Filed by Bowne Pure Compliance



 




Exhibit 10.1




DEVELOPMENT BUILDING AND CONFERENCE CENTER LEASE AGREEMENT




THIS LEASE is entered into and made as of February 1, 2008 by and between NORTHERN LIGHTS
SEMICONDUCTOR CORPORATION, a Delaware corporation, (“Landlord”) and CRAY INC., a Washington
corporation (“Tenant”).



WITNESSETH:




Landlord, in consideration of the rents and covenants hereinafter set forth, does hereby
demise, let and lease to Tenant, and Tenant does hereby hire, take and lease from Landlord, on the
terms and conditions hereinafter set forth, the following described premises, to have and to hold
the same, with all appurtenances specified herein, for the term hereinafter specified.




1. DESCRIPTION OF THE PROJECT, PREMISES, PRESONAL PROPERTY AND COMMON AREAS.



(a) Project. The “Project” consists of a multi-building project located in Chippewa
Falls, Wisconsin, consisting of approximately 7.8 acres of land and four buildings commonly
referred to as (i) the Cray Conference Center containing approximately 5,480 square feet
(“Conference Center”), (ii) the Development Building containing approximately 90,260 square feet
(“Development Building”), (iii) the I.C. Fab II Building containing approximately 42,335 square
feet (“Fab II Building”), and (iv) the 890 Building containing approximately 4,033 square feet
(“890 Building”) (referred to herein individually as a “Building” and collectively as the
“Buildings”). As of the Commencement Date, the parties agree that the total square footage of the
Buildings located within the Project is 142,108 square feet. A site plan of the project is attached
hereto as Exhibit A.



(b) Premises. 



(1) Development Building. The “Premises” in the Development Building will include
approximately the second floor and portions of first floor and basement of the Development Building
located at 900 Lowater Drive, Chippewa Falls, Wisconsin and includes 39,719 used exclusively by the
Tenant. A floor plan of the Premises is attached hereto as Exhibit B. Landlord shall occupy the
remaining portions of the Development Building, including the Development Building Area on the
first floor of the Development Building (“Development Building Area”) and the new tech lab located
within the basement of the Development Building (“NTL”). Landlord and Tenant shall share common
spaces.



(2) Conference Center. The “Premises” will include the Conference Center located 920 Lowater
Drive, Chippewa Falls, Wisconsin containing approximately 5,480 square feet. A site plan for this
portion of the Premises is attached hereto as Exhibit C.


 


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(c) Personal Property. During the Term, Tenant shall have the right to use, and shall
maintain and repair, all personal property of Landlord currently located in the Premises. Upon
expiration or earlier termination of the Lease, said personal property shall remain in the Premises
and Tenant shall no longer have the right to use the same. All such personal property shall be
surrendered to Landlord in the same condition as on the Commencement Date (as hereinafter defined),
subject to ordinary and reasonable wear and tear. During the Term, Landlord shall maintain and
repair, and shall not remove, any furniture and fixtures owned by Landlord and located within the
common areas that are made available for use by Tenant hereunder.



(d) Common Areas. Tenant shall have the non-exclusive right to use all common areas
of the Project, including, without limitation, sidewalks, driveways, parking areas, recreational
facilities and other amenities, in accordance with the terms of this Lease.



2. TERM. The term of this Lease (the “Term”) shall be for ten years commencing on January 1,
2008 (the “Commencement Date”) and ending on the 31st day of December, 2017, (the
“Expiration Date”), unless sooner terminated as provided in this Lease.



3. TENANTS OPTION TO TERMINATE LEASE. Tenant shall have the option to terminate this Lease by
providing written notice to the Landlord of its intent to terminate this Lease upon twelve months’
advance notice. This Lease shall then terminate one year from the date the notice by tenant is
sent to the Landlord. Upon termination, the parties shall have no further liabilities under this
Lease.




4. RENT.



(a) Base Rent. Tenant shall pay to Landlord, at the address listed in Section 25
below, Base Rent for the Premises in accordance with the following schedule:



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Monthly
	 	 	Annual	 	Installments
	Period	 	Base Rent	 	of Base Rent
	01/01/08-12/31/08
	 	$	205,910.05	 	 	$	17,159.17	 
	01/01/09-12/31/09
	 	$	208,976.62	 	 	$	17,414.53	 
	01/01/10-12/31/10
	 	$	212,136.48	 	 	$	17,678.04	 
	01/01/11-12/31/11
	 	$	215,298.34	 	 	$	17,941.53	 
	01/01/12-12/31/12
	 	$	218,557.49	 	 	$	18,213.12	 
	01/01/13-12/31/13
	 	$	222,497.65	 	 	$	18,541.47	 
	01/01/14-12/31/14
	 	$	226,486.46	 	 	$	18,873.87	 
	01/01/15-12/31/15
	 	$	230,572.56	 	 	$	19,214.38	 
	01/01/16-12/31/16
	 	$	234,707.30	 	 	$	19,558.94	 
	01/01/17-12/31/17
	 	$	238,939.32	 	 	$	19,911.61	 






Tenant shall pay the monthly installments of the Base Rent and all other amounts as shall come due
and payable by Tenant to Landlord under the terms of this Lease on the first day of each month on
which it is due.



(b) Taxes, Project Expenses and Building Expenses. Tenant shall pay as additional
rent Tenant’s Project Proportionate Share (as defined below) of all Project Expenses (as defined
below), Tenant’s Taxes Proportionate Share (as defined below) of all Taxes (as defined below), and
Tenant’s Building Proportionate Share (as defined below) of all Building Expenses (as
defined below), which shall accrue and be due and payable from and after the Commencement Date as
provided herein below.


 


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(c) Definitions.



(1) “Tenant’s Building Proportionate Share” shall be equal to the percentage determined by
dividing the aggregate square footage of the Premises by the total square footage of the
Development Building. As of the Commencement Date, Tenant’s Building Proportionate Share shall be
equal to 54.2%. Tenant’s Building Proportionate Share shall be subject to adjustment during the
Term in the event of a reduction in the square footage of the Premises.



(2) “Tenant’s Taxes Proportionate Share” shall mean the percentage determined by dividing the
then existing square footage of the Premises by the total square footage of all of the Buildings
within the Project. Tenant’s Taxes Proportionate Share shall be subject to adjustment during the
Term in the event of a reduction in the square footage of the Premises or an increase in the total
square footage of the Project.



(3) “Tenant’s Project Proportionate Share” shall mean the percentage determined by dividing
the number of Tenant’s employees in the Project by the total number of employees in the Project,
wherein the total number of employees in the Project is comprised of both Tenant’s and Landlord’s
employees. Tenant’s Project Proportionate Share shall be subject to adjustment during the Term in
the event of an increase or reduction in the number of either Tenant’s or Landlord’s number of
employees in the Project relative to the total number of employees in the Project by 10% or more.



(4) “Taxes” shall mean all real estate taxes, installments of special assessments, sewer
charges, transit taxes, taxes based upon receipt of rent and any other federal, state or local
governmental charge, general, special, ordinary or extraordinary (excluding income, franchise, or
other taxes based upon Landlord’s income or profit, unless imposed in lieu of real estate taxes)
which shall now or hereafter be levied, assessed or imposed against the Project and shall apply to
said obligations at such time in which said obligations are accrued or levied. Taxes shall not
include any additional taxes attributable to the improvement of any portion of the Project occupied
by Landlord or any other occupants of the Project.



