LIEN FOR ANY SUCH LABOR OR MATERIALS SHALL ATTACH TO OR
AFFECT THE ESTATE OR INTEREST OF LESSOR IN AND TO THE PREMISES OR THE BUILDING.
WHENEVER AND AS OFTEN AS ANY LIEN ARISING OUT OF OR IN CONNECTION WITH ANY WORK
PERFORMED, MATERIALS FURNISHED OR OBLIGATIONS INCURRED BY OR ON BEHALF OF
LESSEE SHALL HAVE BEEN FILED AGAINST THE PREMISES OR THE BUILDING, OR IF ANY
CONDITIONAL XXXX OF SALE SHALL HAVE BEEN FILED FOR OR AFFECTING ANY MATERIALS,
MACHINERY OR FIXTURES USED IN THE CONSTRUCTION, REPAIR OR OPERATION THEREOF, OR
ANNEXED THERETO BY LESSEE, LESSEE SHALL FORTHWITH TAKE SUCH ACTION BY BONDING,
DEPOSIT OR PAYMENT AS WILL REMOVE OR SATISFY THE LIEN OR CONDITIONAL XXXX OF
SALE WITHIN TEN (10) DAYS OF LESSOR'S WRITTEN REQUEST THEREFOR.
If any alteration is made without the prior written consent of Lessor,
Lessor may correct or remove the same, and Lessee shall be liable for any and
all expenses incurred by Lessor in the performance of this work. It is further
understood and agreed by Lessor and Lessee that any alterations shall be
conducted on behalf of Lessee and not on behalf of Lessor. It is further
understood and agreed that in the event Lessor shall give its written consent to
Lessee's making any alterations, such written consent shall not be deemed to be
an agreement or consent by Lessor to subject Lessor's interest in the Premises
or the Building to any mechanic's liens which may be filed in respect of any
alterations made by or on behalf of Lessee. If any mechanic's or materialman's
lien (or a petition to establish such lien) is filed in connection with any
alteration, then such lien (or petition) shall be discharged by Lessee at
Lessee's expense within ten (10) days after Lessee has notice thereof by the
payment thereof or the filing of a bond acceptable to Lessor. If Lessee shall
fail to discharge any such mechanic's or materialman's lien, Lessor may, at its
option, discharge such lien and treat the cost thereof (including attorneys'
fees incurred in connection therewith) as additional rent payable with the next
monthly installment of Rent falling due; it being expressly agreed that such
discharge by Lessor shall not be deemed to waive or release the default of
Lessee in not discharging such lien.
12. USE OF THE PARKING FACILITIES. Lessee and its employees and
customers shall have the non-exclusive right, in common with Lessor, other
tenants of the Building and their respective employees, agents, contractors,
invitees, guests and customers, to park automobiles in the parking area provided
by Lessor, subject to such reasonable rules and regulations as Lessor may impose
from time to time, including the designation of specific areas in which
automobiles of Lessee, its employees, guests and customers must be parked.
Lessee shall be entitled to two hundred eighty eight (288) vehicle parking
spaces, unreserved and unassigned, and shall not use more parking spaces than
said number.
13. SUBLEASING AND ASSIGNMENT. Lessee and any approved assignee or
approved subtenant may not assign their rights under this Lease or the
applicable sublease, or sublet the whole or any part of the Premises, without
the prior written consent of Lessor in each instance, which consent shall not be
unreasonably withheld. Even if Lessor's consent is given, no subletting or
assignment shall release Lessee from any obligation pursuant to this Lease or
alter the primary liability and obligation of Lessee to pay the rent and to
perform all other obligations to be performed by Lessee hereunder. Acceptance of
rent by Lessor from an assignee or subtenant who has not been approved by Lessor
shall not waive the default created by failure to obtain Lessor's consent. As a
condition of approving any proposed assignee or subtenant, Lessor may require
such financial and other information concerning the proposed assignee or
subtenant that Lessor reasonably deems appropriate. Approval of a proposed
sublease or assignment in any one instance shall not affect Lessor's right to
approve all subsequent assignments and subleases. Lessor shall be furnished with
a duplicate executed original of all subleases and assignments. Notwithstanding
the foregoing provisions of this Section 13, Lessee may assign or sublease part
or all of the Premises without Lessor's consent to: (i) any corporation or
partnership that controls, is controlled by, or is under common control with
Lessee; or (ii) any corporation resulting from the merger or consolidation with
Lessee or to any entity that acquires all of Lessee's assets as a going concern
of the business that is being conducted on the Premises, as long as the assignee
or sublessee is a bona fide entity and assumes the obligations of Lessee, and
continues the same use as permitted hereunder; provided, Lessor must be given
written notice of any such assignment or subletting. Any profits from an
approved sublease or assignment (determined after allowing Lessee to be
reimbursed for Lessee's costs in connection therewith including, without
limitation, reasonable attorneys' fees and brokerage commissions and the
unamortized cost of improvements paid for by Lessee) shall be shared equally
(50/50) between Lessor and Lessee. Notwithstanding the foregoing, in the event
Lessee sublets Suite 300 during the Abatement Period, Lessee shall be
responsible for paying Lessor for the operating expenses for Suite 300 which are
currently estimated at $7.50 per rentable square foot per annum.
Notwithstanding anything to the contrary in the Lease, Lessee may,
without Lessor's prior written consent and without being subject to any bonus
rent provisions, sublet the Premises or assign the Lease to (a) a subsidiary,
affiliate, division or corporation controlling, controlled by or under common
control with Lessee, (b) a successor corporation related to Lessee by merger,
consolidation, nonbankruptcy reorganization, or government action, or (c) a
purchaser of substantially all of Lessee's assets located in the Premises (each
a "Permitted Assignee"). A sale or transfer of Lessee's capital stock shall not
be deemed an assignment, subletting or any other transfer of the Lease or the
Premises.
14. CARE OF PREMISES. Lessee agrees to take good care of the Premises,
and shall not suffer or permit any waste or injury thereto. Lessee shall pay for
all repairs to the Project necessary due to the acts of Lessee, its employees,
agents, contractors, customers, invitees or guests, or their use of the Project.
Upon the expiration or termination of this Lease, Lessee shall surrender the
Premises in as good condition as Lessee obtained same on the Commencement Date,
reasonable wear and tear, and damage from insured casualty (or other uninsured
casualty not caused by or attributable to Lessee) or condemnation excepted.
Notwithstanding the foregoing, Lessor shall be responsible for maintaining,
repairing and replacing the structural portions of the Premises and the Building
and the Building operating systems.
15. DAMAGE TO PREMISES. If the Premises shall be damaged by fire, the
elements, unavoidable accident or other casualty, but are not thereby rendered
untenantable in whole or in part, Lessor shall promptly at its expense cause
such damage to be repaired, and rent shall not be abated. If by reason of such
occurrence the Premises shall be rendered partially untenantable, Lessor shall
promptly at its expense cause the damage to be repaired, and rent meanwhile
shall be abated for the period of untenantability in proportion to the portion
of the Premises rendered untenantable. If by reason of such occurrence all of
the Premises are rendered untenantable, Lessor shall promptly at its expense
cause the damage to be repaired, and rent shall xxxxx until the Premises are
again tenantable. Lessor shall not be obligated to reconstruct or repair the
Building or the Premises except to the extent insurance proceeds have been
received by Lessor with respect to the event causing the damage. Lessor shall
not be required to repair, replace or insure any of Lessee's personal property.
No damages, compensation or claims shall be payable by Lessor for inconvenience,
loss of business or other consequential damages arising from any casualty,
maintenance, repair or restoration of the Premises, Building or Project. All
rent paid in advance shall be apportioned in accordance with the foregoing
provisions as of the date of damage; however, if the damage results wholly or in
part from the fault of Lessee, its agents, contractors, employees, customers,
guests or invitees, Lessee shall not be entitled to termination this Lease.
Notwithstanding the foregoing to the contrary, Lessor shall not be obligated to
repair damage or restore the Building or the Premises if Lessor's lender does
not make insurance proceeds available for such purpose and Lessor is unable to
obtain alternative financing within six (6) months after Lessor's receipt of
notice that its lender refuses to make the insurance proceeds available, after
having made good faith efforts to obtain such alternative financing.
Notwithstanding the foregoing, if the Premises are damaged by any peril other
than as a result wholly or in part of any act or omission of Lessee, its agents,
contractors, employees, invitees, licensees or visitors, then Lessee shall have
the option to terminate the Lease if the Premises cannot reasonably be, or are
not in fact, fully restored by Lessor to their prior condition within one
hundred eighty (180) days after the damage.
16. LIABILITY. (a) Lessor and its employees, officers, directors and
agents shall not be liable for any injury to persons or loss or damage to
property resulting from any cause other than the gross negligence or willful
misconduct of Lessor, its agents, employees or contractors. Except to the extent
of the gross negligence or willful misconduct of Lessor, its agents, employees
or contractors, Lessee shall indemnify and save Lessor harmless from all suits,
actions, damages, liability and expense arising from or out of any occurrence
in, upon, at or from the Project or the occupancy or use by Lessee of the
Premises, and occasioned wholly or in part by any act or omission of Lessee, its
agents, contractors, employees, invitees, licensees or visitors. To this end,
Lessee shall at all times during the term of this Lease or any renewal thereof
carry with an insurance carrier licensed to operate in the state in which the
Premises are located, Comprehensive General Liability Insurance including
Blanket Contractual Liability coverage including Lessor as an additional insured
(but only with respect to the operations of Lessee), with limits of liability of
not less than $1,000,000 combined single limit for personal injury and property
damage and containing a waiver of subrogation clause. A duplicate original or
agent certified copy. A certificate of insurance shall be furnished to Lessor
upon request. Lessee shall notify Lessor promptly of any accident or loss in the
Premises or the Project or of any defects therein or in the equipment and
fixtures thereof of which Lessee has knowledge.
(b) Lessor shall maintain standard "all risk" property insurance
covering the Building for the full replacement cost thereof.
(c) Mutual Waiver of Subrogation. Notwithstanding anything to the
contrary in the Lease, the parties hereto release each other and their
respective agents, employees, successors and assigns from all liability for
damage to any property that is actually covered by property insurance in force
or which would normally be covered by full replacement value "all risk" property
insurance, without regard to the negligence or willful misconduct of the entity
so released. Each party shall cause each insurance policy it obtains to include
a waiver of subrogation regarding the liabilities released hereby.
17. INSPECTION OF PREMISES. Lessor and Lessor's agents shall have free
access during normal business hours to the Premises for the purposes of
inspection, maintenance and repair. Lessor shall have the right to show the
Premises to prospective tenants during the last one hundred eighty (180) days of
the Term of this Lease. Lessor and Lessor's agents, except in the case of
emergency or scheduled cleaning, shall provide Lessee with twenty-four (24)
hours' notice prior to entry of the Premises. Any entry by Lessor and Lessor's
agents shall not impair Lessee's operations more than reasonably necessary and
shall be subject to Lessee's reasonable security measures.
18. HAZARDOUS MATERIALS. (a) Without Lessor's prior written consent,
Lessee shall not cause or permit any Hazardous Material to be brought upon, kept
or used in or about the Premises by Lessee, its agents, employees, contractors,
customers, guests or invitees, except for small quantities of such Hazardous
Material incidental to Lessee's business.
(b) Any Hazardous Material permitted on the Premises as provided in
Section 18(a) and all containers therefor, shall be used, kept, stored and
disposed of in a manner that complies with all federal, state and local laws or
regulations applicable to this Hazardous Material.
