EXHIBIT 10.27
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SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE ("Amendment") is made this 27th day of
January, 2004, by and between BAJA PROPERTIES, LLC ("Landlord") and SIMTEK
CORPORATION, ("Tenant").
WHEREAS, Tenant and Landlord entered into a Lease Agreement, dated July 26,
2000 (the "Lease") pertaining to the Premises described therein and commonly
known as Suites 100, 200, & 300, containing approximately 15,656 rentable square
feet, located in the Westech I Business Center, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Premises").
WHEREAS, Landlord and Tenant desire to amend the Lease to provide, among
other things, for the modification of the Lease Expiration date as more fully
herein and set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Lease Extension - The Lease is hereby extended to expire on February
28, 2013.
2. Base Lease Rate - The Base Lease Rate shall be modified beginning
March 1, 2004 as follows:
March 1, 2004 - February 28, 2005 - $12.25 PSF, NNN
March 1, 2005 - February 28, 2006 - $12.62 PSF, NNN
March 1, 2006 - February 28, 2007 - $13.00 PSF, NNN
March 1, 2007 - February 28, 2008 - $13.39 PSF, NNN
March 1, 2008 - February 28, 2013 - $13.50 PSF, NNN
This Amendment shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. As herein modified, the
lease shall remain in full force and effect in accordance with the terms and
conditions hereof.
IN WITNESS THEREOF, this Second Amendment has been executed as of the date first
above written.
TENANT: LANDLORD:
Simtek Corporation Baja Properties, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President Its: Manager
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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("Amendment") is made this 7th day of June,
2000, by and between BAJA PROPERTIES, LLC ("Landlord"), and SIMTEK CORPORATION,
("Tenant").
WHEREAS, Tenant and Landlord entered into a Lease Agreement, dated July 26,
2000 (the "Lease") pertaining to the Premises described therein and commonly
known as Suites 100, 200 & 300, containing approximately 15,656 rentable square
feet, located in the Westech I Business Center, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Premises").
WHEREAS, Landlord and Tenant desire to amend the Lease to provide, among
other things, for the modification of the Lease Commencement/Expiration dates as
more fully herein set forth.
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Possession
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Per Paragraph 3(a) of the Lease, Tenant shall take possession and the
Lease shall commence March 1, 2001, and expire on February 28, 2008.
2. Paragraph 39 (C). Tenant has made changes to the original floorplan.
Those changes have been agreed to in a separate agreement as a result,
the base rent is increased by $.50 psf to start at $11.00 psf, NNN and
escalate annually per the Lease.
This Amendment shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. As herein modified, the
Lease shall remain in full force and effect in accordance with the terms and
conditions thereof.
IN WITNESS THEREOF, this First Amendment has been executed as of the date first
above written.
TENANT: LANDLORD:
Simtek Corporation Baja Properties, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President Its: Manager
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STANDARD COMMERCIAL NET/NET/NET WAREHOUSE LEASE
STATE OF COLORADO
COUNTY OF EL PASO
1. LEASED PREMISES AND TERM: This Lease Agreement, made and entered into this
26th day of July, 2000 by and between Baja Properties, LLC , hereinafter
referred to as "Landlord", does hereby demise and lease unto Simtek Corporation,
hereinafter referred to as "Tenant", the premises known and described as Suites
100, 200 & 300 (approximately 15,656 rentable square feet which includes common
areas) at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ for the term of SEVEN (7)
years beginning on the 1st day of November, 2000, excepting delays due to
strikes, acts of God, failure in delivery of materials and events beyond the
Landlord's control, and ending on the 31st day of October 2007, unless the term
thereof shall be sooner terminated as hereinafter provided.
2. RENT AND SECURITY DEPOSIT:
(a) In consideration of said Lease, the Tenant, without prior notice or
demand, agrees to pay to the Landlord as minimum base rent for said premises for
the first 1 years of the term of this Lease, $10.50 psf, Triple Net, with
monthly payments in the amount of $13,699.00 Dollars; which said payments shall
be due and payable in advance on the first day of each and every calendar month
at the office of the Landlord, or such other place as the Landlord from time to
time, in writing, may designate. Tenant has previously deposited with Landlord
the sum of $14,000.00 as a Security Deposit.
(b) The monthly base rent to be paid to Landlord by Tenant shall be
increased annually, effective on the anniversary of the commencement date of
this Lease, said base rent shall be increased four percent (4%) each year.
(c) Security Deposit is defined as monies pledged as security for the
payment of the rent and other charges herein agreed to be paid, and for the
faithful performance of all the terms, conditions and covenants of this Lease.
If at any time during the term of this Lease Tenant shall be in default in the
performance of any provision of the Lease, and shall fail to remedy or cure said
default after having received fifteen (15) days written notice of same, then,
the Landlord may, at its option, apply monies held as partial or full
satisfaction of said default or declare said deposit to be forfeited. Should
this occur, Tenant shall immediately remit to Landlord sufficient funds to
re-establish the full amount of Security Deposit herein defined. Upon full and
satisfactory completion of this Lease, said deposit shall be refunded to the
Tenant, without interest.
(d) No dispute between Landlord and Tenant as to Landlord or Tenant
obligations under this Lease shall excuse the payment of rent or the faithful
performance of the other conditions of said Lease by either party.