(5) “Project Expenses” shall mean all of Landlord’s costs and expenses of operation and
maintenance of the common areas of the Project, including, without limitation, the walkways,
driveways, parking lots, landscaped areas and other amenities within the Project, as determined in
accordance with generally accepted accounting principles or other recognized accounting practices,
consistently applied, including costs (including attorney’s fees) incurred in connection with any
good faith contest of Taxes; insurance premiums for the insurance required to be maintained by
Landlord as provided herein and such other insurance as is otherwise typically maintained by owners
of similar projects in the Chippewa Falls area; water, electrical and other utility charges serving
the common areas of the Project (but excluding any charges for utilities serving any Building
within the Project); fees and charges of any property manager or independent contractor who, under
a contract with Landlord, maintains or repairs the Project


 


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(which shall not exceed the amount typically paid for property management of comparable properties
in the Chippewa Falls area); landscape maintenance costs; costs for removal of trash and
recyclables from exterior collection receptacles located within the Project; and costs for removal
of snow from driveways, walkways and parking lots within the Project. Notwithstanding the preceding
to the contrary, Project Expenses shall not include any costs incurred by Landlord in connection
with the construction of any alterations, additions or improvements for the sole benefit of
Landlord or other occupants of the Project; financing and refinancing costs, including interest on
debts relating to mortgage loans and rental fees under any ground or underlying leases; business or
income taxes; depreciation or amortization expense (except as provided below); costs in excess of
the insurance deductible (which deductible shall in no event exceed $50,000.00) incurred by
Landlord in connection with repairs and restorations following the occurrence of a casualty loss;
leasing commissions and other costs of leasing incurred by Landlord; costs of restoring any
Building or other improvements following a taking or transfer in lieu thereof; costs incurred by
Landlord as a result of any improvements by Landlord required to cause the Project to comply with
applicable laws, ordinances, building codes, rules or regulations; costs incurred as a result of
the negligent or intentional acts of Landlord, other occupants of the Project or their respective
employees, agents or contractors; and any costs which would be capitalized under generally accepted
accounting principles (except as provided below). Except as otherwise provided above, and subject
to Section 12 below, Project Expenses shall include the cost of necessary capital repairs and
replacements to exterior common areas of the Project (excluding any Buildings), which shall be
amortized monthly over the useful life of the capital item on a straight-line basis during the
Term.



(6) “Building Expenses” shall mean all of Landlord’s costs and expenses of operation and
maintenance of the Development Building (excluding any Project Expenses) as determined in
accordance with generally accepted accounting principles or other recognized accounting practices,
consistently applied, including, without limitation, all costs and expenses incurred by Landlord in
performing its obligations under Sections 8(a) and 11(b) below; costs incurred in providing
card-key access to the Development Building; and costs of security services for common areas of the
Development Building. Notwithstanding the preceding to the contrary, Building Expenses shall not
include any costs incurred by Landlord in connection with the construction of any alterations,
additions or improvements for the sole benefit of Landlord or other occupants of the Building or
Project; financing and refinancing costs, including interest on debts relating to mortgage loans
and rental fees under any ground or underlying leases; business or income taxes; depreciation or
amortization expense (except as provided below); costs in excess of the insurance deductible (which
deductible shall in no event exceed $50,000.00) incurred by Landlord in connection with repairs and
restorations following the occurrence of a casualty loss; leasing commissions and other costs of
leasing incurred by Landlord; costs of restoring any Building or other improvements following a
taking or transfer in lieu thereof; costs incurred by Landlord as a result of any improvements
required to cause the Development Building to comply with applicable laws, ordinances, building
codes, rules or regulations; costs incurred as a result of the negligent or intentional acts of
Landlord, other occupants of the Project or their respective employees, agents or contractors; and
any costs which would be capitalized under generally accepted accounting principles (except as
provided below). Except as otherwise provided above, and subject to Section 12 below, Building
Expenses shall include the cost of necessary capital repairs and replacements to the Development
Building, which shall be
amortized monthly over the useful life of the capital item on a straight-line basis during the
Term.


 


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(d) Payment of Taxes. Tenant shall pay to Landlord Tenant’s Taxes Proportionate Share
of all Taxes on or before the later of (i) the 20th day prior to the date the applicable
Taxes are due and payable or (ii) the 10th day following Landlord’s written demand
(which demand shall be accompanied by a copy of the related tax bill or other accurate statement of
the amount of the Taxes). If this Lease shall commence, expire or be terminated on any date other
than the last day of a calendar year, then Tenant’s Project Proportionate Share of Taxes for such
partial calendar year shall be prorated on the basis of the number of days during the year this
Lease was in effect in relation to the total number of days in such year. Subject to the foregoing
and subject to rights of Landlord to contest or dispute Taxes. Landlord shall pay the Taxes to the
applicable taxing authority(ies) on or before the date they are due and payable.



(e) Payment of Project Expenses and Building Expenses. Landlord shall deliver to
Tenant a written estimate of the Project Expenses and Building Expenses and the portion payable by
Tenant for the ensuing year or portion thereof. On or before the first day of each month during the
Term, Tenant shall pay such estimated amount of Tenant’s annualized share of such Project Expenses
and Building Expenses in twelve equal monthly installments, in advance. Following the expiration of
each calendar year, Landlord shall furnish Tenant a statement showing in reasonable detail the
actual Project Expenses and Building Expenses for the preceding calendar year. Within thirty days
after service of the aforementioned statement, Tenant shall pay to Landlord, or Landlord shall
credit against the next rent payment or payments due from Tenant, as the case may be, the
difference between Tenant’s actual proportionate share of Project Expenses and Building Expenses
for the preceding calendar year and the amount of Project Expenses and Building Expenses paid by
Tenant during such year. If this Lease shall commence, expire or be terminated on any date other
than the last day of a calendar year, then Tenant’s proportionate share of Project Expenses and
Building Expenses for such partial calendar year shall be prorated on the basis of the number of
days during the year this Lease was in effect in relation to the total number of days in such year.
Subject to the foregoing obligation of Tenant to pay Tenant’s proportionate share of Project
Expenses and Building Expenses, Landlord shall pay the Project Expenses and Building Expenses on or
before the date they are due and payable. Tenant or its accountants shall have the right to
inspect, at reasonable times and locations and in a reasonable manner, during the ninety day period
following the delivery of Landlord’s statement of Project Expenses and Building Expenses for a
given calendar year, such of Landlord’s books and records as pertain to and contain information
concerning such costs and expenses in order to verify the amounts thereof; unless Tenant takes
written exception to any item within ninety days after the furnishing of the statement, such
statement shall be considered as final and accepted by Tenant; if Tenant shall dispute any item or
items included in the determination of Landlord’s Project Expenses and Building Expenses for a
given calendar year, and such dispute is not resolved by the parties hereto within sixty days after
the date on which Tenant gives written notice to Landlord of the disputed items, then either party
may, within thirty days thereafter, request that a fun of certified public accountants mutually
selected by Landlord and Tenant render an opinion as to whether or not the disputed item or items
may properly be included in the determination of Landlord’s Project Expenses and Building Expenses
for such year; and the opinion of such firm on the matter shall be conclusive and binding upon the
parties hereto; the
fees and expenses incurred in obtaining such an opinion shall be borne by Tenant unless Landlord’s
statement contains errors aggregating more than 5% of the Project Expenses and Building Expenses.


 


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(f) Service Charge. Any sum not paid within thirty days of the due date shall bear
interest at a rate equal to the greater of eighteen 18% per annum or the then current prime rate
(as listed in the “Money Rates” section of the Wall Street Journal) plus 2% per annum (or such
lesser percentage as may be the maximum amount permitted by law) from the date due until paid.



5. TENANT FINISH IMPROVEMENTS. Tenant accepts the Premises in “AS IS, with all faults”
condition, with no representations or warranties of any kind by or on behalf of Landlord with
regard to the Premises. Landlord shall have no obligation to construct any Tenant improvements or
make any other changes to the Premises except as expressly provided herein,



6. CABLE PLANT. Tenant shall have the right, at its sole expense, to maintain and to
exclusively use all existing cable plant and any related facilities and equipment located within
the Development Building and the common areas of the Project. Tenant shall have the right to use
such cable plant and such related facilities and equipment in the same manner in which the previous
Tenant used the same after the sale and transfer of the Project from the previous Tenant to
Landlord.



During the Term, Tenant shall have the right to access and exclusively use the computer room
(B04) located in the basement of the Development Building. Tenant shall have the right to use such
room and related facilities and equipment in the same manner in which the previous Tenant used the
same after the sale and transfer of the Project from the previous Tenant to Landlord.




7. USE OF THE PREMISES.



(a) Specific Use. The Premises shall be used exclusively for purposes of general,
administrative and sales office, research and development, training, and for any other lawful
purpose incidental thereto, and shall not be used for any other purpose.



(b) Covenants Regarding Use. In connection with its use of the Premises, Tenant agrees
to do the following:



(1) Tenant shall use the Premises and conduct its business thereon and throughout the Project
in a safe, careful, reputable and lawful manner; shall keep and maintain the Premises in as good a
condition as they were on the Commencement Date, subject to ordinary and reasonable wear and tear,
and shall make all necessary repairs to the Premises other than those which Landlord is obligated
to make as provided elsewhere herein.



(2) Tenant shall not commit, nor allow to be committed, in, on or about the Premises or the
Project, any act of waste, including any act which might deface, damage or destroy the Development
Building, Project or any part thereof; use or permit to be used on the
Premises any equipment or other thing which might cause injury to person or property; permit any
objectionable or offensive noise or odors to be emitted from the Premises.