(c) Lessee shall not discharge, leak or emit, or permit to be
discharged, leaked or emitted, any material into the atmosphere, ground, sewer
system or any body of water, if that material (as is reasonably determined by
the Lessor or any governmental authority) does or may pollute or contaminate the
same or may adversely affect (aa) the health, welfare or safety of persons,
whether located on the Premises or elsewhere, or (bb) the condition, use or
enjoyment of the Building or any other real or personal property and which would
result in a violation of applicable environmental laws.
(d) At the commencement of each Lease Year, Lessee shall disclose to
Lessor the names and approximate amounts of all Hazardous Material that Lessee
intends to store, use or dispose of on the Premises in the coming Lease Year. In
addition, at the commencement of each Lease Year (beginning with the second
Lease Year), Lessee shall disclose to Lessor the names and amounts of all
Hazardous Material that to Lessee's knowledge were actually used, stored or
disposed of on the Premises, if those materials were not previously identified
to Lessor at the commencement of the previous Lease Years.
(e) As used herein, the term "Hazardous Material" means (aa) any
"hazardous waste" as defined by the Resource Conservation and Recovery Act of
1976, as amended from time to time, and regulations promulgated thereunder; (bb)
any "hazardous substance" as defined by the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
and regulations promulgated thereunder; (cc) any oil, petroleum products and
their by-products, other than those used in automotive or recreational activity,
boats or motorcycles which are stored on the Premises in accordance with all
applicable laws and minor leakage and spills which are, upon written request of
Lessor, promptly cleaned up; and (dd) any substance that is or becomes regulated
by any federal, state, or local governmental authority.
(f) Lessee hereby agrees that it shall be fully liable for all costs
and expenses related to the use, storage and disposal of Hazardous Material on
the Premises by the Lessee, and the Lessee shall give immediate notice to the
Lessor of any violation or potential violation of the provisions of Section
18(b). Lessee shall defend, indemnify and hold harmless Lessor and its agents
from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs or expenses (including without limitation,
reasonable attorneys' and consultants' fees, court costs and litigation
expenses) of whatever kind or nature, known or unknown, contingent or otherwise,
arising out of (aa) the presence, disposal, release or threatened release of any
such Hazardous Material that is on, from or affecting the soil, water,
vegetation, buildings, personal property, persons, animals or otherwise; (bb)
any violation of any laws applicable thereto. The provisions of this Section
18(f) shall be in addition to any other obligations and liabilities Lessee may
have to Lessor at law or in equity and shall survive the transactions
contemplated herein and shall survive the termination of this Lease.
(g) To the best knowledge of Lessor, (a) no Hazardous Materials is
present on the Building or the soil, surface water or groundwater thereof, (b)
no underground storage tanks are present on the Building, and (c) no action,
proceeding or claim is pending or threatened regarding the Building concerning
any Hazardous Materials or pursuant to any environmental law. Under no
circumstance shall Lessee be liable for, and Lessor shall indemnify, defend,
protect and hold harmless Lessee, its agents, contractors, stockholders,
directors, successors, representatives, and assigns from and against, all
losses, costs, claims, liabilities and damages (including attorneys' and
consultants' fees) of every type and nature, directly or indirectly arising out
of or in connection with any Hazardous Materials present at any time on or about
the Building, or the soil, air, improvements, groundwater or surface water
thereof, or the violation of any laws, orders or regulations, relating to any
such Hazardous Materials, except to the extent that any of the foregoing
actually results from the release or emission of Hazardous Materials by Lessee
or its agents or employees in violation of applicable environmental laws.
19. INDEMNIFICATION. Except to the extent of the gross negligence or
willful misconduct of Lessor or its agents, employees or contractors, Lessee
hereby agrees to indemnify, defend and hold Lessor and Lessor's agents and
employees harmless from any and all claims, damages, liabilities or expenses
including but not limited to reasonable attorneys' fees, arising out of (aa)
Lessee's use of the Premises or the Building, (bb) any and all claims arising
from any breach or default in the performance of any obligation of Lessee and/or
(cc) any act, omission or negligence of Lessee, its agents or employees. Lessee
agrees to procure and keep in force during the Term hereof a contractual
liability endorsement to its public liability policy, specifically endorsed to
cover the indemnity provision of this section. Except to the extent of the gross
negligence or willful misconduct of Lessor or its agents, employees or
contractors, Lessee further releases Lessor and Lessor's agents and employees
from liability for any damages sustained by Lessee or any other person claiming
by, through or under Lessee due to the Premises, the Building, or any part
thereof or any appurtenances thereto becoming out of repair, or due to the
happening of any accident including, but not limited to, any damage caused by
water, snow, windstorm, tornado, gas, steam, electrical wiring, sprinkler system
plumbing, heating and air conditioning apparatus and from any acts or omissions
of co-tenants or other occupants of the Building. Lessor and Lessor's agents and
employees shall not be liable for any damage to or loss of Lessee's personal
property, inventory, fixtures or improvements, from any cause whatsoever except
the affirmative acts of proven gross negligence of Lessor, or its agents,
employees or contractors and then only to the extent not covered by the property
insurance required to be obtained by Lessee in accordance with Section 16
hereof.
20. RULES AND REGULATIONS. Lessee shall during the Term of this Lease,
at its sole cost and expense, comply with all laws, ordinances, regulations,
orders and requirements of any governmental authority which may be applicable to
the Premises or to the use, manner of use or occupancy thereof, whether or not
the same shall interfere with the use or occupancy of the Premises. Lessee shall
give prompt notice to Lessor of any notice it receives of the violation of any
law or requirement of any public authority with respect to the Premises or use
or occupation thereof. The rules and regulations attached to this Lease as
Exhibit E shall be and are hereby made a part of this Lease. Lessee, its
employees, agents, contractors, invitees, customers and guests shall perform and
abide by such rules and regulations, and any amendments or additions to such
rules and regulations as may be made from time to time by Lessor.
21. CONDEMNATION. If all or a part of the Premises sufficient to render
same unusable for Lessee's purposes (in Lessor's reasonable judgement) or all
means of access to the Premises shall be condemned for a period in excess of one
hundred twenty (120) days or sold under threat of condemnation, this Lease shall
terminate and Lessee shall have no claim against Lessor or to any portion of the
award in condemnation for the value of any unexpired Term of this Lease. Lessee
may seek to recover independently compensation from the condemning authority for
moving expenses, the value of any of Lessee's property taken (other than
Lessee's leasehold interest in the Premises) or other compensable loss or damage
so long as Lessor's award is not reduced as a result. In the event of a
temporary taking of one hundred twenty (120) days or less, this Lease shall not
terminate, but the Term hereof shall be extended by the period of the taking and
the rent shall xxxxx in proportion to the area taken for the period of such
taking.
22. DEFAULT AND REMEDIES. (a) If Lessee does not pay any rent or other
sum payable by Lessee pursuant to this Lease and such default continues for a
period of ten (10) days after written notice is given to Lessee (provided,
however, that no written notice shall be required if Lessor has previously given
written notice of failure to pay rent on two separate occasions during the then
current calendar year), or if Lessee shall fail to perform any other covenant,
agreement, or obligation of Lessee pursuant to this Lease and such default
continues for thirty (30) days after written notice thereof is given to Lessee
or such longer period reasonably necessary to complete such cure, or if Lessee
should become bankrupt or any debtor proceedings are taken by or against Lessee,
or if Lessee abandons the Premises, then Lessor shall have the option to
exercise any one or more of the following rights and remedies:
(i) Lessor may terminate this Lease by written notice to
Lessee, in which event this Lease, all rights of Lessee, and all duties of
Lessor shall immediately cease and terminate, and Lessor may re-enter and take
possession of the Premises, remove all persons and property from the Premises
and store such property in a public warehouse or elsewhere at the cost of, and
for the account of, Lessee and enjoy the Premises free of Lessee's estate
pursuant to this Lease, without prejudice, however, to any and all rights of
action against Lessee that Lessor may have for rent, damages, or breach of this
Lease, in respect of which Lessee shall remain and continue liable
notwithstanding such termination;
(ii) Lessor shall have the right to re-enter the Premises and
remove all persons and property from the Premises and store such property in a
public warehouse or elsewhere at the cost of, and for the account of Lessee,
without terminating this Lease. Lessor shall have the right to take such action
without service of notice except as may be expressly required herein or by
applicable law and without resort to legal process (unless required by law) and
without being deemed guilty of trespass or becoming liable for any loss or
damage which may be occasioned thereby. If Lessor elects to re-enter the
Premises as aforesaid, Lessor may, at any time thereafter, elect to terminate
this Lease by giving written notice to Lessee of such election. Whether or not
Lessor elects to re-enter the Premises or takes possession of the Premises
pursuant to legal proceedings or pursuant to any notice required by law, Lessor
may, at its option, re-let the Premises or any portion thereof for the benefit
of Lessee for such Term or Terms (whether shorter or longer than the Term of
this Lease) and at such rental and upon such other Terms and conditions as
Lessor, in its sole discretion, deems advisable, and, at the expense of Lessee,
Lessor shall have the right to make such repairs or alterations to the Premises
as Lessor deems necessary in order to re-let same. Provided this Lease has not
been terminated by Lessor, upon each such re-letting all rentals actually
received by Lessor from such re-letting applicable to the unexpired Term of this
Lease shall be applied as follows: First, to the payment of any costs and
expenses of such re-letting, including costs incurred by Lessor for brokerage
fees, legal fees and alterations and repairs to the Premises; Second, to the
payment of any indebtedness other than rent due hereunder from Lessee; Third, to
payment of any unpaid portion of rent then due. On the scheduled expiration date
of this Lease, Lessor shall pay the residue, if any, to Lessee. No such re-entry
or taking of possession of the Premises by Lessor shall be construed or shall
operate as an election by Lessor to terminate this Lease unless written notice
of termination is given by Lessor to Lessee unless Lessor has previously
terminated the Lease, or this Lease is terminated by an order or decree of a
court of competent jurisdiction;
(iii) The present value of all rent (annual rent and all
payment of additional rent reasonably ascertainable) for the remainder of the
then current Term shall become due and payable after subtracting, in Lessor's
reasonable opinion, the rental value of the Premises after factoring in the
market cost of re-letting the Premises, at the option of Lessor.
(b) In addition to all remedies specified in this Lease, Lessor shall
have all remedies available in equity and/or available pursuant to applicable
law.
(c) No re-entry, taking possession of, or repair of the Premises by
Lessor, termination of this Lease or any other action taken by Lessor as a
result of any default of Lessee shall relieve Lessee of any of its liabilities
or obligations hereunder which arose prior to or by reason of such termination,
whether or not the Premises are re-let.
(d) All remedies of Lessor shall be cumulative. Election by Lessor to
exercise any remedy shall not prevent or be deemed a waiver of Lessor's right to
thereafter exercise any other remedy.
(e) Lessee agrees to pay upon demand all reasonable costs, fees and
expenses (including, without limitation, court costs and reasonable attorney's
fees) incurred by Lessor in enforcing this Lease.
(f) Lessor shall use commercially reasonable efforts to mitigate
damages.
23. HOLDING OVER. If Lessee remains in possession of the Premises after
the expiration or termination of the Term of this Lease without Lessor's written
consent, such possession shall, at Lessor's option, (a) be a tenancy at
sufferance only, during which tenancy at sufferance annual rent shall be due and
payable at 150% of the annual rent due for the last Term, or (b) result in an
extension of this Lease on a month-to-month basis, upon the terms and conditions
applicable to the last year of the preceding Term, except annual rent, which
shall be at 150% of the rent due during the last month of the Term. All other
provisions of this Lease shall remain in force during the period of any such
tenancy at sufferance or month-to-month renewal. Acceptance of rent by Lessor
during any holdover tenancy at sufferance shall not waive the default created by
Lessee's holdover or Lessor's option to select the tenancy created by the
holdover.