3. POSSESSION:
(a) If Landlord, for any reason whatsoever, cannot deliver possession of
the said premises to the Tenant at the commencement of the term hereof, this
Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for
any loss or damage resulting therefrom, but in that event the term of the Lease
shall be amended to commence on the date when Landlord can deliver possession
and the expiration date shall be extended accordingly. If permission is given to
Tenant to occupy the premises prior to the commencement date, such occupancy
shall be subject to all provisions of this Lease and, if the term hereof
commences on a date later than the commencement date pursuant to the provisions
set forth above, the Parties hereto agree to execute and acknowledge a written
statement setting forth the actual date of commencement of this Lease and the
termination date. This Lease shall be in full force and effect even though
either Party may fail or refuse to execute such statement.
(b) The taking of possession of said premises by the Tenant shall be
conclusive evidence as against the Tenant that said premises were in good and
satisfactory condition when possession of same was taken.
4. LATE CHARGE: Tenant acknowledges that late payment of Tenant to Landlord
for rent or other sums due hereunder will cause Landlord to incur costs not
contemplated by this Lease, the exact amount of which would be extremely
difficult and impractical to ascertain. Such costs include, but are not limited
to, processing and accounting charges, and late charges that may be imposed on
Landlord by the terms of any mortgage or trust deed covering the premises.
Therefore, in the event Tenant should fail to pay any installment of rent in
full or any sum due hereunder in full when such amount is due, Tenant shall,
without being billed, pay to Landlord as additional rent, a late charge equal to
10% of each original installment or $25.00 per day until fully paid, whichever
is greater. Said late charge shall be assessed on the 5th day of each month. A
$20.00 charge will be paid by the Tenant to the Landlord for each returned
check.
5. CHARACTER OF OCCUPANCY: The demised premises shall be used only for
Office/Lab and for such other lawful purposes as may be incidental thereto.
Tenant has previously satisfied itself that Tenant's intended use is permitted
at this property and within the zoning and has not relied on representations
made by Landlord or its agents. Tenant shall at its own cost and expense obtain
any and all licenses and permits necessary for such use. Tenant shall comply
with all governmental laws, ordinances and regulations applicable to the use of
the demised premises. Tenant shall promptly comply with all Landlord or
government orders and directives for the correction, prevention, and abatement
of nuisances in or upon, or connected with the demised premises, all at Tenant's
sole expense. Tenant shall not permit the leased premises to be used in any way
which would, in the opinion of the Landlord, be extra hazardous or which would
in any way increase or render void the fire insurance on the leased premises.
6. ADDITIONAL RENT - TRIPLE NET EXPENSES: As additional rent, tenant shall pay
to Landlord along with the monthly base rent, one twelfth (1/12) of Tenant's
pro-rata share of the following property costs:
(1) Property taxes
(2) Insurance premiums
(3) Landscaping and yard maintenance services
(4) Management fees
(5) Supplies
(6) Snow removal
(7) Common area utilities
(8) Repairs, replacement and maintenance to the entire leased
premises including but not limited to the roof, exterior walls,
gutters, glass, heating, ventilation and air conditioning
systems, grounds, landscaping and parking areas
(9) Administrative costs equal to ten percent (10%) of the triple net
expenses
As used in this paragraph, "real property tax" shall mean any form of assessment
(both general and special), levy, penalty or tax (other than estate or
inheritance tax) imposed by any authority having direct or indirect power to tax
any legal or equitable interest of Landlord in the leased premises, including
any tax or rent (other than income tax) in lieu of or in addition to normal real
property taxes or assessments. Tenant may, at its sole cost and expense (in its
name or in the name of Landlord, or in the name of both as it may deem
appropriate) dispute and contest the real property tax, and in such case, said
disputed tax must be paid prior to being contested. Tenant acknowledges the
right to contest solely for a refund. Should the real property tax contested be
held valid, Tenant shall pay all items, court cost, attorney's fees, interest
and penalties relating thereto.
Landlord's good faith estimate for TRIPLE NET EXPENSES is approximately $1.50
s.f. based upon $0.85/s.f. for Taxes, $0.10/s.f. for Insurance; and $0.55/s.f.
for Common Maintenance Expenses. These Triple Net Expenses charged to the Tenant
shall be reconciled annually, and Tenant's Charges to be adjusted or credited
based upon the past twelve months' Actual Expenses. As of the commencement of
this Lease, Tenant shall pay their monthly pro-rata share of CAM, Taxes, and
Insurance at the monthly rate of $1,957.00 which equates to $1.50/s.f. per
annum, until the next reconciliation is provided by the Landlord.
7. PRO-RATIONS: Whenever the term "pro rate" shall appear in this Lease, it
shall refer to the Tenant's gross square footage 15,656 as that figure compares
to the total gross square footage included in any billing for taxes, insurance
or other services being provided for that portion of the leased premises.
8. REPAIRS AND MAINTENANCE: Tenant will at its own cost and expense, keep in
good repair and condition the interior of the leased premises, including doors,
windows, glass, electrical, plumbing and HVAC systems. If Tenant fails to
perform any duty described above, the Landlord may give notice of such failure.
If the duty is not performed by Tenant within thirty days after written notice
(or within a reasonably shorter period in the case of emergency), the Landlord
may perform the repair or maintenance work and charge the Tenant for any expense
incurred. Tenant shall pay the expense incurred within thirty (30) days.