 


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(3) Tenant shall not overload the floors of the Premises beyond their designed weight bearing
capacity.



(4) Tenant shall not use the Premises, nor allow the Premises to be used, for any purpose or
in any manner which would invalidate any policy of insurance now or hereafter carried on the
Project or increase the rate of premiums payable on any such insurance policy. Should Tenant fail
to comply with this covenant, Landlord may require Tenant to reimburse Landlord as additional rent
for any increase in premiums charged during the term of this Lease on the insurance carried by
Landlord on the Premises and attributable to the use being made of the Premises by Tenant.



(c) Compliance with Laws. Tenant shall not use or permit the use of any part of the
Premises for any purpose prohibited by law. Tenant shall, at Tenant’s sole expense, comply with all
laws, statutes, ordinances, rules, regulations and orders of any federal, state, municipal or other
governmental agency thereof having jurisdiction over and relating to the use of the Premises;
provided, however, that Landlord shall be required to make any improvements or alterations to the
Premises required to comply with any such laws, statutes, ordinances, rules, regulations or orders
unless such repairs are required as a result of Tenant’s specific use or improvement of the
Premises from and after the Commencement Date. Without limiting the generality of the foregoing,
Tenant shall pay the cost of ADA compliance for the Building or affected portion thereof if
occasioned solely by Tenant’s use or improvements.



(d) Compliance with Project Rules and Regulations. Landlord and Tenant shall comply
with and conform to the rules and regulations attached to this Lease, made a part hereof and marked
Exhibit D.



(e) Compliance with Zoning. Tenant knows the character of its operation in the
Premises and that applicable zoning ordinances and regulations are of public record. Tenant shall
have sole responsibility for its compliance therewith, and Tenant’s inability to comply shall not
be cause for Tenant to terminate this Lease.




8. UTILITIES AND OTHER BUILDING SERVICES.



(a) Services to be Provided. Landlord shall furnish Tenant with the following
utilities and building services to the extent reasonably necessary for Tenant’s use and occupancy
of the Premises or as may be required by law or directed by governmental authority:



(1) Heating, ventilation, and air conditioning;



(2) Electricity for lighting and operating business machines and equipment in the Premises;
and



(3) Water for lavatory and drinking purposes.


 


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(b) Additional Services. If Tenant uses any other utilities or building services in
addition to those identified above or uses any of the above utilities or building services in
frequency, scope, quality or quantities greater than normally required by Landlord within the
Development Building, then the incremental cost thereof shall be borne by Tenant. If Landlord or
any other tenant of the Development Building uses any other utilities or building services in
addition to those identified above or uses any of the above utilities or building services in
frequency, scope, quality or quantities greater than normally required by Tenant, then the
incremental cost thereof shall be borne by Landlord or such other tenant and excluded from Project
Expenses and Building Expenses. All utilities for the Development Building Area and NTL shall be
separately metered, borne by Landlord and excluded from Project Expenses and Building Expenses, and
the proportions of the parties’ respective allocation of Building Expenses shall be adjusted to
reflect such separate
metering.



(c) Interruption of Services. Tenant understands, acknowledges and agrees that any one
or more of the utilities or building services identified above may be interrupted by reason of
accident, emergency or other causes beyond Landlord’s control, or may be discontinued or diminished
temporarily by Landlord or other persons until certain repairs, alterations or improvements can be
made; that Landlord does not represent or warrant the uninterrupted availability of such utilities
or building services; and that any such interruption unless caused by the gross negligence or
willful misconduct of Landlord shall not be deemed an eviction or disturbance of Tenant’s right to
possession, occupancy and use of the Premises or any part thereof, or render Landlord liable to
Tenant in damages by abatement of rent or otherwise, or relieve Tenant from the obligation to
perform its covenants under this Lease.



9. PARKING. Tenant and its employees, agents, contractors, invitees and guests shall have the
non-exclusive right to park vehicles in the parking areas of the Project on an undesignated basis
at no additional charge to Tenant or its employees, agents, contractors, invitees and guests.
However, Tenant and its employees, agents, contractors, invitees and guests shall have exclusive
right to not less then twenty parking spaces within the parking areas of the Project as shown on
Exhibit A attached hereto.



10. SIGNS. Landlord and Tenant shall mutually agree on the signage to be retained or
installed by Tenant in the Project from and after the Commencement Date, Tenant shall not inscribe,
paint, affix or display any additional signs, advertisements, or notices without the prior written
consent of Landlord, which consent shall not be unreasonably withheld or delayed. Upon the
expiration or early termination of this Lease, Tenant shall remove all of its signs and shall
repair and restore any damage or injury in connection therewith, at Tenant’s sole expense. Landlord
shall have the right to erect and/or otherwise install such signage as may be reasonably required
by Landlord, including the right to use the existing boulevard pedestal located northeast of the
main entrance driveway to the Conference Center, provided that such signage complies with city
ordinances and other applicable laws and regulations. Landlord shall pay all costs and expenses for
Landlord’s signage.


 


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11. REPAIRS, MAINTENANCE, ALTERATIONS, IMPROVEMENTS AND FIXTURES.



(a) Repair and Maintenance of Project. Landlord shall maintain and repair the exterior
common areas and facilities of the Project, including, without limitation, maintenance and repair
of walkways, driveways, parking lots and landscaped areas; removal of trash and recyclables from
exterior collection receptacles located within the Project; and removal of snow from driveways and
parking lots within the Project.



(b) Repair and Maintenance of Building. Landlord shall keep and maintain in good
order, condition and repair the roof, roof membrane, exterior and interior load-bearing walls
(including any plate glass windows comprising a part thereof), foundation, basement, and electrical
and plumbing systems serving the Development Building (collectively, “Building Systems”), excluding
any Building Systems located within or serving exclusively the Development Building Area or NTL;
maintain and repair the HVAC equipment serving the Development Building, excluding chillers or
other HVAC equipment serving exclusively the Development Building Area or NTL or installed for the
sole purpose of operating trade fixtures and/or equipment located therein; maintain all elevators
located within the Development Building; periodically wash exterior windows of the Development
Building; replace all lamps, bulbs, starters and ballasts within the Development Building,
excluding the Development Building Area and personal lamps of Tenant’s employees; perform
janitorial services within common areas of the Development Building, excluding the Development
Building Area and NTL and such other portions of the Development Building occupied by Landlord or
other occupants; and provide vending and coffee services within the common areas of the Development
Building (which shall be billed in accordance with Tenant’s Project Proportionate Share which is
equal to 50% as of the Commencement Date).



Landlord shall keep and maintain in good order, condition and repair the roof, roof membrane,
exterior and interior load-bearing walls (including any plate glass windows comprising a part
thereof), foundation, basement, and electrical and plumbing systems serving the Conference Center;
maintain and repair the HVAC equipment serving the Conference Center; and periodically wash
exterior windows of the Conference Center.



(c) Repair and Maintenance of Premises. Except as provided in Sections 11(a) and 11(b)
hereof, Tenant shall, at its own expense, keep and maintain the Premises in good order, condition
and repair at all times during the Term, subject to damage by casualty loss and Tenant shall
promptly repair all damage to the Premises and replace or repair all damaged or broken furniture,
fixtures, equipment and appurtenances with materials equal in quality and class to the original
materials, and within any reasonable period of time. If in any one event the cost of such repair or
replacement is estimated to exceed Ten Thousand and no/100 Dollars ($10,000.00), then such repair
or replacement shall be subject to the reasonable approval of Landlord. If Tenant fails to do so,
Landlord may, but need not make such repairs and replacements, and Tenant shall pay Landlord the
cost thereof within thirty (30) days following Landlord’s written demand, plus an amount equal to
fifteen percent (15%) of any costs.