24. SURRENDER OF PREMISES. Lessee shall surrender the Premises at the
expiration or sooner termination of the Lease Term, broom-cleaned, with all
rubbish removed, free of subtenancies, and in the same condition and repair as
of the completion of the Tenant Improvements, reasonable wear and tear and
damage from insured casualty (or other uninsured casualty not caused by or
attributed to Lessee) and condemnation excepted; and, Lessee shall have removed
all of its property from the Premises. Lessee shall deliver all keys to Lessor
or Lessor's agent.
On termination of this Lease or vacation of the Premises by Lessee,
Lessee shall remove all of its machinery and equipment, and shall restore the
Premises, at Lessee's sole expense, to the same condition as existed at the
Commencement Date, ordinary wear and tear and damage by insured casualty (or
other uninsured casualty not caused by or attributed to Lessee) only excepted.
The foregoing duties of Lessee are subject to the requirements that upon the
expiration of the Term of this Lease, or any renewal or extension thereof, or
upon the earlier termination of this Lease, Lessee shall be obligated to
perform, at Lessee's election, one of the following alternative options: (a) to
disconnect and remove all conduits, pipes, wires, cables, and other components
thereof installed by or for Lessee in the Premises, or (b) to, cut, disconnect
and cap all conduits, pipes, wires, cables and other components thereof and seal
them off in place in a safe and lawful manner. In addition to the foregoing, and
as a separate obligation of Lessee under this Lease, upon the expiration of the
Term of this Lease, or any renewal or extension thereof, or upon the earlier
termination of this Lease, Lessee shall repair and restore all roof top,
Building common utility, and easement areas damaged by Lessee. If this Lease is
terminated prior to the end of the Term of this Lease, then Lessee shall have an
additional thirty (30) days after the termination of this Lease within which
time period Lessee may remove its machinery, equipment and trade fixtures,
provided Lessee is not otherwise in Default. Any property remaining after said
thirty (30) days shall be deemed abandoned by Lessee.
25. INFORMATION CONCERNING LESSEE. Lessee shall furnish within fifteen
(15) days after request from Lessor an audited financial statement dated not
more than twelve (12) months prior to Lessor's request. Such financial statement
shall be prepared in accordance with generally accepted accounting principles
and certified by a certified public accountant. A general partner, managing
member or officer of Lessee shall furnish a certification to Lessor to the
effect that there either has or has not been any material adverse change in the
financial condition of Lessee since the date of the financial statement
submitted, and if such certification states that there has been a material
adverse change, furnishing such details concerning same as Lessor may reasonably
request.
26. AUTHORITY OF LESSEE. Lessee shall furnish to Lessor within fifteen
(15) days after request from Lessor such corporate resolutions, certificates of
incumbency, partnership resolutions, partnership agreements, legal opinions or
other information as Lessor may reasonably request in order to confirm that the
execution and delivery of this Lease has been duly authorized by Lessee and that
the person(s) executing this Lease on behalf of Lessee were duly authorized to
do so. All such corporate or partnership resolutions, certificates or agreements
shall be certified as being duly adopted and/or in full force and effect,
without amendment, by an appropriate officer or partner of Lessee.
27. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon Lessee's
execution of the Lease and thereafter maintain with Lessor the sum of
$153,063.75 which shall be held by Lessor, with interest to Lessee (to be
calculated at bank rate for such term), as security for the full and faithful
performance by Lessee of Lessee's obligations pursuant to this Lease. If Lessee
fails to pay any amount which Lessee is obligated to pay pursuant to this Lease,
Lessor may, at its option (but Lessor shall not be obligated to), apply any
portion of such security fund to the amount owed by Lessee. Any such application
by Lessor shall not waive the default created by Lessee's failure to pay. If any
portion of the security deposit is so applied by Lessor, Lessee shall, within
ten (10) days after demand from Lessor, restore the security deposit held by
Lessor to its original amount. The security deposit plus interest, less amounts
properly charged against same, shall be refunded to Lessee within thirty (30)
days after Lessee has paid all amounts owed and performed all of its obligations
pursuant to this Lease.
28. SUBORDINATION. This Lease is subject and subordinate to all
security liens, mortgages, deeds of trust and related financing instruments
which may now or hereafter affect the Premises or the Project, and to all
renewals, modifications, consolidations, replacement, amendments and extensions
thereof, unless Lessor or any lender secured by a mortgage, deed of trust or
similar security instrument elects to make this Lease superior to same, which it
may do at its option. Lessee shall execute within fifteen (15) days after
request any commercially reasonable certificate, subordination agreement,
priority agreement or other form of instrument in confirmation of such
subordinate or superior status that Lessor may request. Lessee hereby
irrevocably appoints Lessor its attorney in fact to execute and deliver any such
instrument on behalf of Lessee, if Lessee fails or refuses to execute or deliver
same as required hereby. Lessee shall also execute within fifteen (15) days
after request an agreement with any lender pursuant to which Lessee agrees to
give such lender notice of any default by Lessor pursuant to this Lease, agrees
to accept performance by such lender of appropriate curative action, and agrees
to give such lender a minimum period of thirty (30) days after Lessee's notice
to such lender for the lender to cure Lessor's default. Lessee hereby
irrevocably appoints Lessor its attorney in fact to execute and deliver any such
instruments on behalf of Lessee, if Lessee fails or refuses to execute or
deliver same as required hereby. Notwithstanding anything to the contrary in the
Lease, the Lease shall not be subject to or subordinate to any ground or
underlying lease or to any lien, mortgage, deed of trust, or security interest
now or hereafter affecting the Premises, nor shall Lessee be required to execute
any documents subordinating this Lease, unless the ground lessor, lender, or
other holder of the interest to which this Lease shall be subordinated executes
a recognition and nondisturbance agreement in substantially the form attached as
Exhibit "F" ("SNDA"). Prior to April 1, 2001, Lessor shall cause all mortgagees,
lenders, ground lessors and other parties currently holding a mortgage lien
security interest affecting the Building to execute an SNDA.
29. ESTOPPEL STATEMENT. Within fifteen (15) days after request therefor
by Lessor, Lessee agrees to deliver a certificate prepared by Lessor to any
proposed mortgagee or purchaser of the Premises or to Lessor certifying (if such
is the case) that this Lease is in full force and effect, that there are no
defense or offsets thereto, or stating those claimed by Lessee, and such other
facts related to this Lease, the Premises or Lessee as Lessor may reasonably
request. If Lessee does not execute and return such certificate as required
above, Lessee hereby irrevocably appoints Lessor as its attorney in fact to
execute such certificate on behalf of Lessee.
30. NOTICES. Any notices required pursuant to this Lease shall be in
writing. Addresses to which notices shall be sent are as follows:
TO LESSEE: PMC -Sierra US, Inc.
000-0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx
XXX 0X0
Attn: Xx. Xxx Xxxxx, Manager of Real Estate
TO LESSOR: Transwestern - Xxxxxxxx I, LLC
c/o CB Xxxxxxx Xxxxx of Virginia, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxx
TO MANAGING AGENT: CB Xxxxxxx Xxxxx
000 00xx Xxxxxx, XX, Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxx Xxxxx
Either party may at any time designate by written notice to the other a change
of address for notices. All notices, demands and requests which are addressed as
provided above and are (i) deposited in the United States mail, registered or
certified, postage prepaid, return receipt requested, or (ii) accepted for
overnight delivery by a reputable overnight delivery provider, delivery charges
prepaid or with delivery not conditioned upon payment of charges, shall be
deemed to have been given for all purposes hereunder three (3) business days
after such notice, demand or request shall be deposited in the United States
mail or one (1) business day after deposit with the applicable overnight
delivery service.
31. PAST DUE RENTS. Lessee recognizes and acknowledges that if rent
payments are not received when due, Lessor will suffer damages and additional
expense thereby and Lessee therefore agrees that a late charge equal to five
percent (5%) of the late rent may be assessed by Lessor as additional rental if
Lessor has not received any monthly installment of annual rent or other rent or
additional rent due pursuant to this Lease within five (5) days after its due
date; provided, however, Lessee shall be entitled to one notice of late payment
and one three-day period to cure such late payment each calendar year before a
late charge accrues. If any check given in payment of rent is not honored when
due, Lessor may require that subsequent rent payments be made by certified or
cashier's check. All rent and other sums of whatever nature owed by Lessee to
Lessor under this Lease that remain unpaid for more than five (5) days after its
due date shall bear interest at the rate of twelve percent (12%) per annum (or,
if lower, the highest lawful rate) from the date due until paid.
32. BUILDING NAME. INTENTIONALLY DELETED.
33. RIGHT TO RELOCATE. INTENTIONALLY DELETED.
34. RENT TAXES. If applicable now or in the future, in the jurisdiction
where the Premises are located, Lessee shall pay as additional rent to Lessor,
concurrently with rent upon which such tax is based or within ten (10) days
after written request therefor, as directed by Lessor, any state or local sales
tax, gross receipts tax, business license tax or other tax, however denominated,
imposed directly upon this Lease, the rent paid pursuant to this Lease or the
operation of the Premises as rental property. Lessee shall not be obligated to
pay any federal, state or local income tax imposed on Lessor.
35. WAIVER OF TRIAL BY JURY. It is mutually agreed by and between
Lessor and Lessee that the respective parties hereto shall, and they hereby do,
waive trial by jury in any action, proceeding or counterclaim brought by either
of the parties hereto against the other on any matter whatsoever arising out of
or in any way connected with this Lease, the relationship of Lessor and Lessee,
Lessee's use of or occupancy of the Premises or any claim of injury or damage in
the premises and any emergency statutory or any other statutory remedy. If
Lessor commences any summary proceeding for nonpayment of rent or additional
rent, Lessee will not interpose any counterclaim of whatever nature or
description in any such proceeding (except for mandatory counterclaims).
36. TAXES ATTRIBUTABLE TO LESSEE'S IMPROVEMENTS. If an increase in real
estate taxes assessed on the Building is caused by Lessee's improvements or
fixtures in the Premises (other than the Tenant Improvements), Lessee shall pay
as additional rent and within ten (10) days after demand therefor from Lessor
all of such real estate taxes attributable to such improvements or fixtures.
37. DEFINITION OF LEASE YEAR. The first Lease year is the period
beginning on the Commencement Date and ending one (1) year after the last day of
the month preceding the month in which the Commencement Date occurs. The second
Lease year shall begin on the day after the end of the first Lease year, and
shall end one (1) year after the end of the first Lease year. The third and
subsequent Lease years shall begin and end on the appropriate anniversary dates
of the beginning and ending dates of the second Lease year.
38. SUCCESSOR AND ASSIGNS. This Lease shall bind and inure to the
benefits of the successors, assigns, heirs, executors, administrators and legal
representatives of the parties hereto. This provision shall not give Lessee by
implication any right to assign its rights or interest pursuant to this Lease.
The provisions of paragraph 13 above govern Lessee's right to assign and sublet.
39. RELATIONSHIP OF LESSOR AND LESSEE. It is expressly understood and
agreed that Lessor shall not be construed as or held to be a partner, joint
venturer or associate of Lessee, it being expressly understood and agreed that
the relationship between the parties hereto is and shall at all times remain
that of landlord and tenant.
40. LIMITATION OF LESSOR'S OBLIGATION. The obligations of Lessor
hereunder shall be binding only upon its interest in the Project, and not upon
any other assets of Lessor or any partner of Lessor personally. Lessee agrees to
look solely to the equity of Lessor in the Project for the satisfaction of any
remedies of Lessee or judgement obtained by Lessee as a result of a breach by
Lessor of this Lease. Such exculpation of liability shall be absolute and
without any exception whatsoever.