Landlord and Landlord's agents and representatives shall have the right to enter
and inspect the demised premises at any time during reasonable business hours,
for the purpose of ascertaining the condition of the demised premises or in
order to make such repairs, additions or alterations as may be required to be
made by Tenant or Landlord under the terms of this Lease. At the termination of
this Lease, Tenant shall deliver up the leased premises with all improvements
located thereon, except as provided in Paragraph 9 hereof, in good repair and
condition, and will deliver all keys thereto at the office of the Landlord.
9. ALTERATIONS: Tenant shall not make any major alterations, additions, or
improvements to the demised premises without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Tenant may, without
the consent of Landlord, but at its own cost and expense and in a good
workmanlike manner, make such minor alterations, additions, or improvements, or
erect, remove, or alter such partitions, or erect such shelves, bins, machinery,
and trade fixtures as it may deem advisable, without altering the basic
character of the building or improvements, and in each case complying with all
applicable governmental laws, ordinances, regulations, and other requirements.
Tenant shall promptly pay the costs of all work performed and shall indemnify
and hold harmless the Landlord against liens, costs, damages and expenses
incurred in connection therewith; including any attorneys' fees incurred by
Landlord, if Landlord shall be joined in any action or proceeding involving such
work. Under no circumstances shall Tenant commence any such work until Landlord
has been provided with certificates evidencing that all contractors and
subcontractors performing the work have in full force and effect adequate
workmen's compensation insurance as required by the Laws of the State, as well
as public liability and builders risk insurance in such amounts, and according
to terms satisfactory to Landlord. At the termination of this Lease, Tenant
shall, if Landlord so elects, remove any or all alterations, additions,
improvements, and partitions erected by Tenant and restore the premises to their
original conditions, otherwise such improvements shall be delivered up to
Landlord with the premises. All shelves, bins, machinery, and trade fixtures
installed by Tenant may be removed if required by Landlord. All such removals
and restorations shall be accomplished in a good workmanlike manner so as not to
damage the primary structure or structural qualities of the building and other
improvements situated on the demised premises.
10. MECHANICS LIENS: Tenant agrees that it will promptly pay for any work done
in or about the demised premises, and will not permit or suffer any mechanics
liens to attach to the demised premises, and shall promptly cause any claim for
such lien to be released, or to secure Landlord to its satisfaction in the event
Tenant desires to contest any such claim.
11. SIGNS: No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
demised premises or the buildings of which they form a part, without the prior
written consent of Landlord. No awning or other projections shall be attached to
the outside walls of the demised premises without the prior written consent of
the Landlord.
Tenant shall remove all approved signs, advertisements, notices or
lettering at the termination of this Lease. Such installation and removals shall
be made in such manner as to avoid injury, defacement, or overloading of the
building and other improvements. Drawings for all Tenant identifying signs shall
be approved by Landlord before manufacture and installation.
12. UTILITIES: Tenant shall pay all charges incurred for any utility services
metered to its demised premises or for Tenant's pro- rata share of the utility
services provided to the demised premises and billed to Tenant by Landlord.
Tenant shall pay all such ▇▇▇▇▇▇▇▇ within 10 days of receipt. Tenants who
require additional water consumption or gas and electric consumption for the
performance of their day to day business will be billed a proportionate increase
over what their normal pro-rata share would be.
13. LEASE ASSIGNMENT OR SUBLETTING: Tenant shall not have the right to assign
this Lease or to sublet the whole or any part of the demised premises without
first obtaining prior written consent of Landlord. The Tenant shall not change
the ownership of the business in order to avoid this provision, and will, at the
request of the Landlord, provide whatever documentation is necessary to
establish that the Tenant is in compliance with this provision. If the Landlord,
upon the request of the Tenant, allows Tenant to assign or sublet the premises,
then, in the "event of default" as herein defined, Landlord, in addition to any
other remedies herein provided or provided by law, and at its option, may
collect directly from such assignee or subtenant all rents becoming due to
Tenant under such assignment, or sublease and apply such rent against any sums
due to it by Tenant hereunder, and no such collection shall be construed to
constitute a novation or a release of Tenant from the further performance of its
obligations hereunder. Assignor or Sublessor may not collect rent in excess of
the existing Lease rates and any such sums received by Assignor or Sublessor
must be immediately paid to the Landlord. The Landlord shall have the right to
assign any of its rights under this Lease.
14. INSURANCE, LIABILITY AND INDEMNITY:
(a) Tenant shall throughout the demised term, at its sole cost and expense,
provide and keep in force with responsible insurance companies satisfactory to
Landlord and to any mortgagee under a mortgage constituting a lien upon the
demised premises, public liability and property damage insurance. The liability
limits of all said insurance shall be a minimum of $1,000,000 Bodily Injury,
$1,000,000 Property Damage or a combined single limit of $1,000,000, protecting
Landlord and any such mortgagee, as well as Tenant against liability to any
employees or servants of Tenant or to any other person whomsoever arising out of
or in connection with Tenant's use of the leased premises of the condition of
the leased premises. Tenant is to furnish Landlord with a Certificate of
Insurance within 30 days after commencement of this Lease, or Landlord may
provide same and charge Tenant on its normal monthly billing. Landlord shall be
named as additional insured to tenant's policy.