 


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(d) Alterations or Improvements. During the Term, Tenant shall have the right to make
such alterations, additions or improvements to the Premises (“Improvements”) as deemed necessary or
desirable by Tenant, provided that such Improvements are constructed in accordance with the terms
and conditions of this subsection (d); provided, however, Tenant shall not make any Improvements of
a structural nature without obtaining Landlord’s prior written consent. At the time Tenant desires
to make any Improvements with a cost in excess of Ten Thousand and no/100 Dollars ($10,000.00),
Tenant shall submit (i) a general plan or layout to Landlord for Landlord’s review; (ii) an
indication of any Structural Improvements which require Landlord’s consent; and (iii) an express
written notice that Landlord must notify Tenant within twenty (20) days if Landlord will require
Tenant to remove such Improvements prior to the Expiration Date. Within fifteen (15) days following
receipt of such plan and notice, Landlord shall notify Tenant in writing if Landlord objects to any
such Improvements, in which case Tenant may not proceed, and/or if Landlord will require Tenant to
remove such Improvements prior to the Expiration Date (“Removal Notice”). Tenant shall not have the
right to make any Improvements to or on the common areas of the Project. All Improvements shall be
made in compliance with all applicable laws and building codes, in a good and workmanlike manner
and in quality equal to or better than the original construction of the Premises. Tenant shall
promptly pay all costs attributable to such Improvements and shall indemnify, defend and hold
harmless Landlord from and against any mechanic’s liens or other liens or claims filed or asserted
as a result thereof and against any costs or expenses which may be incurred as a result of building
code violations attributable to such work. Tenant shall promptly repair any damage to the Premises
or the Project caused during the construction of such Improvements. Landlord shall give proper
notice to Tenant of any possible claim with respect to which Tenant’s obligation to indemnify,
defend and hold harmless Landlord may apply and Tenant shall have the right to defend any such
claim with counsel of Tenant’s choosing reasonably acceptable to Landlord. All Improvements made by
Tenant to the Premises during the Term shall remain the property of Tenant and Tenant shall be
entitled to all depreciation and amortization of costs in connection therewith. All property taxes
attributable to such Improvements will be paid by Tenant and not included in Building Expenses.
Prior to surrender of the Premises to Landlord, Tenant shall remove any Improvements identified by
Landlord for removal in the Removal Notice and, at Landlord’s request provided at least fifteen
(15) days prior to the Expiration Date or earlier termination of the Lease, such other Improvements
constructed by Tenant during the Term which were not submitted to Landlord for its prior review.
Any damage caused by such removal shall be repaired at Tenant’s cost and expense. Notwithstanding
the preceding to the contrary, Tenant shall have no obligation to remove any Improvements that
existed on the Commencement Date, or any Improvements that Tenant installed during the Term and
which Landlord did not identify for removal following Landlord’s review of the general plans. In
the event Tenant so fails to remove any Improvements that Tenant is obligated to remove, Landlord
may have same removed
and the Premises so repaired at Tenant’s expense.



(e) Trade Fixtures. Any trade fixtures installed on the Premises by Tenant at its own
expense during the Term, such as movable partitions, counters, shelving, showcases, mirrors and the
like may, and, at the request of Landlord, shall be removed on the Expiration Date or earlier
termination of this Lease, provided that Tenant is not then in default, that Tenant bears the cost
of such removal, and further that Tenant repair at its own expense any and all damage to the
Premises resulting from the original installation of and subsequent removal of such trade



 


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fixtures. If Tenant fails so to remove any and all such trade fixtures from the Premises on the
Expiration Date or earlier termination of this Lease, all such trade fixtures shall become the
property of Landlord unless Landlord elects to require their removal, in which ease Tenant shall
promptly remove same and restore the Premises to their prior condition. In the event Tenant so
fails to remove same, Landlord may have same removed and the Premises so repaired at Tenant’s
expense. Any such work shall be conducted in a manner consistent with subsection (d) above.



(f) Cabling. During the Term, Tenant shall have the right to install such cabling in
the Premises as deemed necessary or desirable by Tenant, subject to the terms of this subsection
(f}. At the time Tenant desires to install any such cabling, Tenant shall submit (i) a general plan
or layout to Landlord for Landlord’s review and (ii) an express written notice that Landlord must
notify Tenant within twenty (20) days if Landlord will require Tenant to remove such cabling prior
to the Expiration Date. If, within fifteen (15) days following receipt of such plan and notice,
Landlord notifies Tenant in writing that Landlord will require Tenant to remove such cabling prior
to the Expiration Date, then Tenant shall remove such cabling identified by Landlord prior to the
Expiration Date or earlier termination of the Lease. If Tenant fails to provide such plan and
notice to Landlord prior to installation of the cabling, then Tenant shall be required to remove
such cabling prior to the Expiration Date or earlier termination of the Lease, unless otherwise
notified in writing by Landlord, If Tenant provided said plan and notice, but Landlord does not
notify Tenant, then upon the Expiration Date or earlier termination of this Lease, such items shall
be deemed to be part of the realty and the property of Landlord (and shall not be removed or
disabled by Tenant). If Landlord so notifies Tenant to remove any or all of such items, and Tenant
fails to remove the same upon the expiration or earlier termination of this Lease, then Landlord
may have the same removed at Tenant’s expense. Any such work shall be conducted in a manner
consistent with subsection (d) above.




12. FIRE OR OTHER CASUALTY; CASUALTY INSURANCE.



(a) Substantial Destruction of the Building. If the Development Building is
substantially destroyed (which, as used herein, means destruction or damage to at least
seventy-five percent (75%) of the Development Building) by fire or other casualty, either party
hereto may, at its option, terminate this Lease by giving written notice thereof to the other party
within sixty days of such casualty. In such event, Base Rent and Additional Rent shall be
apportioned to and shall cease as of the date of such casualty. If neither party exercises this
option, then the Premises shall be reconstructed and restored, at Landlord’s expense, to
substantially the same condition as they were prior to the casualty.



(b) Substantial Destruction of the Premises. If the Premises are substantially
destroyed (which, as used herein, means destruction or damage to at least 75% of the Premises), or
rendered wholly untenantable for the purpose for which they were leased, by fire or other casualty
whether or not the Development Building is substantially destroyed as provided above, then the
parties hereto shall have the following options:



(1) Tenant may elect to terminate the Lease or to require that the Premises be reconstructed
and restored, at Landlord’s expense, to substantially the same condition as the Premises existed
prior to the casualty, except for repair or replacement of Tenant’s



 


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Improvements, Tenant’s personal property, equipment and trade fixtures, which shall remain Tenant’s
responsibility. In the event that Tenant requires that the Premises be reconstructed and restored,
Landlord shall not be required to expend for reconstruction and restoration any amount in excess of
insurance proceeds received by Landlord as a result of such casualty loss. This option shall be
exercised by Tenant giving written notice to Landlord within sixty days after the date of the
casualty, and this Lease shall continue in full force and effect for the balance of the Term upon
the same terms, conditions and covenants as are contained herein. Base Rent and Additional Rent
shall be equitably abated as of the date of such casualty.



(2) If the casualty occurs during the last twelve months of the Term, either party shall have
the right and option to terminate its Lease as of the date of the casualty, which option shall be
exercised by written notice to be given by either party to the other party within thirty days
therefrom. If this option is exercised, rent shall be apportioned to and shall cease as of the date
of the casualty.



(c) Partial Destruction of the Premises.



(1) If the Premises are rendered partially untenantable for the purpose for which they were
leased (which, as used herein, means the Premises are less than substantially destroyed, as defined
in Section 12(b) above) by fire or other casualty, then such damaged part of the Premises shall be
reconstructed and restored at Landlord’s expense to substantially the same condition as it was
prior to the casualty, except for repair or replacement of Tenant’s Improvements, Tenant’s personal
property, equipment and trade fixtures, which shall remain Tenant’s responsibility Base Rent and
Additional Rent shall be equitably abated as of the date of such casualty in proportion to the
ratio between the number of square feet which is untenantable compared to the aggregate number of
square feet comprising the Premises. Landlord shall use reasonable diligence in completing such
reconstruction repairs, but in the event Landlord fails to complete the same within 120 days from
the date of the casualty, Tenant may, at its option, terminate this Lease upon giving Landlord
written notice to that effect, whereupon both parties shall be released from all further
obligations and liability hereunder.



(2) If the casualty occurs during the last six months of the Term, either party shall have the
right and option to terminate its Lease as of the date of the casualty, which option shall be
exercised by written notice to be given by either party to the other party within thirty days
therefrom. If this option is exercised, rent shall be apportioned to and shall cease as of the date
of the casualty.



(d) Casualty Insurance.



