[CORBALLY, GARTLAND AND RAPPLEYEA LETTERHEAD]
August 4, 1995
Mr. John Root
Novellus Systems Inc.
81 Vista Montana
San Jose, CA 95134
RE: Lease - 25 Corporate Park Drive, Route 52, Town of East Fishkill, New
York
East Fishkill Corporate Park Investments with Novellus Systems Inc.
Dear Mr. Root:
Enclosed find two copies of the lease in the above matter. Please sign
both copies and return them to me.
Very truly yours,
CORBALLY, GARTLAND & RAPPLEYEA
/S/ Daniel F. Curtin
Daniel F. Curtin
DFC:sb
encs.
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LEASE
dated August 14, 1995
---
between
EAST FISHKILL CORPORATE PARK INVESTMENTS
as Landlord
and
NOVELLUS SYSTEMS INC.
as Tenant
Affecting premises commonly known as 25 Corporate Park Drive, Route 52, in the
Town of East Fishkill, New York.
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CORBALLY.GARTLAND AND RAPPLEYEA - ATTORNEYS AND COUNSELORS AT LAW
35 MARKET STREET - POUGHKEEPSIE, NEW YORK 12601 - (914)454-1110
LEASE
LEASE, dated August __, 1995, between EAST FISHKILL CORPORATE PARK
INVESTMENTS., a partnership, having an address at 1400 Route 52 Suite 3,
Hopewell Junction, New York 12533 ("Landlord"), and NOVELLUS SYSTEMS INC.,
having an address of 81 Vista Montana, San Jose, CA 95134, ("Tenant").
1. THE DEMISED PREMISES AND LEASE TERM
In consideration of the Rent hereinafter reserved and the terms,
covenants and conditions set forth in this Lease to be observed and performed by
Tenant, Landlord hereby demises and leases to Tenant, and Tenant hereby rents
and takes from Landlord, the following property (collectively hereinafter
referred to as the "Demised Premises"): Approximately 3016 square feet of
the building located on 25 Corporate Park Drive, Route 52, Town of East
Fishkill, New York as shown on the annexed diagram, together with parking in
common with other users of the building. TO HAVE AND TO HOLD the Demised
Premises unto Tenant, and the permitted successors and assigns of Tenant, upon
and subject to all of the terms, covenants and conditions herein contained, for
a term (the "Lease Term") of 38 Mos. commencing on or about November 1, 1995
and expiring on Dec. 30, 1998, unless the Lease Term shall sooner terminate
pursuant to any of the conditional limitations or other provisions of this
Lease. The commencement date shall be within forty-five (45) days of the
delivery of executed Lease by the Tenant to the landlord setting forth their
renovation requirements.
2. RENT
Tenant covenants to pay to Landlord as Fixed Rent during the Lease
Term $36,342.00 per annum.
The Fixed Rent shall be payable in advance in equal monthly
installments of $3,028.50 on the first day of each calendar month. If the Lease
Term does not commence on the first day of a month, the Fixed Rent for the month
in which the Lease Term commences shall be appropriately apportioned. Each date
on which Fixed Rent is payable hereunder is hereinafter referred to as a "Rent
Payment Date".
3. NO COUNTERCLAIM OR ABATEMENT
All Rent shall be absolutely net to Landlord so that this Lease shall
yield to Landlord the full amount of the installments
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CORBALLY, GARTLAND AND RAPPLEYEA - ATTORNEYS AND COUNSELORS AT LAW
35 MARKET STREET - POUGHKEEPSIE, NEW YORK 12601 - (914)454-1110
thereof throughout the Lease Term without deduction. All Rent shall be paid to
Landlord without notice, demand, counterclaim, setoff, deduction or defense, and
nothing shall suspend, defer, diminish, abate or reduce any Rent, except as
otherwise specifically provided in this Lease.
4. USE OF DEMISED PREMISES
Tenant covenants that the Demised Premises shall be used solely for
office purposes and for no other purposes, unless approved in writing by
Landlord.
Tenant shall not do or permit any act or thing which is contrary to
any Legal Requirements or Insurance Requirements, or which might impair the
value or usefulness of the Demised Premises or any part thereof.
Tenant shall not do or suffer any waste, damage, disfigurement or
injury to the Demised Premises.
5. CONDITION OF DEMISED PREMISES
Prior to the commencement of the Lease Term, Landlord shall perform
the work and make installments in the Demised Premises as set forth in Exhibit A
hereto.
6. MAINTENANCE AND REPAIR
Tenant, at all times during the Lease Term and at Tenant's expense,
shall keep the Demised Premises, and all Improvements now or hereafter located
thereon, in a good and clean order and condition and in such condition as may be
required by all Legal Requirements and Insurance Requirements. Landlord
shall be responsible for maintaining the HVAC, electrical and plumbing systems.