(b) Landlord shall procure and maintain at all times during the term of
this Lease a policy or policies of insurance covering loss or damage to the
premises (exclusive of Tenant's trade fixtures, equipment, and personal
property), providing protection against all perils included within the
classification of "All Risk".
(c) Tenant shall indemnify and hold harmless Landlord from all loss,
damage, liability or expense, including attorneys fees, resulting from any
property damage or injury to any person, employee, agent, contractor, invitee or
visitor of Tenant in or about the premises or the building.
The foregoing provision shall not be construed to make Tenant responsible
for loss, damage, liability or expense resulting from injuries to third parties
caused by any act, omission or negligence of Landlord or of any officer,
employee, agent, contractor, invitee or visitor of Landlord. Landlord shall not
be liable for any loss or damage to person or property sustained by Tenant, or
other persons, which may be caused by the building or the premises, or any
appurtenances thereto, being out of repair; or by the bursting or leakage of any
water, gas, sewer or steam pipe, or by nature, or by theft or by any act of
neglect of any Tenant or occupant of the building, or of any other person, or by
any other cause whatsoever, unless caused by the willful neglect of the
Landlord.
(d) All personal property of any kind or description whatsoever in the
demised premises shall be at the Tenant's sole risk, and the Landlord shall not
be held liable for any damage done to or loss of such personal property or to
the business of the Tenant.
15. DAMAGE OR DESTRUCTION:
(a) In the event improvements on the premises are damaged by any casualty
which is covered under an insurance policy required to be maintained pursuant to
Paragraph 14, the Landlord may, at Landlord's option, either (1) repair such
damage as soon as reasonably possible at Landlord's expense, in which event this
Lease shall continue in full force and effect, or (2) give written notice to
Tenant within thirty (30) days after the date of occurrence of the damage of its
intent to terminate this lease. In the event Landlord elects to terminate this
Lease, Tenant shall have the right within ten (10) days after receipt of the
required notice, to notify Landlord in writing of Tenant's intention to repair
such damage at Tenant's expense, without reimbursement from Landlord, in which
event this Lease shall continue in full force and effect, and Tenant shall
proceed to make such repairs as soon as reasonably possible. If Tenant does not
give such notice within the ten (10) day period this Lease shall be canceled and
terminated as of the date of the occurrence of such damage. If the premises are
totally destroyed during the term of this Lease from any cause whether or not
covered by the insurance required under Paragraph 14 (including any destruction
required by any authorized public authority), this Lease may automatically
terminate as of the date of such total destruction, at the option of the
Landlord.
(b) If the premises are partially destroyed or damaged and Landlord or
Tenant make repairs pursuant to this Lease, the rent payable hereunder for the
period during which such damage and repair continues shall be abated in
proportion to the extent which Tenant's use of the premises is impaired. Except
for abatement of rent, if any, Tenant shall have no claim against Landlord for
any damage including lost profits and other consequential damages suffered by
reason of such damage, destruction, repair or restoration.
16. EMINENT DOMAIN: If the leased premises shall be taken by right of eminent
domain, in whole or substantially in part, for public purposes, then this Lease,
at the option of the Landlord, shall forthwith cease and terminate, and the
current rent shall be properly apportioned to the date of such taking and in
such event Landlord shall receive the entire award for the lands and
improvements so taken, and Tenant shall make no claim against Landlord for
compensation in connection with the taking referred to above.
17. SUBORDINATION: The Lease and all of the rights of Tenant hereunder are and
shall be subject and subordinate to any sales and/or lien of any mortgage now or
hereafter placed on the demised premises or any part thereof, and to any and all
renewals, modifications, consolidations, replacements, extensions or
substitutions of said sale and/or mortgage.
Tenant agrees to execute any documents required to effectuate such
subordination or to make this Lease subordinate to the lien of any mortgage,
deed of trust or ground lease, as the case may be.
18. ATTORNMENT: If the Landlord under the sale or the holder of the mortgage
shall succeed to the rights of the Landlord under this Lease, whether through
possession or foreclosure action or delivery of a new lease or deed, Tenant,
upon the request of such successor Landlord, shall attorn to and recognize such
successor Landlord as Tenant's Landlord under this Lease, and shall promptly
execute and deliver any instrument that such successor Landlord may request to
further evidence such attornment. Tenant hereby irrevocably appoints Landlord or
the successor Landlord the attorney-in-fact of Tenant to execute and deliver
such instrument on behalf of Tenant should Tenant refuse or fail to do so
promptly after request. Upon such attornment this Lease shall continue in full
force and effect as, or as if it were, a direct lease between the successor
Landlord and Tenant upon all of the terms conditions and covenants as are set
forth in the Lease.
19. HOLDING OVER: Should Tenant, or any of its successors in interest, hold over
the leased premises, or any part thereof, after the expiration of the term of
this Lease, unless otherwise agreed in writing, such holding over shall
constitute and be construed as tenancy from month to month only, at a rental
equal to double the monthly base rental paid the last month of the term of this
Lease. Tenant shall reimburse Landlord for and indemnify Landlord against all
damages and liability which Landlord incurs from Tenant's delay in vacating the
Premises, including without limitation, claims by and liability to any
succeeding Tenant on such delay and any attorney's fees and costs.