(1) Landlord shall at all times during the Term, carry, as a Project Expense, a “Special Forms
and Extended Perils” property insurance policy insuring the Project, including the Development
Building, against loss or damage by fire or other casualty (namely, the perils against which
insurance is afforded by the standard fire insurance policy and extended coverage endorsement) for
the full replacement cost thereof; provided, however, that Landlord shall not be obligated to
insure against any loss or damage to personal property (including, but not limited to, any
furniture, machinery, equipment, goods or supplies) of Tenant or which Tenant may have on



 


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the Premises or any trade fixtures installed by or paid for by Tenant on the Premises or any
additional improvements which Tenant may have constructed within the Premises. Such policy shall
provide coverage against physical loss, damage and theft and the perils of fire and extended
coverage, including, without limitation, theft, vandalism, malicious mischief, explosion, collapse
and underground hazards, sprinkler leakage, water damage, storms, subsidence, sinkhole collapse,
landslide, and debris removal. Such property insurance must be from insurance companies rated at
least A:X in the latest Best’s Insurance Guide. Upon request, Landlord shall furnish to Tenant a
certificate evidencing the existence of such insurance coverage and endorsements to such coverage.
If changes to Tenant’s use or operation on the Premises, or any alterations or improvements made by
Tenant pursuant to the provisions of Section 12(c) hereof result in an increase in the premiums
charged during the Term on the casualty insurance carried by Landlord on the Project, then the cost
of such increase in insurance premiums shall be borne by Tenant, who shall reimburse Landlord for
the same as additional rent after being billed. If changes to Landlord’s use or operation within
Project, or any alterations or improvements made by Landlord (and not on Tenant’s behalf) result in
an increase in the premiums charged during the Term on the casualty insurance carried by Landlord
on the Project, then the cost of such increase in insurance premiums shall be borne by Landlord,
and said increase shall be excluded from Project Expenses for purposes of this Lease.



(2) Tenant shall at all times during the Term, carry, at its own expense, property insurance
covering its personal property and trade fixtures installed by or paid for by Tenant or any
additional improvements which Tenant may construct on the Premises, which coverage shall be no less
than replacement value. Tenant shall furnish Landlord with a certificate evidencing that such
coverages are in full force and effect. Such coverages shall not be canceled or amended on less
than thirty days notice to Landlord.



(e) Waiver of Subrogation. This Section 12(e) shall govern any contrary or
inconsistent provisions of this Lease. Landlord and Tenant hereby release, and shall cause their
respective insurance companies to waive all rights of recovery against, each other and each other’s
employees, agents, customers and invitees from any and all liability for any loss, damage or injury
to property occurring in, on or about or to the Premises or Project, improvements to the Project or
personal property within the Project, by reason of fire or other casualty which are covered by
applicable standard fire and extended coverage insurance policies.




13. GENERAL PUBLIC LIABILITY, INDEMNIFICATION AND INSURANCE.



(a) At all times during the Term, Landlord and Tenant shall each carry, at its own expense,
for the protection of the other party, one or more policies of general liability insurance with one
or more insurance companies rated A:X or better in Best’s Insurance Guide, providing minimum
coverages of $2,000,000 combined single limit for bodily injury and property damage per occurrence
and location with $5,000,000 aggregate coverage. Such general liability insurance shall include a
separation of insureds/cross liability endorsement, broad form property damage coverage and afford
coverage for “personal injury” liability. At all times during the Term, Landlord and Tenant shall
each carry comprehensive automobile liability insurance covering all owned, non-owned and hired
automobiles, with limits of not less than $1,000,000 in primary coverage per accident for both
bodily injury and property damage liability. All such insurance



 


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policy or policies shall name the other party as additional insureds and shall provide that they
may not be canceled or materially changed on less than thirty (30) days prior written notice to the
other party. Each party shall furnish the other with certificates of insurance evidencing such
coverages prior to the Commencement Date and prior to the date of renewal. Should any party fail to
carry such insurance and/or furnish to the other party within ten (10) days following such other
party’s request a certificate of insurance evidencing such coverage, such other party shall have
the right to obtain such insurance and collect the cost thereof from the non-performing party, in
which event the non-performing party shall reimburse such other party for the cost of such coverage
within thirty (30) days following such other party’s written demand. Each party shall also provide
the other with certificates evidencing workers’ compensation insurance coverage as required by law
and employer’s liability coverage for injury, disease and death, with coverage limits of not less
than $1,000,000 per accident, The insurance coverages required hereby shall be deemed to be
additional obligations of each party and shall not be a discharge or limitation of such parry’s
indemnity obligations contained herein below.



(b) Except for any loss, damage, or injury to person or property caused by the negligence or
intentional misconduct of Landlord or its agents, employees, contractors, invitees or guests,
Tenant shall be responsible for, shall insure against, and shall indemnify Landlord and hold it
harmless from, any and all liability for any loss, damage or injury to person or property, arising
out of use, occupancy or operations of Tenant and occurring in, on or about the Project, and Tenant
hereby releases Landlord from any and all liability for the same. Tenant’s obligation to indemnify
Landlord hereunder shall include the duty to defend against any claims asserted by reason of such
loss, damage or injury and to pay any judgments, settlements, costs, fees and expenses, including
attorneys’ fees, incurred in connection therewith. Landlord shall give prompt written notice to
Tenant of the occurrence of any loss, damage, or injury to which Tenant’s duty to indemnify and
hold harmless the Landlord may pertain and Tenant shall have the right to defend any claim asserted
by any party with respect to such loss, damage, or injury through counsel of Tenant’s selection.



(c) Except for any loss, damage, or injury to person or property caused by the negligence or
intentional misconduct of Tenant or its agents, employees, contractors, invitees or guests,
Landlord shall be responsible for, shall insure against, and shall indemnify Tenant and hold it
harmless from, any and all liability for any loss, damage or injury to person or property occurring
in, on or about the common areas and facilities for the Project and the use, occupancy or
operations of Landlord and occurring in, on or about any portion of the Project, and Landlord
hereby releases Tenant from any and all liability for the same. Landlord’s obligation to indemnify
Tenant shall include the duty to defend against any claims asserted by reason of such loss, damage
or injury and to pay any judgments, settlements, costs, fees and expenses, including attorneys’
fees, incurred in connection therewith. Tenant shall give prompt written notice to Landlord of the
occurrence of any loss, damage, or injury to which Landlord’s duty to indemnify and hold harmless
the Tenant may pertain and Landlord shall have the right to defend any claim
asserted by any party with respect to such loss, damage, or injury through counsel of Landlord’s
selection.


 


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14. EMINENT DOMAIN. If the whole or any part of the Premises or Project (including parking
areas) shall be taken for public or quasipublic use by a governmental
authority under the power of eminent domain or shall be conveyed to a governmental authority in
lieu of such taking, and if such taking or conveyance shall cause the remaining part of the
Premises to be untenantable and inadequate for use by Tenant for the purpose for which they were
leased, then Tenant may, at its option, terminate this Lease as of the date Tenant is required to
surrender possession of the Premises as a result of such taking. If a part of the Premises or
Project shall be taken or conveyed but the remaining part is tenantable and adequate for Tenant’s
use, then this Lease shall be terminated as to the part taken or conveyed as of the date Tenant
surrenders possession; Landlord shall make such repairs, alterations and improvements as may be
necessary to render the part not taken or conveyed tenantable; and the rent shall be reduced in
proportion to the part of the Premises so taken or conveyed. Tenant shall not have the right to
assert a claim against the governmental authority exercising its power of eminent domain based upon
the value of Tenant’s leasehold interest. All compensation awarded for such taking or conveyance
shall be the property of Landlord without any deduction therefrom for any present or future estate
of Tenant and Tenant hereby assigns to Landlord all its right, title and interest in and to any
such award. However, Tenant shall have the right to recover from the governmental authority, but
not from Landlord, such compensation as may be awarded to Tenant on account of the interruption of
Tenant’s business, moving and relocation expenses and depreciation to and removal of Tenant’s trade
fixtures and personal property.



15. LIENS. If, because of any act or omission of Tenant or anyone claiming by, through, or
under Tenant (other than Landlord), any mechanic’s lien or other lien shall be filed against the
Premises or the Project for work performed by or on behalf of Tenant (whether or not such lien is
valid or enforceable as such), Tenant shall, at its own expense, cause the same to be discharged of
record within a reasonable time, not to exceed sixty days after the date of filing thereof, and
shall also defend and indemnify Landlord and hold it harmless from any and all claims, losses,
damages, judgments, settlements, cost and expenses, including attorneys’ fees, resulting therefrom
or by reason thereof. If such lien is not discharged of record within sixty days after the date of
filing thereof, Landlord, at its sole option, may take all action necessary to release and remove
such lien (without any duty to investigate the validity thereof) and Tenant shall promptly upon
notice reimburse Landlord for all sums, costs and expenses (including reasonable attorneys’ fees
and Landlord’s Costs) incurred by Landlord in connection with such
lien.