41. PERFORMANCE BY LESSOR AND LESSEE. If Lessee fails to perform any of
its obligations hereunder beyond applicable notice and cure periods, Lessor may,
at its option (but shall be under no obligation to do so), perform the
obligation of Lessee which Lessee has failed to perform. Any amounts advanced in
so performing obligations of Lessee shall bear interest at the rate of twelve
percent (12%) per annum (or, if lower, the highest lawful rate) from the date
expended until repaid, shall be due and payable on demand, and failure to pay on
demand shall constitute an independent event of default hereunder. Payment or
performance by Lessor of the obligations of Lessee shall not waive or cure any
breach occasioned by Lessee's failure or refusal to pay or perform same.
42. WAIVER. Delay in asserting or prosecuting any right, claim or cause
of action accruing hereunder is not and shall not be deemed to be a waiver of,
and shall not prejudice the same, or any other right, claim or cause of action
accruing hereunder at any time. Waiver of any right, claim or cause of action at
any time shall not prejudice any other right, claim or cause of action which
Lessor may have or which shall thereafter accrue, and shall not waive Lessor's
right to assert any other right, claim or course of action. Acceptance by Lessor
of rent from Lessee during the existence of any default shall not constitute a
waiver of such default, or a waiver of the right of Lessor to insist upon
Lessee's strict compliance with the terms of this Lease.
43. PARAGRAPH HEADINGS. The paragraph headings of this Lease are used
for convenience only, and are in no way to be construed as a part of this Lease
or as a limitation on the scope of the particular provision to which they refer.
44. INVALIDITY. If any provision of this Lease shall be held to be
invalid, whether generally or as to specific facts or circumstances, the same
shall not affect in any respect whatsoever the validity of the remainder of this
Lease, which shall continue in full force and effect. Any provision held invalid
as to any particular facts and circumstances shall remain in full force and
effect as to all other facts and circumstances.
45. GOVERNING LAW. This Lease and the rights of the parties hereunder
shall be interpreted in accordance with the laws of the state in which the
Project is located.
46. BROKER'S FEE. Upon execution of this Lease by both parties, Lessor
shall pay to Transwestern Xxxxx Xxxxxxx and Xxxxxxxxx & Xxxx, Colliers
International, licensed real estate broker(s), a fee as set forth in a separate
agreement between Lessor and said broker(s).
47. AGENCY AND OWNERSHIP DISCLOSURE.
(a) Lessor and Lessee each acknowledge that, in connection with
this Lease:
Initial One
X Transwestern Xxxxx Xxxxxxx is representing
the Lessor exclusively and/or
X Xxxxxxxxx & Xxxx, Colliers International
is representing the Lessee exclusively.
(b) Initial one or both, if applicable:
----------------------------------
_____ One or more principals of Lessor are
licensed Maryland real estate brokers or
salespersons.
and/or
_____ Agent and/or one or more brokers or
salespersons of Agent has an ownership
interest in Lessor.
(c) Lessor further agrees that if Lessee exercises any option, which is
granted to Lessee under this Lease, or any subsequently granted option which is
substantially similar to an option granted to Lessee under this Lease, or if
Lessee acquires any rights to the Premises or other premises described in this
Lease which are substantially similar to what Lessee would have acquired had an
option herein granted to Lessee been exercised, or if Lessee remains in
possession of the Premises after the expiration of the term of this Lease after
having failed to exercise an option, or if said broker(s) are the procuring
cause of any other lease or sale entered into between the parties pertaining to
the Premises and/or adjacent property in which Lessor has an interest, then as
to any of said transactions, Lessor shall pay said broker(s) a fee in accordance
with the schedule of said broker(s) in effect at the time of execution of this
Lease.
(d) Lessor agrees to pay said fee not only on behalf of Lessor but also
on behalf of any person, corporation, association, or other entity having an
ownership interest in said real property or any part thereof, when such fee is
due hereunder. Any transferee of Lessor's interests in this Lease, whether such
transfer is by agreement or by operation of law, shall be deemed to have assumed
Lessor's obligation under this paragraph 47. Said broker shall be a third party
beneficiary of the provisions of this paragraph 47.
48. ENTIRE AGREEMENT. This Lease together with the attached Exhibits
and Riders referred to herein and specified below, contains the entire agreement
of the parties related to this transaction, supersedes all prior negotiations
and agreements and represents their final and complete understanding. This Lease
may not be modified orally, through course of performance or in any manner other
than by agreement in writing, signed by all of the parties hereto.
49. EXHIBITS AND ADDITIONAL PROVISIONS. The Exhibits designated as A,
B, C, D, E, F, G & H, and Rider(s) designated as No. 1 which are attached hereto
and are a part of this Lease, and are incorporated herein as if set forth in
full.
50. NO LIEN. Lessor shall have no security interest or lien on any item
of Lessee's equipment, furniture, fixtures and other personal property. Lessor
waives any landlord's lien that may arise at law.
51. REASONABLE EXPENDITURES. Any authorized expenditure by Lessor or
Lessee, permitted or required under the terms of this Lease, for which such
party making or incurring such expenditure is entitled to demand and does demand
reimbursement from the other party, shall be: (i) limited to the actual amount
so expended, or the fair market value of the goods and services obtained; (ii)
shall be reasonably incurred; and, (iii) shall be substantiated by documentary
evidence available for inspection and review by the other party or its
representative during normal business hours.
52. RIGHT TO CURE. In the event Lessor fails to perform any of its
obligations herein or under the Lease and (except in case of emergency posing an
immediate threat to persons or property, in which case no prior notice shall be
required) fails to cure such default within thirty (30) days after written
notice from Lessee specifying the nature of such default, where such default
could reasonably be cured within said thirty (30) day period, or fails to
commence such cure within said thirty (30) day period and thereafter
continuously with due diligence prosecute such cure to completion, where such
default could not reasonably be cured within said thirty (30) day period, then
in that event Lessee shall have the right, but not the obligation, to cure such
default and to demand reimbursement by Lessor of the actual costs incurred by
Lessee for such cure, with interest thereon at the rate of ten percent (10%) per
annum or the highest rate allowed by law, whichever is less, from the date of
the expenditure until repaid.
53. APPROVALS. Whenever the Lease requires an approval, consent,
designation, determination, selection or judgment by either Lessor or Lessee,
such approval, consent, designation, determination, selection or judgment and
any conditions imposed thereby shall be reasonable and shall not be unreasonably
withheld or delayed.
IN WITNESS WHEREOF, this Lease has been duly executed by the parties
hereto as of the date and year first above written.
LESSOR: TRANSWESTERN - XXXXXXXX I, LLC,
a Delaware limited liability
company
By: Xxxxxxxx Development Group, Inc.
Its: Manager
By: ___________________________________
Xxxxxx X. Xxxxxxxx
Its: President
LESSEE: PMC - Sierra US, Inc.,
a Delaware corporation
By: ___________________________________
Name: ___________________________________
Its: ___________________________________
RIDER NO. 1
DATED JANUARY 9, 2001
BY AND BETWEEN
TRANSWESTERN - XXXXXXXX I, LLC ("LESSOR")
AND
PMC - Sierra US, Inc. ("LESSEE")
The following paragraphs are made a part of this Lease, and in the
event of any inconsistency between the following paragraphs and any other terms
of this Lease, the following paragraphs shall control:
1. Overtime HVAC: If heating and air conditioning is required after normal
business hours, Lessee agrees to reimburse Lessor at a rate of $65.00
per hour per floor for the overtime usage. Lessee shall reimburse
Lessor within thirty (30) days after request. In the event of a rate
increase through the utility company, such rate per hour shall be
subject to increase. Lessor shall provide thirty (30) days notice of
such increase.
2. Rent Abatement: Provided this Lease is in full force and effect and no
default by Lessee has occurred hereunder beyond applicable notice and
cure periods, the rent for Suite 300 consisting of 18,844 rentable
square feet shall be abated until December 1, 2001 (The "Abatement
Period"). All other provisions of the Lease shall be in effect during
the Abatement Period. The entire rent otherwise due and payable for the
Abatement Period shall become immediately due and payable upon the
occurrence of a default under the Lease.
3. Escalation: The rent, as described in the Lease, shall increase two and
one-half percent (2.5%) per annum on the anniversary of the
Commencement Date if such date is the first day of the month. If the
term of this Lease shall commence on a day other than the first day of
a calendar month, the increase shall occur on the first day of the
month immediately following the month of the Commencement Date
anniversaries.
4. Tenant Improvements: Subject to increase after measurement, Lessor
shall provide Lessee with and allowance of Two Million One Hundred
Sixty Thousand Nine Hundred and No/100 Dollars ($2,160,900.00) ($30.00
per rentable square foot) ("Improvement Allowance") for Tenant
Improvements to be constructed in accordance with the Work Letter
Agreement (Exhibit B) attached hereto and incorporated herein by
reference. All costs in excess of the Improvement Allowance shall be at
Lessee's cost. Notwithstanding the foregoing, Lessee shall have the
right to use up to Three Hundred Sixty Thousand One Hundred Fifty and
No/100 Dollars ($360,150.00) ($5.00 per rentable square foot) of the
Improvement Allowance to defray the cost of furniture, fixtures and
equipment, teledata installation, and moving costs.
5. Renewal Option: Provided this Lease is in full force and effect and no
default by Lessee has occurred hereunder, Lessee shall have the right
to renew this Lease for one (1) five (5) year term upon providing
Lessor with written notice one hundred eighty (180) days prior to the
current expiration. The renewal term shall be subject to the terms and
conditions set forth in this Lease, and the rent shall be at ninety
five percent (95%) of the fair market value at the time of the renewal
for similarly improved space in similar properties in the surrounding
area, taking into account market concessions. Lessee's rights as to
this option are personal to the original Lessee executing the Lease and
may not be exercised or be assigned, voluntarily, by or to any person
or entity other than the original Lessee (and any Permitted Assignee).
Such fair market value shall be as determined by the agreement of the
parties, or, if the parties cannot agree within thirty (30) days after
Lessee has exercised this right to renew, then the fair market value
shall be determined by three appraisers who are certified appraisers
with at least five (5) years experience appraising office space in the
vicinity of the Premises, selected and governed by the Rules of the
American Arbitration Association. The cost of the appraisers shall be
shared equally by Lessor and Lessee. The value of improvements to the
Premises paid for by Lessee shall not be considered in determining Fair
Market Rent. All other terms and conditions contained in the Lease, as
the same may be amended from time to time by the parties in accordance
with the provisions of the Lease, shall remain in full force and effect
and shall apply during the Option term. If the Fair Market Rent is
determined by appraisal and if Lessee does not, in Lessee's sole
discretion, approve the rental amount established thereby, then Lessee
may rescind its exercise of the renewal option by giving Lessor written
notice of such election to rescind within ten (10) days after such
monthly rent amount has been established. If Lessee rescinds its
exercise of the renewal option, then (i) the Lease shall terminate on
the date the Lease term would otherwise have expired absent Lessee's
exercise of the renewal option and (ii) Lessee shall pay all costs and
expenses of the appraisal.