20. TENANT DEFAULT:
(a) The following events shall be deemed to be events of default by Tenant
under this Lease:
(1) Tenant shall fail to pay any installment of the rent or other
charges in full hereby reserved and such failure shall continue a period of ten
(10) days.
(2) Tenant shall fail to comply with any term, provision or covenant of
the Lease, other than the payment of rent or other charges and shall not cure
such failure within thirty (30) days after written notice thereof to Tenant, or
as otherwise prescribed in this Lease.
(3) Tenant shall become insolvent, or shall make transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
(4) Tenant shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or statute of the
United States or any State thereof; or Tenant shall be adjudged bankrupt or
insolvent in proceedings filed against Tenant thereunder.
(5) A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant.
(6) Tenant shall supply false or misleading information to the Landlord
or its agents or representatives in the form of personal or business data so as
to obtain Landlord's consent to lease or other unfair preference.
(7) Tenant shall fail to take occupancy, desert or vacate any
substantial portion of the premises.
(8) Tenant's failure to comply with the provisions or reporting
requirements of either the Subordination Clause or the Attornment Clause
contained within this Lease and such failure to comply continues for a period of
ten (10) days.
(b) Upon the occurrence of any of such events of default, Landlord shall
have, in addition to the normal fees provided by law, the option to pursue any
one or more of the following remedies without any notice or demand whatsoever;
(1) Terminate this Lease, in which event Tenant shall immediately
surrender the premises to Landlord, and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession of the leased premises, with
or without process of law, and expel or remove Tenant and any other person who
may be occupying said premises or any part thereof, by force if necessary,
without being liable for prosecution or any claim of damages therefore; and
Tenant agrees to pay to Landlord on demand the amount of all loss and damage
which Landlord may suffer by reason of such termination, whether through
inability to relet the premises on satisfactory terms or otherwise, including
any damages Landlord may incur because of special sums expended for fixing up
premises for Tenant.
(2) Enter upon and take possession of the leased premises and expel or
remove Tenant and any other person who may be occupying said premises or any
part thereof, by force if necessary, without being liable for prosecution or any
claim for damages therefore, and relet the premises and receive the rent
therefore; and Tenant agrees to pay to Landlord on demand any deficiency that
may arise by reason of such reletting as pertains to the unexpired portion of
this Lease.
(3) Enter upon the leased premises, by force, if necessary, without
being liable for prosecution or any claim for damages therefore and do whatever
Tenant is obligated to do under the terms of this Lease; and Tenant agrees to
reimburse Landlord on demand for any expenses which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease, and tenant
further agrees that Landlord shall not be liable for any damages resulting to
the Tenant from such action, whether caused by negligence of Landlord or
otherwise.
(4) It is agreed that, in case the demised premises are left vacant and
the rent be in default then Landlord may, without being obligated to do so, and
without terminating this Lease, retake possession of the demised premises and
rent the same for such terms as Landlord may deem best, making such changes and
repairs as may be required, all on behalf of and for the account of Tenant,
giving credit for the amount of rent so received, less all expense of such
changes and repairs, including lease commissions, and said Tenant shall, at
Landlord's option, be liable for the balance of the rent herein reserved until
the expiration of the term of this Lease.
(c) Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by law,
nor shall pursuit of any remedy herein provided constitute a forfeiture or
waiver of any rent due to Landlord hereunder or of any damages accruing to
Landlord by reason of the violation of any of the terms, provisions and
covenants herein contained. No waiver by Landlord of any violation or breach of
any of the terms, provision and covenants herein contained, shall be deemed or
construed to constitute a waiver of any other violation or breach of any of the
terms, provisions and covenants herein contained. Forbearance by Landlord to
enforce one or more of the remedies herein provided upon an event of default
shall not be deemed or construed to constitute a waiver of such default.
(d) The Tenant acknowledges and agrees that should it become necessary for
the Landlord to serve a "Demand for Payment of Rents or Possession" or similar
Notice, in accordance with State statutes, that said demand, when unpaid, shall
not automatically terminate Tenant's obligations to pay future rents and this
Lease may continue in full force and effect, at the option of the Landlord.
(e) The laws of the State in which the property is located shall govern
this Lease and any interpretations or constructions thereof. Further, the place
of performance and transaction of business shall be deemed to be in the County
of El Paso, State of Colorado; and in the event of litigation, the exclusive
venue and place of jurisdiction shall be as heretofore prescribed.
21. ESTOPPEL CERTIFICATES: Upon the request of either party, at any time, and
from time to time, Landlord and Tenant agree to execute and deliver to the
other, within ten (10) days after such request, a written instrument, duly
executed;
(a) Certifying that this Lease has not been modified and is in full force
and effect or if there has been a modification of the Lease, that this Lease is
in full force and effect as modified, stating such modifications
(b) specifying the dates to which the rent and other payments due under
this Lease have been paid
(c) stating whether or not, to the knowledge of the party executing such
instrument, the other party is in default and, if such party is in default,
stating the nature of the default
(d) stating the commencement date and the expiration date of the terms of
this Lease and
(e) stating which options to renew the term have been exercised, if any.