16. RENTAL, PERSONAL PROPERTY AND OTHER TAXES.



(a) Tenant shall pay before delinquency any and all taxes, assessments, fees or charges
(hereinafter referred to as “taxes”), including any sales, gross income, rental, business
occupation or other taxes, levied or imposed upon Tenant’s business operation in the Premises and
any personal property or similar taxes levied or imposed upon Tenant’s trade fixtures, leasehold
improvements or personal property located within the Premises. In the event any such taxes are
charged to the account of, or are levied or imposed upon the property of Landlord, Tenant shall
reimburse Landlord for the same as additional rent. Notwithstanding the foregoing, Tenant shall
have the right to contest in good faith any such tax and to defer payment, if required, until after
Tenant’s liability therefor is finally determined, provided Tenant furnishes Landlord with
reasonably acceptable security from which may be satisfied any judgment arising from such
taxes.


 


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(b) If any tenant improvements made by Tenant during the Term or any of Tenant’s trade
fixtures or equipment located in, on or about the Premises, regardless of whether they are
installed or paid for by Landlord or Tenant and whether or not they are affixed to and become a
part of the realty and the property of Landlord, are assessed for real property tax purposes at a
valuation higher than that at which other such property in other space in the Project is assessed,
then Tenant shall reimburse Landlord as additional rent for the amount of real property taxes shown
on the appropriate county official’s records as having been levied upon the Project or other
property of Landlord by reason of such excess assessed valuation.



17. ASSIGNMENT AND SUBLETTING. Tenant may not assign or otherwise transfer its interest in
this Lease or sublet the Premises or any part thereof without the prior written consent of
Landlord, which Landlord may refuse in its sole discretion. Tenant shall notify Landlord thirty
days in advance of its intent to transfer, assign or sublet all or any portion of the Premises and
shall, at the time Tenant requests Landlord’s approval, provide Landlord with financial information
on the proposed assignee or subtenant. In any event, Tenant shall reimburse Landlord for fees and
expenses incurred by Landlord (including expert and attorney fees) in reviewing any proposed
assignment or subletting. In the event of any such assignment or subletting, Tenant shall
nevertheless at all times remain fully responsible and liable for the payment of rent and the
performance and observance of all of Tenant’s other obligations under the terms, conditions and
covenants of this Lease. No assignment or subletting of the Premises or any part thereof shall be
binding upon Landlord unless such assignee or subtenant delivers to Landlord an instrument (in
recordable form, if requested) containing an agreement of assumption of all of Tenant’s obligations
under this Lease. Upon the occurrence of an event of default after the expiration of any applicable
notice and cure period herein, if all or any part of the Premises are then assigned or sublet,
Landlord, in addition to any other remedies provided by this Lease or by law, may, at its option,
collect directly from the assignee or subtenant all rent becoming due to Landlord by reason of the
assignment or subletting. Any collection by Landlord from the assignee or subtenant shall not be
construed to constitute a novation or release of Tenant from the further performance of its
obligations under this Lease. Any rents received by Tenant from the assignment or subletting of the
Premises which exceed rents payable by Tenant hereunder shall be immediately paid to Landlord as
additional compensation. Landlord shall, at its option, have the right to recapture all or any part
of the Premises Tenant proposes to assign or sublet upon notice from Tenant of its intent to assign
or such sublet part of the Premises. Notwithstanding the preceding to the contrary, Tenant shall
have the right, without the prior written consent of Landlord. to transfer or assign the Lease or
sublet the Premises to any entity controlling, controlled by or under the common control of Tenant
or in connection with a sale of stock, merger or sale of substantially all of the assets of Tenant.



18. SUBORDINATION OF LEASE TO MORTGAGES. This Lease shall be subject and subordinate to any
mortgage or similar encumbrances, including ground or underlying leases, whether presently existing
or hereafter voluntarily placed upon the Project or the Premises, including any renewals,
extensions or modifications thereof, provided that, with respect to any such encumbrances hereafter
placed on the Project or Premises, the holder of such encumbrance enters into a non-disturbance and
attornment agreement with Tenant in a



 


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customary form, including, among other provisions, an agreement that Tenant’s possession of the
Premises will not be disturbed in the event of mortgage foreclosure or other similar exercise of
remedies, so long as Tenant is not in default hereunder after the expiration of any applicable
notice and cure periods. Tenant shall, at Landlord’s request, execute and deliver within 10 days to
Landlord, without cost, a subordination, non-disturbance and attornment agreement for purposes of
confirming the subordination of this Lease.




19. DEFAULTS AND REMEDIES.



(a) Default by Tenant. The occurrence of any one or more of the following events shall
be a default and breach of this Lease by Tenant:



(1) Tenant shall fail to pay any installment of Base Rent within ten days after it is due or
shall fail to pay any Project Expenses, Building Expenses, Taxes or additional rent within ten days
after written notice that the same is past due;



(2) Tenant shall fail to perform or observe any other term, condition, covenant or obligation
required to be performed or observed by it under this Lease for a period of thirty days after
written notice thereof from Landlord; provided, however, that if the term, condition, covenant or
obligation to be performed by Tenant is of such nature that the same cannot reasonably be performed
within such thirty day period, such default shall be deemed to have been cured if Tenant commences
such performance within said thirty day period and thereafter diligently completes the same;



(3) Tenant shall abandon the Premises; or



(4) Tenant declares bankruptcy, is declared bankrupt, makes an assignment for the benefit of
creditors; or substantially all of Tenant’s assets in, on or about the Premises or Tenant’s
interest in this Lease are attached or levied upon under execution (and Tenant does not discharge
the same within sixty days thereafter).



(b) Remedies of Landlord. Upon the occurrence of any event of default set forth in
Section 20(a) hereof, Landlord shall have the following rights and remedies, in addition to those
allowed by law, any one or more of which may be exercised without further notice to or demand upon
Tenant:



(1) Landlord may reenter the Premises and cure any default of Tenant, in which event Tenant
shall reimburse Landlord as additional rent for any costs and expenses which Landlord may incur to
cure such default.



(2) Landlord may terminate this Lease as of the date of such default, in which event: (A)
neither Tenant nor any person claiming under or through Tenant shall thereafter be entitled to
possession of the Premises, and Tenant shall immediately thereafter surrender the Premises to
Landlord; (B) Landlord may reenter the Premises and dispossess Tenant or any other occupants of the
Premises by summary proceedings, ejectment or otherwise, and may remove their effects, without
prejudice to any other remedy which Landlord may have for possession or



 


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arrearages in rent; and (C) notwithstanding the termination of this Lease, Landlord may relet all
or any part of the Premises for a term different from that which would otherwise have constituted
the balance of the Term and for rent and on terms and conditions different from those contained
herein, whereupon Tenant shall be obligated to pay to Landlord as liquidated damages the difference
between the rent provided for herein and that provided for in any lease covering a subsequent
reletting of the Premises, for the period which would otherwise have constituted the balance of the
Term, together with all of Landlord’s costs and expenses for preparing the Premises, for reletting,
including all repairs, tenant finish improvements, marketing costs, broker’s and attorney’s fees,
and all loss or damage which Landlord may sustain by reason of such termination, reentry and
reletting, it being expressly understood and agreed that the liabilities and remedies specified
above shall survive the termination of this Lease.



(3) Landlord may terminate Tenant’s right of possession of the Premises and may repossess the
Premises by unlawful detainer action, by taking peaceful possession or otherwise, without
terminating this Lease, in which event Landlord may, but shall be under no obligation to, relet the
same for the account of Tenant, for such rent and upon such terms as shall be satisfactory to
Landlord. For the purpose of such reletting, Landlord is authorized to decorate, repair, remodel or
alter the Premises. If Landlord fails to so relet the Premises, Tenant shall pay to Landlord as
damages a sum equal to the rent which would have been due under this Lease for the balance of the
Term or exercised renewal period as such rent shall become due and payable hereunder from time to
time during the Tenn. If the Premises are relet and a sufficient sum shall not be realized from
such reletting after paying all of the costs and expenses of all decoration, repairs, remodeling,
alterations and additions and the expenses of such reletting and of the collection of the rent
accruing therefrom to satisfy the rent provided for in this Lease, Tenant shall satisfy and pay the
same upon demand therefor from time to time. Tenant shall not be entitled to any rents received by
Landlord in excess of the rent provided for in this Lease.