6. Termination Option: Lessee shall have a one-time option to terminate
this Lease effective at the end of the seventy fifth (75th) month of
the Lease term provided that (i) the Lease is in full force and effect
and no default by Lessee has occurred hereunder beyond applicable
notice and cure periods, (ii) Lessee has provided Lessor with twelve
(12) months prior written notice (the "Termination Notice"), and (iii)
a check in the amount of One Million Nine Hundred Twenty One Thousand
Nine Hundred Ninety Four and 43/100 Dollars ($1,921,994.43) (the
"Termination Penalty") for unamortized Tenant Improvements and leasing
commissions calculated at ten percent (10%) interest plus two (2)
months rent accompanies the Termination Notice. Failure to pay the
Termination Penalty to Lessor at the time the Termination Notice is
delivered to Lessor shall make such Termination Notice null and void
and of no force and effect whatsoever, and this Lease shall continue in
full force and effect as if such Termination Notice had not been given.
In the event that Lessee exercises its option as aforesaid, then, in
such event, such termination shall be treated as if the term of this
Lease had expired and all provisions contained in this Lease pertaining
to the rights and obligations of Lessee and Lessor as to and as of the
expiration of the term of this Lease shall apply in a like-manner to
such early termination. In the event Lessee does not notify Lessor of
its intent to terminate twelve (12) months prior to the end of the
seventy fifth (75th) month of the Lease term, this Lease shall
continue, in full force and effect, throughout the entire Lease term.
7. Right of First Refusal: Provided this Lease is in full force and effect
and no default by Lessee has occurred hereunder, Lessee shall have the
right of first refusal to lease space in the Building in accordance
with the provisions set forth below, as such Space (as hereinafter
defined) becomes available to lease to third parties. If Lessor
receives a bona fide offer (the "Offer") from a third party to lease
any portion of the Building (each such portion a "Space"), and the
Offer is acceptable to Lessor, Lessor, prior to acceptance of the
Offer, shall provide Lessee with the terms of the Offer in writing.
Lessee must deliver written notice to Lessor within five (5) business
days after receipt of such written terms of the Offer whether Lessee
intends to lease the Space. Lessee's failure to notify Lessor within
such time shall be deemed a waiver of Lessee's right to lease such
Space. If Lessee timely notifies Lessor that it desires to lease the
Space covered by the Offer, Lessor shall thereupon lease the Space to
Lessee (and Lessee shall accept such Space) upon the terms and
conditions as contained in this Lease except for any terms specified in
the Offer which differ from the terms of this Lease, in which case the
terms of the Offer shall govern. If Lessee exercises its right to lease
the Space, the parties shall promptly thereafter execute an amendment
to the Lease to include the Space and to document the lease terms
thereof. If Lessee fails to accept the Offer, Lessor may at any time
thereafter lease such Space to any party upon any terms Lessor deems
appropriate. Lessee's rights described in this provision are personal
to the original Lessee executing the Lease and may not be exercised or
be assigned voluntarily or involuntarily, by or to any person or entity
other than the original Lessee (and any Permitted Assignee).
8. Signage: Notwithstanding anything contained herein to the contrary,
provided Lessee leases at least 67,000 rentable square feet in the
Building, Lessee shall have the exclusive right to affix, at Lessee's
sole cost and expense, a sign to the exterior of the Building
displaying Lessee's trade name and logo; provided, however, that (a)
the installation and maintenance of such sign shall be subject to
Lessee providing to Lessor evidence satisfactory to Lessor that such
sign complies with the requirements of all governmental and community
authorities having jurisdiction over the Building and that Lessee has
obtained all necessary government, community and other permits and
approvals; (b) the size, materials, color, design, content,
illumination, composition, mobility, location and all other aspects of
such sign shall be acceptable to Lessor, in its reasonable discretion;
(c) Lessee shall maintain and repair such sign during the term of the
Lease, and all costs related to such sign, including provision,
installation, maintenance, repair, utilities, removal (and the costs of
any damage to the Building caused by removal), and the costs of
obtaining all necessary permits and approvals, shall be borne by
Lessee; and (d) Lessee shall remove such sign, at Lessee's expense,
upon the expiration or earlier termination of the Lease Term. Lessee's
rights as to signage are personal to the original Lessee executing the
Lease and may not be exercised or be assigned, voluntarily, by or to
any person or entity other than the original Lessee.
9. Other Signage: Lessor shall provide Building standard suite and
Building lobby directory signage at Lessor's cost. Lessee shall also be
entitled to its proportionate share of space on the monument signage
for the Building and/or the Project, subject to local codes.
10. Satellite Dish: Lessor hereby consents to the installation by Lessee,
at Lessee's sole cost and expense, of one standard dish-type
communications antenna to be located on the roof of the Building,
provided that prior to any such installation, the specifications and
location of such antenna shall be reviewed and approved by Lessor.
Lessee shall be responsible to assure that the installation,
maintenance and removal and operation of such equipment (i) complies
with all laws, rules and regulations applicable thereto and (ii) will
not interfere with or adversely affect the operation of any other
tenant, including any electrical or mechanical equipment thereof,
located within the Building, and Lessee agrees to repair, and indemnify
Lessor against, any damage or injury arising out of such installation,
operation, maintenance and removal, including without limitation, any
damage to the roof of the Building. In addition, Lessee shall furnish
Lessor with a certificate of insurance specifying that the antenna is
covered under Lessee's insurance policy and that the Lessor and its
managing agent are named as additional insured. Other than the
foregoing, there shall be no additional Lease costs associated with
such rooftop rights. All other provisions of the Lease shall apply to
the Satellite dish.
11. Guarantee of Lease: This Lease is guaranteed by PMC-Sierra, Inc., a
Delaware corporation ("Guarantor"), as evidenced by that certain
Guarantee of Lease dated January 9, 2001, by and between Lessor and
Guarantor, a sample of which Guarantee of Lease is shown as Exhibit H
attached hereto and incorporated herein by reference.
EXHIBIT A
FLOOR PLAN
See Attached
EXHIBIT B
WORK LETTER AGREEMENT
THIS AGREEMENT entered into as of January 9, 2001, defines the scope of
work to be provided by Transwestern - Xxxxxxxx I, LLC, a Delaware limited
liability company ("Lessor") in the Premises in Crown Point Corporate Center
leased by PMC - Sierra US, Inc., a Delaware corporation ("Lessee") under a Lease
dated January 9, 2001.
It is the intent of this Agreement that Lessee shall be permitted
freedom in the interior design and layout of its space, consistent with
applicable building codes and with sound architectural and construction
practice, provided that no interference is caused to the operation of the
building's mechanical heating, cooling or electrical systems or other building
operations or functions, and no increase in maintenance or utility charges will
be incurred by Lessor. Any additional cost of design, operation or maintenance
which results from Lessee's deviation from Building Standard quantities or
specifications shall be charged to the Lessee.
Lessee shall construct the initial Tenant Improvements in the Premises
(the "Tenant Improvements"). Lessee may select its own general contractor and
subcontractors at its discretion. Furthermore, Lessee's general contractor and
subcontractors will adhere to the rules and regulations for construction and
access to the Premises to be mutually agreed upon by Lessor and Lessee. Lessor,
upon presentation of invoices by Lessee on a monthly basis, shall reimburse
Lessee for the cost of Lessee's design and construction of the initial Tenant
Improvements up to the Improvement Allowance pursuant to Section 4 of the Rider
No. 1.
Lessor shall provide, at its sole cost and expense, the following
Building services during the construction of the Tenant Improvements: electrical
service. Lessor may charge a construction supervision fee in the amount of two
and one-half percent (2 1/2%) of the Improvement Allowance.
LESSOR: TRANSWESTERN - XXXXXXXX I, LLC,
a Delaware limited liability company
By: Xxxxxxxx Development Group, Inc.
Its: Manager
By: _______________________________
Xxxxxx X. Xxxxxxxx
Its: President
LESSEE: PMC - Sierra US, Inc.,
a Delaware corporation
By: _______________________________
Name: _______________________________
Its: _______________________________
EXHIBIT C
SAMPLE FORM OF NOTICE OF LEASE TERM DATES
To: _______________________________________ Date: ____________________
_______________________________________
RE: Office Lease dated____________,20______,between_______________ ,Lessor, and
__________________________,Lessee, concerning Suite____________,(the "Premises")
located at ___________________________________.
Dear :
In accordance with the above referenced Lease, we wish to advise and/or confirm
as follows:
1. That the Premises have been accepted by Lessee as being substantially
complete in accordance with the Lease, and to its current actual
knowledge, there is no deficiency in construction.
2. That Lessee has accepted and is in possession of the Premises, and
acknowledges that under the provisions of the Lease, the Term of the
Lease is for ______ years, with ______options to renew for ______years
each, and commenced upon the Commencement Date of _________, 20_____
and is currently scheduled to expire on _________ , 20___ unless sooner
terminated pursuant to any provision of the Lease.
3. That in accordance with the Lease, rental payment has commenced (or
shall commence) on ______________________________.
4. If the Commencement Date of the Lease is other than the first day of
the month, the first billing will contain a pro rata adjustment. Each
billing thereafter, with the exception of the final billing, shall be
for the full amount of the monthly installment as provided for in the
Lease.
5. Rent is due and payable in advance on the first day of each and every
month during the Term of the Lease. Your rent checks should be made
payable to ______________________________________________________ at
________________________________.
6. The exact number of rentable square feet within the Premises is
__________________ square feet.
AGREED AND ACCEPTED
Lessee: _____________________________
By: _____________________________
Print Name: _____________________________
Its: _____________________________
EXHIBIT D
COMMON AREA
Common Areas:
(a) Common Areas Defined. In this Lease, "Common Areas" means all
areas, facilities and improvements provided, from time to time, in the Building
or the Project for the mutual convenience and use of Lessees or other occupants
of the Building, their respective agents, employees, contractors, customers and
invitees and shall include, if provided, but shall not be limited to, the
lobbies and hallways, the public restrooms, the parking areas, appurtenant
grounds and facilities, access roads, driveways, retaining walls, sidewalks,
walkways, landscaped areas, and exterior lighting facilities.
(b) Lessor's Control. Lessor shall, as between Lessor and Lessee, at
all times during the term of the Lease have the sole and exclusive control,
management and direction of the Common Areas, and may at any time and from time
to time during the term exclude and restrain any person from use or occupancy
thereof, excepting, however, Lessee and other Lessees of Lessor and bona fide
invitees of either who make use of said areas in accordance with the rules and
regulations established by Lessor from time to time with respect thereto. The
rights of Lessee in and to the Common Areas shall at all times be subject to the
rights of others to use the same in common with Lessee, and it shall be the duty
of Lessee to keep all of said areas free and clear of any obstructions created
or permitted by Lessee or resulting from Lessee's operation. Lessor may at any
time and from time to time close all or any portion of the Common Areas to make
repairs or changes or to such extent as may, in the reasonable opinion of
Lessor, be necessary to prevent a dedication thereof or the accrual of any
rights to any person or to the public therein, to close temporarily any or all
portions of the said areas to discourage non customer parking, and to do and
perform such other acts in and to said areas as, in the exercise of good
business judgment, Lessor shall determine to be advisable with a view to the
improvement of the convenience and use thereof by Lessees, their employees,
agents, and invitees. Lessor shall not exercise any of the foregoing rights to
the extent they unreasonably interfere with Lessee's use of the Premises. Lessor
shall use reasonable efforts to minimize disruption to Lessee's business
operations in exercising any of the foregoing rights.
(c) Changes and Additions to the Building, Project Additional
Construction. Lessor hereby reserves the right at any time to make alterations
or additions to the Building and/or the Project, as well as in or to the street
entrances, halls, passages, stairways and other common facilities thereof.