22. LANDLORD'S LIEN AND UNIFORM COMMERCIAL CODE: As security for Tenant's
payment of rent, damages and all other payments required to be made by this
Lease, Tenant hereby grants to Landlord a lien upon all goods, wares, equipment,
fixtures, furniture of Tenant now or subsequently located upon the leased
premises. If Tenant abandons or vacates any substantial portion of the leased
premises or is in default of the payment of any rentals, damage or other
payments required to be made by this Lease, Landlord may enter upon the leased
premises, by force if necessary, and take possession of all or part of the
aforesaid items, and may sell all or any part of the same at a public or private
sale, in one or successive sales, with or without notice, to the highest bidder
for cash and on behalf of Tenant, sell and convey all or part to the bidder,
delivering to the bidder all of the Tenant's title and interest in the items
sold to him. The proceeds of the sale shall be applied by the Landlord toward
the cost of the sale and then toward the payment of all sums then due by Tenant
to Landlord under the terms of this Lease. The statutory lien for rent is not
hereby waived, the express contractual lien herein granted being in addition and
supplementary thereto. To the extent, if any, this Lease grants Landlord, or
recognized in Landlord, any lien or lien rights greater than provided by the
laws of the state in which the leased premises are located pertaining to
Landlord's liens. This Lease is intended as, and constitutes a security
agreement within the meaning of the Uniform Commercial Code and, Landlord, in
addition to the rights prescribed in this Lease, shall have all of the rights,
titles, liens and interest in and to Tenant's property now or hereafter located
upon the leased premises which are granted a secured party, as that term is
defined, under the Uniform Commercial Code to secure the payment to Landlord of
the various amounts provided in this Lease and in compliance with same.
23. COST AND ATTORNEY'S FEES: If by reason of any default on the part of Tenant
it becomes necessary for the Landlord to employ an attorney or in case Landlord
shall bring suit to recover any rent due hereunder or for damages, or for breach
of any provision of this Lease or to recover possession of the leased premises,
or if Tenant shall bring any action, then and in any such event Tenant shall pay
Landlord's reasonable attorney's fees and all costs and expenses expended or
incurred by the Landlord in connection with such default or action.
24. QUIET ENJOYMENT: Landlord warrants that it has full right to execute and to
perform this Lease and to grant the estate leases, and, that Tenant, upon
payment of the required rents and performing the terms, conditions, covenants
and agreements contained in this Lease, shall peaceably and quietly have, hold
and enjoy the leased premises during the full term of this Lease as well as any
extension or renewal. However, Tenant accepts this Lease subject and subordinate
to any underlying Lease, mortgage, deed of trust or other lien presently
existing upon the leased premises. Landlord hereby is irrevocably vested with
full power and authority to subordinate Tenants interest under this agreement to
any underlying lease, mortgage, deed of trust or other lien hereafter placed on
the leased premises, and Tenant agrees upon demand to execute additional
instruments subordinating this Lease as Landlord may require. If the interest of
Landlord under this Lease shall be transferred by reason of foreclosure or other
proceedings for enforcement of any lien, deed of trust or mortgage on the leased
premises, Tenant shall be bound to the transferee (sometimes called the
"purchaser") under the terms covenants and conditions of this Lease for the
balance of the term remaining, and any extensions or renewals, with the same
force and effect as if the Purchaser were the Landlord under this Lease. Tenant
agrees to attorn to the Purchaser, as its Landlord, the attornment to be
effective and self-operative without the execution of any further instruments
upon the Purchaser succeeding to the interest of the Landlord under this Lease.
The respective rights and obligations of Tenant and the Purchaser upon the
attornment, to the extent of the then remaining balance of the term of this
Lease, and any extensions and renewals, shall be and are the same as those set
forth in this Lease.
25. BUILDING RULES AND REGULATIONS:
(a) Tenant shall not bring or keep within the building any animals.
(b) Canvassing, soliciting and peddling in the building are prohibited, and
Tenant shall cooperate to prevent such activities.
(c) No Tenant shall install any radio or television antenna or dish,
loudspeaker or other device on the roof or exterior walls of the building
without the written consent of Landlord. No television or radio or recorder
shall be played in such a manner as to cause a nuisance to any other Tenant.
26. FINANCIAL STATEMENT: Tenant shall furnish Landlord, upon request, a current
financial statement.
27. SEVERABILITY CLAUSE: If any clause or provision of this Lease is illegal,
invalid, or unenforceable under present or future laws effective during the term
of this Lease, then and in that event, it is the intention of the Parties hereto
that the remainder of this Lease shall not be affected thereby. The caption of
each paragraph hereof is added as a matter of convenience only and shall be
considered to be of no effect in the construction of any provision or provisions
of this Lease.
28. SURRENDER OF POSSESSION: The Tenant agrees to deliver up and surrender to
the Landlord possession of said premises along with all keys thereto, at the
expiration or termination of this Lease, by lapse of time or otherwise, in as
good repair as when the Tenant obtained the same at the commencement of said
term, except damage by the elements (occurring without the fault of the Tenant
or other persons permitted by the Tenant to occupy or enter the demised premises
or any part thereof or) by act of God, or by insurrection, riot, invasion, or
commotion, or of military or usurped power.
29. REMOVAL OF TENANT'S PROPERTY: If the Tenant shall fail to remove all effects
from said premises upon the abandonment thereof or upon the termination of this
Lease for any cause whatsoever, the Landlord, at its option, may remove the same
in any manner that it shall choose, and store the said effects without liability
to the Tenant for loss thereof, and the Tenant agrees to pay the Landlord on
demand any and all expenses incurred in such removal, including court costs and
attorney's fees and storage charges on such effects; or, sell any of the same,
at private sale and without legal process, for such prices as the Landlord may
obtain, and apply the proceeds of such sale upon any amounts due under this
Lease from the Tenant to the Landlord and upon the expense incident to the
removal and sale of said effects, rendering the surplus, if any, to the Tenant.