(4) Landlord may sue for injunctive relief or to recover damages for any loss resulting from
the breach.



Any agreement for an extension of the Term or any additional period thereafter shall not
thereby prevent Landlord from terminating this Lease for any reason specified in this Lease. If any
such right of termination is exercised by Landlord during the Term or any extension thereof,
Tenant’s right to any further extension shall thereby be automatically canceled. Any such right
of termination of Landlord contained herein shall continue during the Term and any subsequent
extension hereof.



(c) Default by Landlord and Remedies of Tenant. It shall be a default and breach of
this Lease by Landlord if it shall fail to perform or observe any tern, condition, covenant or
obligation required to be performed or observed by it under this Lease for a period of thirty days
after written notice thereof from Tenant; provided, however, that if the term, condition, covenant
or obligation to be performed by Landlord is of such nature that the same cannot reasonably be
performed within such thirty (30) day period, such default shall be deemed to have been cured if
Landlord commences such performance within said thirty day period and thereafter diligently
completes the same. If the Landlord fails to perform its maintenance duties under this Lease and
more than thirty days have past after written notice by the Tenant of the requested maintenance
or repair, the Tenant shall make such repairs or maintenance and shall be entitled to reduce the
rent paid to the Landlord in an amount equal to the costs of such maintenance or repair.


 


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(d) NonWaiver of Defaults. The failure or delay by either party hereto to enforce or
exercise at any time any of the rights or remedies or other provisions of this Lease shall not be
construed to be a waiver thereof, nor affect the validity of any part of this Lease or the right of
either party thereafter to enforce each and every such right or remedy or other provisions. No
waiver of any default and breach of this Lease shall be held to be a waiver of any other default of
breach. The receipt of rent by Landlord at a time after rent is due under this Lease shall not be
construed as a waiver of such default. The receipt by Landlord of less than the full rent due shall
not be construed to be other than a payment on account of rent then due, nor shall any statement on
Tenant’s check or any letter accompanying Tenant’s check be deemed an accord and satisfaction, and
Landlord may accept such payment without prejudice to Landlord’s right to recover the balance of
the rent due or to pursue any other remedies provided in this Lease. No act or omission by Landlord
or its employees or agents during the term of this Lease shall be deemed an acceptance of a
surrender of the Premises, and no agreement to accept such a surrender shall be valid unless in
writing and signed by Landlord.



(e) Attorney Fees. If either party defaults in the performance or observance of any of
the terms, conditions, covenants or obligations contained in this Lease, the prevailing party shall
have its attorney fees paid by the defaulting party.




20. BANKRUPTCY OR INSOLVENCY.



(a) If either party shall file a petition in bankruptcy or for a reorganization or arrangement
or other relief under the United States Bankruptcy Code or any similar statute, or if any such
proceeding shall be filed against either party and is not dismissed or vacated within sixty days
after its filing, or if a court having jurisdiction shall issue an order or decree appointing a
receiver, custodian or liquidator for a substantial part of the property of either party which
decree or order remains in force undischarged and unstayed for a period of sixty days, or if either
party shall make an assignment for the benefit of creditors or shall admit in writing its inability
to pay its debts as they become due, the other party may terminate this Lease upon five days
written notice.



(b) Except as otherwise expressly provided in this Lease, neither party shall be required to
accept performance under this Lease from any person, including, without limitation, owner or
manager, as the case may be, should it become a debtor in possession under the United States
Bankruptcy Code, or any trustee of either appointed under the United States Bankruptcy Code and any
assignee of such party or trustee, other than the other party.



21. ACCESS TO THE PREMISES. Landlord, its employees and agents and any mortgagee of the
Project shall have the right to enter any part of the Premises following at least 24 hours’
written notice (except in the event of an emergency, in which case only such notice as is
reasonably possible shall be required) for the purposes of examining or inspecting the same,
showing the same to prospective purchasers, mortgagees or tenants (during the last six months of
the Term) and for making such repairs, alterations or improvements to the Premises or the



 


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Project as Landlord may deem necessary or desirable. Notwithstanding anything to the contrary
herein contained, Landlord agrees that it shall not unreasonably interfere with the use of the
Premises by Tenant and shall use diligent and good faith efforts to preserve all confidentiality of
Tenant. Tenant shall have the right to require that any Landlord or any of its representatives be
accompanied by a representative of Tenant during any such entry. If (i) Landlord is unable to
timely gain access to the Premises due to Tenant’s security or other reasons within Tenant’s
control, and (ii) Landlord incurs loss or damage as a result thereof (e.g., damage caused by a
ruptured pipe), then Tenant shall be obligated to reimburse Landlord within ten (10) days after
demand for any such loss or damage to the extent insurance proceeds are not recovered by Landlord
for the same.



22. SURRENDER OF PREMISES. Upon the expiration or earlier termination of this Lease, Tenant
shall surrender the Premises to Landlord, together with all keys, access cards, alterations,
improvements, and other property as provided elsewhere herein, in broom clean condition and in good
order, condition and repair, except for ordinary wear and tear, damage created by casualty loss and
damage which Tenant is not obligated to repair. If Tenant fails to so surrender the Premises to
Landlord, Landlord may restore the Premises to such condition at Tenant’s expense, which shall be
payable upon demand. Subject to the provisions of Section 12(e) hereof, upon such expiration or
termination Tenant’s trade fixtures, furniture and equipment shall remain Tenant’s property, and
Tenant shall have the right to remove the same prior to the expiration or earlier termination of
this Lease. Tenant shall promptly repair any damage caused by any such removal. Any of Tenant’s
trade fixtures, furniture or equipment not so removed shall be considered abandoned and may be
retained by Landlord or be destroyed or disposed of at Tenant’s expense.



23. HOLDING OVER. If Tenant remains in possession of the Premises without the written consent
of Landlord after the expiration or earlier termination of this Lease, Tenant shall be deemed to
hold the Premises as a tenant at will subject to all of the terms, conditions, covenants and
provisions of this Lease (which shall be applicable during the holdover period), except that the
Base Rent shall be increased to 125% of the last current Base Rent. Tenant shall vacate and
surrender the Premises to Landlord upon Tenant’s receipt of notice from Landlord to vacate. No
holding over by Tenant, whether with or without the written consent of Landlord, shall operate to
extend this Lease except as otherwise expressly provided herein.



24. QUIET ENJOYMENT. If and so long as Tenant pays the prescribed rent and performs or
observes all of the terms, conditions, covenants and obligations of this Lease required to be
performed or observed by it hereunder, Tenant shall at all times during the term hereof have the
peaceable and quiet enjoyment, possession, occupancy and use of the Premises without any
interference from Landlord or any person or persons claiming the Premises by, through or under
Landlord. The foregoing is subject to the rights of any mortgages, underlying leases or other
matters of record to which this Lease is or may become subject, provided that any such mortgagees
or lessor shall be required to provide Tenant with a nondisturbance agreement allowing Tenant to
remain in the Premises under the terms of this Lease in the event of a default under the mortgage
by Landlord.



25. NOTICE AND PLACE OF PAYMENT.



 


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(a) All rent and other payments required to be made by Tenant to Landlord shall be delivered
or mailed to Landlord at the address set forth below or any other address Landlord may specify from
time to time by written notice given to Tenant.



(b) All payments required to be made by Landlord to Tenant shall be delivered or mailed to
Tenant at the address set forth in Section 25(c) hereof or at any other address within the United
States as Tenant may specify from time to time by written notice given to Landlord.



(c) Any notice, demand or request required or permitted to be given under this Lease or by law
shall be deemed to have been given if reduced to writing and mailed by Registered or Certified
mail, postage prepaid, to the party who is to receive such notice, demand or request at the address
set forth below or at such other address as Landlord or Tenant may specify from time to time by
written notice. When delivering such notice, demand or request shall be deemed to have been given
as of the date it was so delivered.



	 	 	 	 	 
	 

	 	To Tenant:
	 	Cray Inc.
	 