Lessee agrees that Lessor shall at all times have the right and privilege of
determining the nature and extent of the Common Areas and the Project, and of
making such changes, rearrangements, additions or reductions therein and thereto
from time to time which in its opinion are deemed to be desirable and for the
best interest of all persons using the Common Areas or which are as a result of
any federal, state or local environmental protection or other law, rule,
regulation, guidelines or order. Lessor shall not exercise any of the foregoing
rights to the extent they unreasonably interfere with Lessee's use of the
Premises. Lessor shall use reasonable efforts to minimize disruption to Lessee's
business operations in exercising any of the foregoing rights.
EXHIBIT E
RULES AND REGULATIONS
1. The entrances, lobby and other Common Areas shall be under the
exclusive control of Lessor and shall not be obstructed or used by
Lessee for any purpose other than their intended purposes.
2. Lessee shall not bring into the Premises or operate therein any engine,
boiler, dynamo or machinery of any kind, or carry on any mechanical
operations in the Premises, or place any explosive therein, or use any
kerosene, oils or burning fluids therein, without first obtaining the
written consent of Lessor.
3. If Lessee desires a safe for depositing valuables or securities, Lessor
shall have the right to prescribe its weight, size and proper position.
Nothing whatsoever shall be brought into the Building by Lessee, its
agents, employees, or visitors which has a weight of more than 70
pounds per square foot, unless Lessor approves same and its proper
position.
4. No nails are to be driven, the Premises are not to be defaced in any
way, no boring or cutting for wires or other purposes is to be done,
and no change in electric fixtures or other appurtenances of the
Premises is to be made, without prior written consent of Lessor.
5. If Lessee desires telephonic or telegraphic connections, Lessor will
direct the electricians as to where and how the wires are to be
introduced, and without such written directions no boring for wires
will be permitted.
6. The Premises shall not be used for the purpose of lodging or sleeping
rooms, nor in any way to damage the reputation of the Building; and
Lessee shall not disturb or permit the disturbance of other tenants of
the Building by the use of musical instruments or other noises, nor by
any interface whatsoever. Nothing shall be placed or permitted upon the
outside window xxxxx.
7. No person or persons, other than employees of the Building shall be
employed by Lessee for the purpose of cleaning or taking care of the
Premises without the written consent of Lessor. Any person or persons
so employed by Lessee (with the written consent of Lessor) shall be
subject to, and under the control and direction of Lessor in the use of
the Building and its facilities.
8. Lessor shall have the right to exclude or eject from the Building
animals of every kind, bicycles, and all canvassers and other persons
who conduct themselves in such a manner as to be, in the judgment of
Lessor, an annoyance to the tenants or a detriment to the Building.
9. Two keys to the front door of the Premises (not including security
system keys) will be provided at no cost. A reasonable number of
additional keys will be provided upon payment of fees therefor. No
locks shall be placed upon any doors of the Premises without first
obtaining the written consent of Lessor and furnishing Lessor with keys
to same. Lessee will not permit any duplicate keys to be made (all
necessary keys to be furnished by Lessor). Upon termination of this
Lease, Lessee shall surrender to Lessor all keys to an entry door of
the Building. Lessee shall pay all costs incurred by Lessor as a result
of such loss, including but not limited to, the cost of re-keying the
Building entry door(s) and providing new keys to existing tenants of
the Building.
10. All persons entering or leaving the Building may be required to
identify themselves to watchman by registration or otherwise, and to
establish their right to enter or leave the Building. (If Lessee uses
the Premises during business days after 7:00 p.m. or prior to 8:00
a.m., or on Saturdays, Sundays or holidays, it shall be responsible for
locking the Building after entry or exit.)
11. The toilet rooms, water-closets and other water apparatus shall not be
used for any purpose other than those for which they are intended, and
no sweepings, rubbish, rags or other injurious substances shall be
placed therein. The cost of repair of any damage resulting from misuse
or abuse by Lessee, its employees or guests shall be borne by Lessee.
12. Lessee may use the Building on nights, weekends, or holidays, without
Lessor's consent; provided, however, that if Lessee desires to operate
the heating or air conditioning for the Premises on nights, weekends or
holidays, Lessee shall pay Lessor for such after hours usage at the
rates and upon the terms set forth in the Lease.
13. Lessor will post on the directory of the Building one name, to be
designated by Lessee at no charge. All additional names which Lessee
shall desire posted upon said directory must be approved by Lessor, and
if so approved a charge may be made for such additional listings.
14. If there are any glass entry doors to the Premises, Lessee must obtain
Lessor's prior written approval, which Lessor may give or withhold in
its sole discretion, of all furniture, interior finishes and other
objects visible through such glass door(s).
15. Lessee must obtain prior written approval of any and all signage within
the Common Area and or Building Premises.
EXHIBIT F
SUBORDINATION, NONDISTURBANCE AND
ATTORNMENT AGREEMENT
THIS AGREEMENT made this ___ day of _________________, 2000, between
GUARANTY FEDERAL BANK, F.S.B., a federal savings bank (hereinafter called
"Lender") and PMC - Sierra US, Inc., a Delaware corporation (hereinafter called
"Lessee") and TRANSWESTERN-XXXXXXXX I, LLC, a Delaware limited liability company
(hereinafter called "Lessor").
W I T N E S S E T H T H A T:
WHEREAS, Lender is the owner and holder of a Deed of Trust, Mortgage
and Security Agreement (hereinafter called the "Security Instrument"), dated
February 11, 1999, recorded in Liber 16837, at folio 648 of the Land Records of
in Xxxxxxxxxx County, Maryland, covering the real property described in Exhibit
A and the buildings and improvements thereon (hereinafter collectively called
the "Mortgaged Premises") securing the payment of a promissory note in the
stated principal amount of $12,200,000.00 payable to the order of Lender;
WHEREAS, Lessee is the lessee under Lease Agreement (hereinafter called
the "Lease") dated January 9, 2001, by and between Lessor and Lessee, covering
certain property (hereinafter called the "Demised Premises") consisting of a
part of the Mortgaged Premises; and
WHEREAS, Lessee, Lessor and Lender desire to confirm their
understanding with respect to the Lease and the Security Instrument;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, Lender, Lessor and Lessee hereby agree and covenant as
follows:
1. Subordination. The Lease now is, and shall at all times and for all
purposes continue to be, subject and subordinate, in each and every respect, to
the Security Instrument, it being understood and agreed that the foregoing
subordination shall apply to any and all increases, renewals, modifications,
extensions, substitutions, replacements and/or consolidations of the Security
Instrument, provided that any and all such increases, renewals, modifications,
extensions, substitutions, replacements and/or consolidations shall nevertheless
be subject to the terms of this Agreement.
2. Non-Disturbance. So long as (i) Lessee is not in default (beyond any
period given Lessee to cure such default) in the payment of rent or additional
rent or in the performance of any of the other terms, covenants or conditions of
the Lease on Lessee's part to be performed, (ii) the Lease is in full force and
effect, and (iii) Lessee attorns to Lender or a purchaser of the Mortgaged
Premises as provided in Paragraph 3, then (a) Lessee's possession, occupancy,
use and quiet enjoyment of the Demised Premises under the Lease, or any
extensions or renewals thereof or acquisition of additional space which may be
effected in accordance with any option therefor in the Lease, shall not be
terminated, disturbed, diminished or interfered with by Lender in the exercise
of any of its rights under the Security Instrument, and (b) Lender will not join
Lessee as a party defendant in any action or proceeding for the purpose of
terminating Lessee's interest and estate under the Lease because of any default
under the Security Instrument.
3. Attornment. If Lender shall become the owner of the Mortgaged
Premises or the Mortgaged Premises shall be sold by reason of non-judicial or
judicial foreclosure or other proceedings brought to enforce the Security
Instrument or the Mortgaged Premises shall be conveyed by deed in lieu of
foreclosure, the Lease shall continue in full force and effect as a direct Lease
between Lender or other purchaser of the Mortgaged Premises, who shall succeed
to the rights and duties of Lessor, and Lessee. In such event, Lessee shall
attorn to Lender or such purchaser, as the case may be, upon any such occurrence
and shall recognize Lender or such purchaser, as the case may be, as the Lessor
under the Lease. Such attornment shall be effective and self-operative without
the execution of any further instrument on the part of any of the parties
hereto. Lessee agrees, however, to execute and deliver at any time and from time
to time, upon the request of Lessor or of any holder(s) of any of the
indebtedness or other obligations secured by the Security Instrument or any such
purchaser, any instrument or certificate which, in the sole reasonable judgment
of the requesting party, is necessary or appropriate, in connection with any
such foreclosure or deed in lieu of foreclosure or otherwise, to evidence such
attornment, which instrument or certificate shall be in form and content
reasonably acceptable to Lessee. Lessee hereby waives the provisions of any
statute or rule of law, now or hereafter in effect, which may give or purport to
give Lessee any right or election to terminate or otherwise adversely affect the
Lease and the obligations of Lessee thereunder as a result of any such
foreclosure or deed in lieu of foreclosure.
4. Obligations and Remedies. If Lender shall become the owner of the
Mortgaged Premises or the Mortgaged Premises shall be sold by reason of
non-judicial or judicial foreclosure or other proceedings brought to enforce the
Security Instrument or the Mortgaged Premises shall be conveyed by deed in lieu
of foreclosure, Lender or other purchaser of the Mortgaged Premises, as the case
may be, shall have the same remedies by entry, action or otherwise in the event
of any default by Lessee (beyond any period given Lessee to cure such default)
in the payment of rent or additional rent or in the performance of any of the
other terms, covenants and conditions of the Lease on Lessee's part to be
performed that Lessor had or would have had if Lender or such purchaser had not
succeeded to the interest of Lessor. Upon attornment by Lessee as provided
herein, Lender or such purchaser shall be bound to Lessee under all the terms,
covenants and conditions of the Lease and Lessee shall have the same remedies
against Lender or such purchaser for the breach of an agreement contained in the
Lease that Lessee might have had under the Lease against Lessor if Lender or
such purchaser had not succeeded to the interest of Lessor; provided, however,
that Lender or such purchaser shall not be liable or bound to Lessee:
(a) for or by any rent or additional rent which Lessee might
have paid for more than the current month to any prior lessor
(including Lessor); or
(b) by any amendment or modification of the Lease made without
Lender's consent that (i) results in a reduction of rent or other sums
due and payable pursuant to the Lease (ii) modifies any operating
covenant of Lessee in the Lease, (iii) reduces the term of the Lease,
(iv) terminates the Lease, (v) modifies the terms of the Lease
regarding surrendering possession of the Demised Premises, (vi)
provides for payment of rent more than one month in advance, (vii)
modifies the permitted uses under the Lease or (viii) modifies the
provisions regarding Lessee's obligation to comply with all laws
(including environmental laws) or (ix) materially increases Lessor's
obligations under the Lease; or
(c) for any security deposit, rental deposit or similar
deposit given by Lessee to a prior lessor (including Lessor) unless
such deposit is actually paid over to Lender or such purchaser by the
prior lessor; or
(d) for the construction of any improvements required of
Lessor under the Lease in the event Lender or such purchaser acquires
title to the Mortgaged Premises prior to full completion and acceptance
by Lessee of improvements required under the Lease; provided, however,
such lack of liability on the part of Lender or such purchaser pursuant
to this subparagraph shall not affect Lessee's rights of self-help and
offset or termination described in the Lease in the event of such
failure to complete such improvements as long as Lessee has provided
all applicable notices and cure periods as required under the Lease and
this Agreement; or
(e) for the payment of any leasing commissions or other
expenses for which any prior lessor (including Lessor) incurred the
obligation to pay; or
(f) by any provision of the Lease restricting use of other
properties owned by Lender, as lessor; or
(g) by any notice given by Lessee to a prior lessor (including
Lessor) unless a copy thereof was also then given to Lender.