30. CONSENT NOT UNREASONABLY WITHHELD: Unless otherwise specifically provided,
whenever consent or approval of Landlord or Tenant is required under the terms
of this Lease, such consent shall not be unreasonably withheld or delayed.
Tenant's sole remedy, if Landlord unreasonably withholds or delays consent or
approval, shall be an action for specific performance and Landlord shall not be
liable for damages.
31. IMPLIED SURRENDER:
(a) No act or thing done by Landlord or Landlord's agents during the term
hereof or any extension thereof, shall be deemed an acceptance of a surrender of
the demised premises, and no agreement to accept such surrender shall be valid
unless in writing signed by the Landlord or his designated representative. No
employee of Landlord or of Landlord's agents shall have any power to accept the
keys of the demised premises prior to the termination of this Lease. (b) The
delivery of keys to any employee of the Landlord, or of Landlord's agents, shall
not operate as a termination of this Lease or a surrender of the demised
premises. No payment by Tenant, or receipt by Landlord, of a lesser amount than
the minimum monthly rent herein stipulated, shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
on any check or any letter accompanying any check, or payment as rent, be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance of such rent or
pursue any other remedy available to Landlord.
32. FORCE MAJEURE: In the event that either Party hereto shall be delayed or
hindered in or prevented from the performance of any act required hereunder by
reason of strikes, lockouts, labor troubles, inability to procure materials,
failure of power, restrictive governmental laws or regulations, riots,
insurrection, war or other reason of a like nature not the fault of the Party
delayed in performing work or doing acts required under the terms of this Lease,
then performance of any such act shall be excused for the period of the delay
and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay. The provisions of this section
shall not operate to excuse Tenant from prompt payment of the base rental or any
other payments required by the terms of this Lease.
33. NOTICE ADDRESS:
(a) Each provision of this instrument or of any applicable governmental
laws, ordinances, regulations and other requirements with reference to the
sending, mailing or delivery of any payment by Landlord to Tenant or with
reference to the sending, mailing or delivery of any notice or the making of any
payment by Landlord to Tenant or with reference to the sending, mailing, or
delivery of any notice or the making of any payment by Tenant to Landlord shall
be deemed to be complied with when and if the following steps are taken:
(1) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord in El Paso County, Colorado, at
the address hereinbelow set forth or at such other address as Landlord may
specify from time to time by written notice delivered in accordance herewith.
(2) All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address hereinbelow set forth, or at such
other address within the continental United States as Tenant may specify from
time to time by written notice delivered in accordance herewith.
(3) Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered whether actually received or not when
deposited in the United States Mail, postage prepaid, Certified Mail, Return
Receipt Requested, addressed to the Parties hereto at the respective addresses
set out opposite their names below, or at such other addresses as they have
theretofore specified by written notice delivered in accordance herewith.
Landlord's notice to Tenant advising same of breach or default will further have
been accomplished when personal delivery is made by Landlord or its agent and/or
representative to Tenant or Tenant's chief official.
Landlord: BAJA PROPERTIES, LLC Tenant: SIMTEK CORPORATION
C/O ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ C/O ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, PRES./CEO
▇▇▇ ▇. ▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ #▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
(b) If and when, including within the term "Landlord" as used in this
instrument, there is more than one person, firm, or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address in El Paso County, Colorado,
or any other locations, for the receipt of notices and payments to Landlord; if
and when, included within the term "Tenant" as used in this instrument, there is
more than one person, firm, or corporation, all shall jointly arrange among
themselves for their joint execution of such a notice specifying some individual
at some specific address within the continental United States for receipt of
notices and payments to Tenant. All Parties included within the terms "Landlord"
and "Tenant", respectively, shall be bound by notices given in accordance with
the provisions of this paragraph to the same effect as if each had received such
notice.
34. SUCCESSORS: The terms, provisions and covenants and conditions contained in
this Lease shall apply to, inure to the benefit of, and be binding upon the
parties hereto and upon their respective successors in interest and legal
representatives except as otherwise herein expressly provided.
35. GENDER: Words of any gender used in this Lease shall be held and construed
to include any other gender, any word in the singular number shall be held to
include the plural, unless the context otherwise requires.
36. BROKERAGE COMMISSIONS: Tenant warrants that it has had no dealings with any
broker or agent in connection with the negotiation or execution of this Lease
other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ of ▇▇▇▇▇ & ▇▇▇▇▇|Quantum Commercial Group,
(Landlord's Agent). Tenant agrees to indemnify Landlord and hold Landlord
harmless from any and all costs, expenses or liability for commissions or other
compensation or charges claimed by or awarded to any broker or agent with
respect to this Lease.
37. CORPORATE AUTHORITY: If Tenant is a corporation, Tenant warrants that it has
legal authority to operate and is authorized to do business in the state in
which the premises are situated. Tenant also warrants that the person or persons
executing this Lease on behalf of Tenant has authority to do so and fully
obligate Tenant to all terms and provisions of this Lease. Tenant shall, upon
request from Landlord, furnish Landlord with a certified copy of resolutions of
the Board of Directors authorizing this Lease and granting authority to execute
it to the person or persons who have executed it on Tenant's behalf.