	 	 	 	P.O. Box 6000
	 

	 	 	 	Chippewa Falls, WI 54729
	 

	 	 	 	Attn: Bill Howard
	 
	 	 	 	 
	 

	 	To Landlord:
	 	Northern Lights Semiconductor Corporation
	 

	 	 	 	[ADDRESS AND CONTACT PERSON]






26. MISCELLANEOUS GENERAL PROVISIONS.



(a) Payments Deemed Rent. Any amounts of money to be paid by Tenant to Landlord
pursuant to the provisions of this Lease, whether or not such payments are denominated
"rent” or “additional rent” and whether or not they are to be periodic or
recurring, shall be deemed rent or additional rent for purposes of this Lease; and any failure to
pay any of same as provided in Section 19(a) hereof shall entitle Landlord to exercise all of the
rights and remedies afforded hereby or by law for the collection and enforcement of Tenant’s
obligation to pay rent. Tenant’s obligation to pay any such rent or additional rent pursuant to the
provisions of this Lease shall survive the expiration or other termination of this Lease and the
surrender of possession of the Premises after any holdover period.



(b) Estoppel Letters. Tenant shall, within ten days following written request from
Landlord, execute, acknowledge and deliver to Landlord or to any lender, purchaser or prospective
lender or purchaser designated by Landlord a written statement in a form provided by Landlord
certifying (i) that this Lease is in full force and effect and unmodified (or, if modified, stating
the nature of such modification), (ii) the date to which rent has been paid, (iii) that there are
not, to Tenant’s knowledge, any uncured defaults (or specifying such defaults if any are claimed),
and (iv) such further matters regarding this Lease and/or the Premises customarily included in
estoppel letters or certificates as may be reasonably requested by Landlord, provided that
disclosure of confidential information by Tenant shall not be required. Any such statement may be
relied upon by any prospective purchaser or mortgagee of all or any part of the Project.


 


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Tenant’s failure to deliver such statement within such period shall be conclusive upon Tenant that
this Lease is in full force and effect and unmodified, and that there are no uncured defaults in
Landlord’s performance hereunder.



(c) Memorandum of Lease. If requested by Landlord or Tenant, a memorandum of lease,
containing the information required by applicable law concerning this Lease shall be prepared,
executed by both parties and filed for record in the office of the county recorder in Chippewa
County, Wisconsin.



(d) Claims for Fees. Each party hereto shall indemnify and hold harmless the other
party for any and all liability incurred in connection with the negotiation or
execution of this Lease for any real estate broker’s commission or finder’s fee which
has been earned by a real estate broker or other person on such party’s behalf. Each party
represents to the other that each party has retained corporate real estate advisors and that each
party shall be responsible for the fees of their own advisors.



(e) Applicable Law. This Lease and all matters pertinent thereto shall be construed
and enforced in accordance with the laws of the State of Wisconsin.



(f) Entire Agreement. This Lease, including all Exhibits, Riders and Addenda,
constitutes the entire agreement between the parties hereto regarding the subject matter
hereof and may not be modified except by an instrument in writing executed by the parties hereto.



(g) Binding Effect. This Lease and the respective rights and obligations of the
parties hereto shall inure to the benefit of and be binding upon the successors and assigns of the
parties hereto as well as the parties themselves; provided, however, that Landlord, its successors
and assigns shall be obligated to perform Landlord’s covenants under this Lease only during and in
respect of their successive periods as Landlord during the team of this Lease.



(h) Severability. If any provision of this Lease shall be held to be invalid, void or
unenforceable, the remaining provisions hereof shall not be affected or impaired, and such
remaining provisions shall remain in full force and effect.



(i) No Partnership. Landlord shall not, by virtue of the execution of this Lease or
the leasing of the Premises to Tenant, become or be deemed a partner of Tenant in the conduct of
Tenant’s business on the Premises or otherwise.



(j) Headings, Gender, etc. As used in this Lease, the word “person” shall mean and
include, where appropriate, an individual, corporation, partnership or other entity; the plural
shall be substituted for the singular, and the singular for the plural, where appropriate; and
words of any gender shall include any other gender. The topical headings of the several paragraphs
of this Lease are inserted only as a matter of convenience and reference, and do not affect,
define, limit or describe the scope or intent of this Lease.



(k) No Right to Change Buildings Address. Landlord shall have no right to change the
street address of the Development Building without the prior written consent of Tenant.
Landlord reserves the right to change the name of the Project.


 


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(l) Execution by Landlord. Submission of this instrument to Tenant, or Tenant’s agents
or attorneys, for examination or signature does not constitute or imply an offer to lease,
reservation of space, or option to lease, and this Lease shall have no binding legal effect until
execution hereof by both Landlord and Tenant.




(m) Time of Essence. Time is of the essence of this Lease and each of its provisions.



(n) Drafting Party. The parties represent that they have been represented by legal
counsel in the negotiation and preparation of this Lease and that their respective attorneys have
substantially participated in the drafting of this Lease. The parties agree that the rule of
construction regarding ambiguities being construed against the drafting parry shall not apply.
Changes from any prior drafts of this Lease shall not be used in interpreting any of the provisions
of this Lease.



(o) Counterparts; Facsimile Signatures. This Lease may be executed in one or more
counterparts, each of which shall be deemed an original and together which shall constitute one
document. Facsimile signatures on this Lease shall be deemed valid and acceptable;
however, any parry executing this Lease by facsimile signature shall immediately deliver not less
than three hard copy originals to the other party.



(p) Prior Leases. Upon the execution and delivery of this Lease, the previous Leases
between Tenant and Union Semiconductor Technology Corporation affecting the property hereby leased
are cancelled and no party shall have any further rights or obligations thereunder.




27. HAZARDOUS SUBSTANCES.



(a) Tenant covenants that Tenant, with respect to its use and operation on the Premises and
within the Project during the Term, will remain in compliance with all applicable federal, state
and local statutes, ordinances, regulations, rules and other laws presently in force or hereafter
enacted relating to public health, safety, protection of the environment, environmental quality,
contamination and clean-up of hazardous materials, including. without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, the Resource,
Conservation and Recovery Act of 1976, as amended, and state superfund and environmental clean-up
statutes and all rules and regulations presently or hereafter enacted (“environmental laws”). As
used above, the term “hazardous materials” shall mean and include all hazardous and toxic
substances, waste or materials, any pollutant or contaminant, including, without limitation,
asbestos, PCBs, petroleum and petroleum-based products and raw materials that are included under or
regulated by any environmental laws. Tenant shall not release, generate, manufacture, store, treat,
transport or dispose of any hazardous material on or about the Project or any part thereof;
however, Tenant may store, transport and use such hazardous materials as historically used by
Tenant in the ordinary course of the operation of its business in compliance with all applicable
environmental laws. Tenant will immediately notify Landlord and provide copies upon receipt of all
written complaints, claims, citations, demands, inquiries, reports or notices relating to the
condition of the Premises or compliance with environmental



 


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laws. Tenant shall maintain all required records and file any necessary documents with the
appropriate agencies relating to the use, storage or transportation of any hazardous materials on,
to, from or about the Premises. Tenant shall indemnify, defend (with counsel reasonably acceptable
to Landlord and at Tenant’s sole cost). and hold Landlord harmless from and against all losses,
liabilities, obligations, penalties, claims, demands, judgments, costs and other damages, that are
suffered or incurred by Landlord and arising from the release or other deposit during the Term of
any hazardous material by Tenant, its employees, agents or contractors, on, in, under or affecting
all or any portion of the Premises or the Project, or any breach of any obligation or agreement of
Tenant in this paragraph. This indemnification obligation shall survive the termination of this
Lease.



(b) Except as provided in subparagraph (a) above, Landlord covenants that Landlord, with
respect to its use and operation on the Project during the Term, will remain in compliance with all
applicable environmental laws. Landlord shall not release, generate, manufacture, store, treat,
transport or dispose of any hazardous material on or about the Project or any part thereof;
however, Landlord may store, transport and use such hazardous materials used by Landlord in the
ordinary course of the operation of its business in compliance with all applicable environmental
laws. Landlord shall indemnify, defend (with counsel reasonably acceptable to Tenant and at
Landlord’s sole cost), and hold Tenant harmless from and against all losses, liabilities,
obligations, penalties, claims, demands, judgments, costs and other damages, that are suffered or
incurred by Tenant and caused by the release or other deposit of any hazardous material by
Landlord, its employees, agents (not including Tenant under the Management Services Agreement) or
contractors, on, in, under or affecting all or any portion of the Project. This indemnification
obligation shall survive the termination of this Lease.



IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day and year first
above written.



LANDLORD:

NORTHERN LIGHTS SEMICONDUCTOR CORPORATION




By: /s/ James Lei

Its: President/CEO




TENANT:

CRAY INC.




By: /s/David E. Frasch

Its: Chief Technology Counsel




Exhibits

A — Site Plan

B — Floor Plan

C — Conference Center Site Plan

D — Rules and Regulations





 


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