The person or entity to whom Lessee attorns shall be liable to Lessee
under the Lease only for matters arising during such person's or entity's period
of ownership.
5. No Abridgment. Nothing herein contained is intended, nor shall it be
construed, to abridge or adversely affect any right or remedy of Lessor under
the Lease in the event of any default by Lessee (beyond any period given Lessee
to cure such default) in the payment of rent or additional rent or in the
performance of any of the other terms, covenants or conditions of the Lease on
Lessee's part to be performed.
6. Notices of Default to Lender. Lessee agrees to give Lender a copy
of any default notice sent by Lessee under the Lease to Lessor.
7. Representations by Lessee. Lessee represents and warrants to Lender
that Lessee has validly executed the Lease; the Lease is valid, binding and
enforceable and is in full force and effect in accordance with its terms; the
Lease has not been amended except as stated herein; no rent under the Lease has
been paid more than thirty (30) days in advance of its due date except for the
first months' rent; to Lessee's current actual knowledge, there are no defaults
existing under the Lease; and Lessee, as of this date, has no charge, lien,
counterclaim or claim of offset under the Lease, or otherwise, against the rents
or other charges due or to become due under the Lease.
8. Rent Payment. If Lender shall become the owner of the Mortgaged
Premises or the Mortgaged Premises shall be sold by reason of non-judicial or
judicial foreclosure or other proceedings brought to enforce the Security
Instrument or the Mortgaged Premises shall be conveyed by deed in lieu of
foreclosure, Lessee agrees to pay all rents directly to Lender or other
purchaser of the Mortgaged Premises, as the case may be, in accordance with the
Lease immediately upon notice of Lender or such purchaser, as the case may be,
succeeding to Lessor's interest under the Lease. Lessee further agrees to pay
all rents directly to Lender immediately upon notice that Lender is exercising
its rights to such rents under the Security Instrument or any other loan
documents (including but not limited to any Assignment of Leases and Rents)
following a default by Lessor or other applicable party. Lessee shall be under
no obligation to ascertain whether a default by Lessor has occurred under the
Security Instrument or any other loan documents. Lessor waives any right, claim
or demand it may now or hereafter have against Lessee by reason of such direct
payment to Lender and agrees that such direct payment to Lender shall discharge
all obligations of Lessee to make such payment to Lessor.
9. Notice of Security Instrument. To the extent that the Lease shall
entitle Lessee to notice of any deed of trust or security agreement, this
Agreement shall constitute such notice to the Lessee with respect to the
Security Instrument and to any and all other deeds of trust and security
agreements which may hereafter be subject to the terms of this Agreement.
10. Lessor Defaults. Lessee agrees with Lender that effective as of the
date of this Agreement: (i) Lessee shall not take any steps to terminate the
Lease for any default by Lessor or any succeeding owner of the Mortgaged
Premises until after giving Lender written notice of such default, stating the
nature of the default and giving Lender thirty (30) days from receipt of such
notice to effect cure of the same, or if cure cannot be effected within said
thirty (30) days due to the nature of the default, Lender shall have a
reasonable time to cure provided that it commences cure within said thirty (30)
day period of time and diligently carries such cure to completion; and (ii)
notice to Lessor under the Lease (oral or written) shall not constitute notice
to Lender.
11. Liability of Lender. If Lender shall become the owner of the
Mortgaged Premises or the Mortgaged Premises shall be sold by reason of
foreclosure or other proceedings brought to enforce the Security Instrument or
the Mortgaged Premises shall be conveyed by deed in lieu of foreclosure, Lessee
agrees that, notwithstanding anything to the contrary contained in the Lease,
after such foreclosure sale or conveyance by deed in lieu of foreclosure, Lender
shall have no personal liability to Lessee under the Lease and Lessee shall look
solely to the estate and property of Lessor in the Mortgaged Premises, to the
net proceeds of sale thereof or the rentals received therefrom, for the
satisfaction of Lessee's remedies for the collection of a judgment or other
judicial process requiring the payment of money by Lessor in the event of any
default or breach by Lessor with respect to any of the terms, covenants, and
conditions of the Lease to be observed or performed by Lessor and any other
obligation of Lessor created by or under the Lease, and no other property or
assets of Lender shall be subject to levy, execution or other enforcement
procedures for the satisfaction of Lessee's remedies. Further, in the event of
any transfer by Lender of Lessor's interest in the Lease, Lender (and in the
case of any subsequent transfers or conveyances, the then assignor), including
each of its partners, officers, beneficiaries, co-lessees, shareholders or
principals (as the case may be) shall be automatically freed and released, from
and after the date of such transfer or conveyance, of all liability for the
performance of any covenants and agreements which accrue subsequent to the date
of such transfer of Lessor's interest.
12. Notice. Any notice or communication required or permitted hereunder
shall be given in writing, sent by (a) personal delivery, or (b) expedited
delivery service with proof of delivery, or (c) United States mail, postage
prepaid, registered or certified mail, or (d) telex, addressed as follows:
To Lender: Guaranty Federal Bank, F.S.B.
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Commercial Real Estate Division
With a copy to: Guaranty Federal Bank, F.S.B.
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
To Lessee: PMC - Sierra US, Inc.
000-0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxx
XXX 0X0
Attn: Xx. Xxx Xxxxx, Manager of Real Estate
or to such other address or to the attention of such other person as hereafter
shall be designated in writing by the applicable party sent in accordance
herewith. Any such notice or communication shall be deemed to have been given
and received either at the time of personal delivery or, in the case of delivery
service or mail, as of the date of first attempted delivery at the address and
in the manner provided herein, or in the case of telex, upon receipt.
13. No Amendment, Assignment or Subletting of Lease. INTENTIONALLY
DELETED.
14. No Amendment or Termination of Lease. INTENTIONALLY DELETED.
15. Modification. This Agreement may not be modified orally or in any
manner other than by an agreement in writing signed by the parties hereto or
their respective successors in interest.
16. Successor Lender. The term "Lender" as used throughout this
Agreement includes any successor or assign of Lender, any affiliate of Lender
acquiring the Mortgaged Property at foreclosure or by deed-in-lieu of
foreclosure, and any holder(s) of any interest in the indebtedness secured by
the Security Instrument.
17. Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the parties hereto, their successors and assigns, and any
purchaser or purchasers at foreclosure of the Mortgaged Premises, and their
respective successors and assigns.
18. Paragraph Headings. The paragraph headings contained in this
Agreement are for convenience only and shall in no way enlarge or limit the
scope or meaning of the various and several paragraphs hereof.
19. Gender and Number. Within this Agreement, words of any gender shall
be held and construed to include any other gender, and words in the singular
number shall be held and construed to include the plural and words in the plural
number shall be held and construed to include the singular, unless the context
otherwise requires.
20. Applicable Law. This Agreement and the rights and duties of the
parties hereunder shall be governed by all purposes by the law of the state
where the Mortgaged Premises is located and the law of the United States
applicable to transactions within such state.
21. Counterparts. This Agreement may be executed in multiple
counterparts and by the different parties hereto in separate counterparts, each
of which shall for all purposes be deemed to be an original and all of which
together shall constitute but one and the same instrument, with the same effect
as if all parties to this Agreement had signed the same signature page.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above written.
LENDER:
GUARANTY FEDERAL BANK, F.S.B,
a federal savings bank
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
LESSEE:
PMC - Sierra US, Inc.,
a Delaware corporation
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
LESSOR:
Transwestern - Xxxxxxxx I, LLC,
a Delaware limited liability company
By: Xxxxxxxx Development Group, Inc.,
a Virginia corporation, Its Manager
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
THE STATE OF TEXAS )
) ss.
COUNTY OF DALLAS )
On this the _______ day of ________________, 2000, the undersigned
officer, personally appeared ________________________, who acknowledged himself
to be the _______________________ of GUARANTY FEDERAL BANK, F.S.B., a federal
savings bank, and that he as such Officer being authorized so to do, executed
the foregoing instrument for the purposes therein contained, by signing the name
of the Corporation by himself as
-----------------.
---------------------------------------------
Notary Public of the State of Texas
Print Name of Notary: _______________________
My commission expires:
--------------------
THE COMMONWEALTH OF VIRGINIA )
) ss.
CITY OF VIRGINIA BEACH, VIRGINIA )
On this the _______ day of ________________, 2000, the undersigned
officer, personally appeared ________________________, who acknowledged himself
to be the _______________________ of Xxxxxxxx Development Group, Inc., a
Virginia corporation, in its capacity as Manager of TRANSWESTERN-XXXXXXXX I,
LLC, a Delaware limited liability company, and that he as such Officer being
authorized so to do, executed the foregoing instrument for the purposes therein
contained, by signing the name of the Corporation by himself as
-----------------.
---------------------------------------------
Notary Public of the Commonwealth of Virginia
Print Name of Notary: _______________________
My commission expires:
--------------------
-------------------------------- )
) ss.
-------------------------------- )
On this the _______ day of ________________, 2000, the undersigned
officer, personally appeared ________________________, who acknowledged himself
to be the _______________________ of PMC - Sierra US, Inc., a Delaware
corporation, and that he as such Officer being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by signing the name of
the Corporation by himself as _________________.
---------------------------------------------
Notary Public of the ________________________
Print Name of Notary: _______________________
My commission expires:
--------------------
EXHIBIT A
LEGAL DESCRIPTION
Lot numbered Six (6) in Block lettered "A" in the subdivision known as
"GAITHERSBURG NORTH RESEARCH AND DEVELOPMENT CENTER", as per plat thereof
recorded in Plat Book 189 at Plat 20777, among the Land Records of Xxxxxxxxxx
County, Maryland. (Said property being formerly known as "GAITHERSBURG NORTH
RESEARCH AND DEVELOPMENT CENTER," as per plat thereof recorded in Plat Book 155
at Plat 17604, among the Land Records of Xxxxxxxxxx County, Maryland.)
EXHIBIT G
Building Information
General Information
1.1 The Building is equipped to meet all applicable current codes,
regulations and land use by-laws including disability access.
1.2 The Building is suitable for multi-tenant accommodation.
1.3 The Building mechanical and electrical systems allow for the potential
of 24-hour year round operations.
1.4 A proximity card reader, a hands-free telephone, two double magnetic
electric locks, an auto exit device and prop sensors are at the North
vestibule outer doors. Double locks, auto exit device and prop sensors
are at the South vestibule outer doors. Prop sensors are on the two
exterior electrical room doors and exterior telephone room door as well
as the East passageway door and the loading dock door. The Building
fire panel and elevators are monitored.
1.5 All site work is completed, including landscaping, parking and site
utilities.
1.6 The main Building lobby has been completed including all surfaces are
finished, lighting, all doors, hardware and glazing are installed.
1.7 On current occupied floors, the Building exit corridors are completed
including all finishes, doors and hardware and lighting.
1.8 On current occupied floors, the elevator vestibules are completed
including all finishes, doors hardware and lighting.
1.9 The elevator cabs are complete including all finishes, doors, hardware
and lighting.
1.10 The Building stairs are complete including all finishes, doors and
lighting.
1.11 A satellite dish and/or antenna may be placed on the roof upon the
reasonable review and approval of the Lessor. Additional review and
approval is required from the architectural review committee of the
park and governmental agencies.
Architectural
2.1 The East-West bay size is 30' and will be a multiple of the ceiling
module. The South-West bay sizes are 35'-4" top bay, 26'-6" middle bay,
35'-2" bottom bay which are not multiples of the ceiling module.
2.2 The typical finished ceiling height is 8'-9".
2.3 The exterior wall below the window line is primed and ready for Lessee
finish. The demising walls will be slab to slab gypsum board, ready for
priming finish application.