38. AMENDMENT, ADDENDUM, MODIFICATION: Any Amendments, Addendum, Modifications,
and/or other Supplements, if any be hereto attached, are made a part hereof, and
shall be binding upon the Parties hereto, and if any provision of said
Amendments, Addendum, Modifications, or Supplements shall conflict in any manner
with any other provision of this Lease, the provision of the Amendment,
Addendum, Modification or Supplement shall prevail.
39. ADDITIONAL PROVISIONS:
(A) Tenant acknowledges and understands that the listing agent, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇ may have an ownership interest in the subject property and is agent for
the Landlord of this property and not agent for Tenant.
(B) Tenant shall have the option of paying rent to Landlord via an
electronic payment system to a bank account designated by Landlord.
(C) Landlord shall at its sole cost provide Tenant a turn-key buildout to
include approximately 12,656 SF finished office and 3,000 SF lab space with:
o full HVAC throughout, understanding lab requirements are in
excess of normal office space requirements.
o dropped ceiling with fluorescent lighting throughout
o conductive tiling in lab and "finished product" storage areas,
humidity control, vacuum and compressed air in lab.
o glue-down carpet, solid core doors with steel frames
o Male and female restrooms with showers.
Landlord, Tenant and project architect shall finalize Tenant's buildout,
specifications and floorplan within fifteen (15) days of mutual Lease execution.
Said flooplan will then be marked Exhibit "A" which will be attached hereto and
incorporated herein by this reference. Any changes to the floorplan shall be at
Tenant's sole cost.
(D) Landlord shall sublease from Tenant the approximately 12,000 SF at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. currently leased by Simtek Corporation. Landlord intends on
subleasing said space to a third-party or to buy-out the lease with Bethesda
Management Company.
Landlord shall have the option of delaying Simtek's Lease Commencement
defined herein by up to 120 days to secure a third-party tenant or buy-out.
(E) Should Bethesda Management Company not consent to the sublet/buy-out by
Landlord within thirty (30) days from mutual signature of this Lease, either
party may terminate this Agreeement.
IN WITNESS WHEREOF the Landlord and Tenant have entered into this Lease
Agreement consisting of 39 provisions, this ______ day of ________________
20______.
TENANT NAME: Simtek Corporation.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Tenant Signature Name and Title
STATE OF COUNTY OF
------------------ ---------------
Subscribed to and sworn to before me this _______ day of ___________________,
20______.
_______________________________ My Commission Expires________________________.
NOTARY PUBLIC
LANDLORD NAME: Baja Properties, LLC (Typed or Printed)
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/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Landlord Signature Name and Title
STATE OF Colorado COUNTY OF El Paso
-------- -------
Subscribed to and sworn to before me this _______ day of ________________, 20__
_______________________________ My Commission Expires__________________________.
NOTARY PUBLIC
FOR VALUE RECEIVED and consideration for and as an inducement to Landlord making
the within Lease with Tenant, the undersigned Guarantor(s) do hereby
unconditionally and without reservation jointly and severally guarantee to the
Landlord that the Tenant under said Lease will promptly and faithfully perform
and fulfill all of the obligations, covenants and agreements in said Lease on
the part of said Lease on the part of said Tenant to be performed and fulfilled;
and further, if any default shall be made by said Tenant in the payment of rent
or in the performance of any of the obligations, covenants and agreements
contained in said Lease to be paid or performed by the Tenant during the term of
the Lease of any extension or renewal or assignment thereof, the undersigned
Guarantor(s) will well and truly pay said rent and all arrears thereof and any
other sums due or payable under said Lease during the term of the Lease and any
extension, renewal, or assignment, thereof, and all damages, claims, demands,
costs and expenses which the Landlord may suffer or sustain or which may arise
in consequence of the breach or non-performance by the Tenant of any of its
obligations, covenants and agreements under said Lease during said term, and any
extension or renewal thereof.
The undersigned hereby expressly waive(s) any and all notice of any breach or
default by the Tenant under said Lease and do hereby consent to any extensions
or indulgences that may hereafter be given to the Tenant by the Landlord; and
the undersigned Guarantor(s) further agree(s) that the failure of the Landlord
to require strict performance at any time of any of the terms or provisions of
said Lease or any waiver of performance by the Landlord shall not release the
undersigned Guarantor(s) from liability under this Guarantee, and that the terms
and provisions of said Lease may be altered or modified (other than by
increasing the amount of rent payable thereunder) without notice to the
Guarantor(s) and without their/his consent, approval or waiver and without
releasing the undersigned from any liability under this Guarantee.
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GUARANTOR'S SIGNATURE GUARANTOR'S NAME/ADDRESS (Typed or Printed)
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GUARANTOR'S SIGNATURE GUARANTOR'S NAME/ADDRESS (Typed or Printed)
-------------------------------------------------------------------------------
GUARANTOR'S SIGNATURE GUARANTOR'S NAME/ADDRESS (Typed or Printed)
DATE_______________________________
STATE OF COLORADO County of El Paso
Subscribed to and sworn to before me this ______ day of __________________,
2000.
____________________________________ My Commission Expires ____________________
NOTARY PUBLIC