2.4 The floors are level, finished and ready for future carpet and or vinyl
tile installation.
2.5 The ceilings and lighting are to be installed by Lessee.
2.6 There are 3 elevator cabs for 128,445 RSF, one elevator is currently
protected for assisting with Tenant Improvements.
2.7 The exterior windows are double glazed, tinted and equipped with new
horizontal venetian blinds.
2.8 The Building has completed washroom areas, including all finishes,
doors and hardware, lighting, plumbing, fixtures, life safety devices,
partitions, and accessories installed to meet code and disability
access.
Structural
3.1 The Building load is 80 lbs/sf of live load and 20/lbs/sf of partition
load.
Mechanical/Plumbing
4.1 The HVAC system is capable of providing building environmental
conditions meeting ASHRAE standards based on projections of 150
SF/person and 2W/sf heat gain from office equipment.
4.2 The HVAC system has the capacity to be modified by the Lessee for the
Lessee layout.
4.3 Ventilation system complies with 20 cfm/person of outdoor air. This is
based on ASHRAE 62-89, ventilation guidelines.
4.4 The HVAC system zones may be modified by the Lessee for the Lessee
layout.
4.5 There are two (2) wet stacks plus the stack for the core toilets.
4.6 The Building has a fully automatic sprinkler system that may be
modified by the Lessee for the Lessee layout.
Electrical
5.1 The Base Building has available per floor two (2) electrical closets
(two riser locations, riser `A' & `B', one riser per closet). Each
electrical closet has the capable of handling half of the floor
electrical loads. All electrical closets are install, connected and
running at the Base Building stage. Each closet has the following:
One panel `HH' (VAV box connections), single section, rated at 277/480
volt, 3 phase - 4 wire, 400 amp main lugs only.
One panel `H' (Lighting & equipment loads), single section, rated at
277/480 volt, 3 phase - 4 wire, 400 amp main lugs only.
One panel `L' (Receptacle & equipment loads), two sections, rated at
120/208 volt, 3 phase - 4 wire, 400 amp main circuit breaker. These
panels are fed from panel `H' via a step down transformer (Rated K-4).
5.2 There are no existing junction boxes with 120/208 volt power circuit
connections for the floor square footage. All new 120/208 volt power
per tenant must be brought from the existing `L' panels. These panels
are designed to be expanded (add sections) if additional circuits are
required. Typically all circuits are rated 20A 1P unless specifically
required to be otherwise (i.e.: 15A 1P).
5.3 There are two risers per every floor, each riser will have the
following:
Riser `A' Riser `B'
--------- ---------
Lighting 3W/S.F. 3W/S.F.
Receptacles 2.3W/S.F. 2.3W/S.F.
Misc. Power 7.1W/S.F. 7.1W/S.F.
HVAC Heating 13W/S.F. 13W/S.F.
HVAC Cooling 7W/S.F. 7W/S.F.
5.4 The Building is designed around the T-8 lamp.
5.5 The lighting for the Lessee lab space will be installed by the Lessee.
5.6 The Lessee lighting is to be installed by the Lessee.
5.7 The Lessee electrical is be installed by the Lessee.
5.8 The telephone company has provided fiber optic cable to the Main
Telephone wall space located on the first floor.
5.9 In a telephone room on each floor there are risers in line with the
floor below for the ability to run communication lines.
5.10 An empty conduit will be available for the Lessee to use from the first
floor telephone room to a telephone closet on each floor the Lessee has
leased space.
5.11 The Building uses a battery back-up for Building life safety systems.
Specifications for Tenant Improvements
PARTITIONS: Standard Lessee interior partitioning is to be
constructed of 1/2" gypsum wallboard on 2 1/2"
galvanized steel studs floor to ceiling. Lessee
demising partition is to be constructed of 1/2"
gypsum wallboard on 3 5/8" galvanized steel studs
floor to ceiling. This wall is required to have a
one-hour fire rating.
PAINTING: Two (2) coats of latex paint for interior
partitioning will be the standard minimum for each
Lessee suite.
FLOOR COVERING: A minimum standard for floor coverings is broadloom
carpet in a price point of $15/yd. installed. The
minimum base specification is to be 4" vinyl cove in
heavy gauge roll stock.
CEILING: Mineral fiber acoustical tile ceiling (Xxxxxxxxx 2 x
2 "Cirrus" 75-558) will be the base specification in
a 9/16" white flat tee suspended grid system.
DOORS: Suite Entry Doors - one pair of 3'-0" x 8'-6" premium
finish, plain sliced maple wood veneer doors and
Schlage "L" series mortised lever hardware for each
suite entry. Doors will be solid core in a knock-down
hollow metal frame.
Typical Lessee Interior Door - one complete 3'-0" x
8'-0" painted wood door with knock-down hollow metal
frame, and Schlage "D" series Sparta passage set will
be the Building standard.
All doors to have 2 pair bright chrome ball-bearing
hinges, and dome floor stops. Recessed/Integral
closers to be provided on suite entry doors only.
All trim to be bright chrome (US-26).
LIGHTING: Fully recessed fluorescent 2' x 4' light fixtures
with 18 cell parabolic reflectors, electronic
ballast, T-8 lamps designed to provide adequate
lighting at desk level. One fixture per each 80 feet
of usable area is the standard design criterium.
ELECTRICAL OUTLETS: Typical tenant layouts will require one 120
V duplex wall electrical outlet per 150 square feet
of rentable space, but this is to be used only as a
guide. Outlets to be white receptacle with white
cover plates. All excess outlets, dedicated outlets
or non-standard NEMA configurations required by
Lessee shall be approved by Building Design Engineer
and colors are to match typical outlets.
TELEPHONE OUTLETS: All phone installation is to be provided solely by
Lessee. During bids, the GC will provide a telephone
outlet that will include plaster trim ring and pull
cord tied to ceiling grid, only. Communication wiring
and cover plate by Lessee. Cover plates installed by
the Lessee are to be white.
HEATING/COOLING
SYSTEM: Lessor will provide Building standard heating and
cooling for normal office use at the point of VAV box
location. Any excess capacity (or extra VAV boxes),
special controls or exhaust required by Lessee layout
shall be provided by Lessor at Lessee's expense.
Lessee to provide beyond the VAV boxes.
WALL SWITCH: Toggle type wall switches will be the standard in
addition to white cover plates.
SPRINKLERS: Recessed type sprinkler heads with chrome escutcheons
are to be the Building standard.
MINI BLINDS: Horizontal aluminum mini-blinds will be installed on
all exterior glass.
SIGNAGE: Lessor will provide Lessee with a Building standard
suite sign and will list the Lessee in the Building
lobby directory.
ELEVATOR LOBBY: Lessee to provide design and finishes to Lessor for
review and approval.
Any alternate to a specification must be reviewed and approved by Lessor.
EXHIBIT H
SAMPLE LEASE GUARANTY
THIS LEASE GUARANTY is made as of the 9th day of January, 2001, by
PMC-Sierra, Inc., a Delaware corporation ("Guarantor"), in favor of Transwestern
- Xxxxxxxx I, LLC, a Delaware limited liability company ("Lessor"). Guarantor
recites as follows:
A. Lessor and PMC-Sierra, US, Inc., a Delaware corporation ("Lessee"),
have entered into that certain Office Lease (the "Lease") dated the date hereof
pursuant to which Lessor is leasing to Lessee certain premises located at 000
Xxxxxxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx.
B. As a condition precedent to Lessor's execution and delivery of the
Lease, and as an inducement for Lessor to enter the Lease, Guarantor desires to
guaranty the payment of all rent under the Lease on the terms and conditions
described herein.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby guaranties and agrees as follows:
1. Guarantor absolutely and irrevocably guaranties the payment of all
monthly rent, real estate taxes and operating expenses which may from time to
time be due and owing by Lessee to Lessor under the Lease (the "Guaranteed
Obligations"). If Lessee at any time fails to pay any Guaranteed Obligation
prior to the expiration of any applicable cure period under the Lease, Guarantor
will, upon demand from Lessor, pay the same. This Guaranty shall be continuing
and shall terminate only upon the full and complete payment of all Guaranteed
Obligations.
2. This Guaranty is a guaranty of payment and not of collection, the
obligations of Guarantor under this Guaranty are independent of the obligations
of Lessee, and Lessor may enforce this Guaranty against Guarantor without first
(a) making any effort at collection or enforcement of any Guaranteed Obligations
from or against Lessee or any other party that may be liable therefor, other
than providing any notices and cure periods required under the Lease, (b)
exercising or asserting any other right or remedy which may be available in
connection with the Guaranteed Obligations or resorting to or exhausting any
other security, guaranty or collateral held with respect to the Guaranteed
Obligations, or (c) asserting or filing any claim against the assets of Lessee,
Guarantor, or any other guarantor or any other party whatsoever. Neither failure
by Lessor to enforce any or all of its rights under the Lease or to insist upon
strict payment by Lessee of the Guaranteed Obligations, nor any grant by Lessor
of any indulgences or extensions of time to Lessee for the payment of any
Guaranteed Obligations, shall release Guarantor or in any way affect or diminish
Guarantor's obligations under this Guaranty. Guarantor expressly waives any
notice of acceptance of this Guaranty, diligence, presentment, demand, protest,
extension of time for payment of the Guaranteed Obligations, and notice of any
kind whatsoever, other than any notices and cure periods required under the
Lease.
3. This Guaranty shall remain and continue in full force and effect
notwithstanding (a) the commencement or continuation of any action or proceeding
by, against or concerning Lessee under any federal or state bankruptcy,
insolvency or other debtor-relief law, (b) the voluntary or involuntary
appointment of a receiver, trustee, keeper or other person who takes possession
of any of Lessee's assets, regardless of whether such appointment occurs as a
result of insolvency or any other cause, or (c) any assignment by Lessee for the
benefit of its creditors.
4. This Guaranty may not be amended, modified, waived, discharged or
terminated orally or by course of conduct, but only by an instrument in writing
duly executed by both Lessor and Guarantor. No waiver by Lessor of any default
of Lessee or Guarantor or any other event shall be effective unless in writing,
nor shall it operate as a waiver of any other default or of the same default on
a future occasion.
5. This Guaranty shall inure to the benefit of any person or persons,
entity or entities who now or hereafter may be entitled to the benefits or
obligated to perform the duties of Lessor under the Lease and shall be binding
upon the heirs, legal representatives, successors and assigns of Guarantor. All
rights and remedies of Lessor under this Guaranty and the Lease are cumulative
and not restrictive of any other rights or remedies available at law or in
equity.
6. Any notice required or permitted to be given hereunder shall be in
writing and shall be deemed duly given (a) when personally delivered, (b) one
day after being sent by Federal Express or similar overnight delivery service,
charges prepaid, or (c) three (3) business days after being deposited in the
U.S. Postal Service, postage prepaid, registered or certified mail, return
receipt requested (or when actually received, if earlier), and addressed as
follows: if to Lessor, at c/o CB Xxxxxxx Xxxxx of Virginia, Inc., 000 Xxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxx Xxxxx, Xxxxxxxx 00000, Attention Xxxxxxx Xxxxx; if to
Guarantor, at 000-0000 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx Xxxxxxxx, XXX 0X0,
Attention: Xxx Xxxxx, Manager of Real Estate.
7. The validity, effect, construction, performance and enforcement of
this Guaranty shall be governed in all respects by the laws of the State of
Maryland (without regard to conflicts of laws). Whenever possible, each
provision of this Guaranty shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Guaranty
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty, by its
duly-authorized representative, as of the day and year first above written.
PMC-SIERRA, INC., a Delaware corporation
By:
-------------------------------
Its:
-------------------------------