7. ALTERATIONS AND ADDITIONS
Tenant shall not be entitled to make any alterations of or additions
to the Demised Premises without the prior written consent of Landlord in each
instance, which consent will not be unreasonably withheld.
The title to all additions, repairs and replacements to any
Improvements made during the Lease Term and any renewal thereof, forthwith shall
vest in Landlord, and said Improvements, additions, repairs and replacements
shall be and become the sole and absolute property of Landlord, without any
obligation of payment by Landlord therefor.
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CORBALLY, GARTLAND AND RAPPLEYEA - ATTORNEYS AND COUNSELORS AT LAW
35 MARKET STREET - POUGHKEEPSIE, NEW YORK 12601 - (914) 454-1110
8. COMPLIANCE WITH REQUIREMENTS
Tenant, at all times during the Lease Term and at Tenant's expense,
promptly and diligently shall: comply with all Legal Requirements and Insurance
Requirements, whether or not compliance therewith shall require structural
changes in the Improvements or interfere with the use and enjoyment of the
Demised Premises or any part thereof; and procure, maintain and comply with all
permits, licenses, franchises and other authorizations required for any use of
the Demised Premises or any part thereof then being made, including without
limitation all permits, licenses, and franchises which Tenant is required to
obtain for the proper erection, installation, operation or maintenance of the
Improvements or Tenant's Equipment or any part thereof.
9. LIENS
Tenant shall not directly or indirectly create or permit to be created
or to remain, and shall discharge, any mortgage, lien, security interest,
encumbrance or charge on, pledge of or conditional sale or other retention
agreement with respect to the Demised Premises or any part thereof, Tenant's
interest therein, or any Fixed Rent or other Rent payable under this Lease,
other than: the Occupancy Leases; liens for Impositions not yet payable, or
payable without the addition of any fine, penalty, interest or cost for
nonpayment, or being contested as permitted in Article 11 hereof; and the liens
of mechanics, materialmen, suppliers or vendors, or right thereto, incurred in
the ordinary course of business for sums which under the terms of the related
contract are not at the time due, provided that adequate provision for the
payment thereof shall have been made and provisions of the following paragraph
are complied with.
10. UTILITY SERVICES
Landlord shall pay charges for public or private utility
services at any time rendered to or in connection with the entire
Premises or any part thereof; including heat, air conditioning,
electric, trash removal and water and sewer services.
11. INSURANCE
Tenant, at all times during the Lease Term and at Tenant's expense,
shall provide and maintain in full force and effect with insurers approved by
Landlord: (a) public liability protecting Landlord against any and all liability
occasioned by negligence, occurrence, accident or disaster in or about the
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Demised Premises or any part thereof, (b) lessor shall be responsible for its
own fire insurance.
12. INDEMNIFICATION BY TENANT
Tenant shall, except for the wilful acts or omission of lessor,
indemnify and hold Landlord harmless from and against all liabilities,
obligations, claims, damages, fines, penalties, interest, causes of action,
costs and expenses, including attorneys' fees (but excluding any income or
excess profits or franchise taxes of Landlord determined on the basis of general
income or revenue or any interest or penalties in respect thereof), imposed upon
or incurred by or asserted against Landlord or the Demised Premises by reason of
the occurrence or existence of any of the following: occupancy of the Demised
Premises or any interest therein, or receipt of any rent or other sum therefrom;
any accident, injury to or death of persons (including workers) or loss of or
damage to property occurring, or claimed to have occurred, on or about the
Demised Premises or any part thereof, or any Improvements now or hereafter
erected thereon, or the adjoining sidewalks, curbs, vaults or vault spaces, if
any, streets or ways, or appurtenances thereto; any use or condition of the
Demised Premises or any part thereof, or any Improvements now or hereafter erect
thereon, or the adjoining sidewalks, curbs, vaults and vault spaces, if any,
streets or ways, or appurtenances thereto; any failure on the part of Tenant
promptly and fully to comply with or perform any of the terms, covenants or
conditions of this Lease; or performance of any labor or services or the
furnishing of any materials or other property in respect of the Demised Premises
or any part thereof. In the case any suit, action or proceeding is brought
against Landlord or filed against the Demised Premises or any part thereof by
reason of any such occurrence except for the wilful acts or omission of lessor,
Tenant, upon Landlord's request and at Tenant's expense, shall resist and defend
such suit, action or proceeding, or cause the same to be resisted and defended
by counsel designated by Tenant and approved by Landlord. The obligations of
Tenant under this Article 14 shall survive the expiration or termination of the
Lease Term.
13. DAMAGE TO OR DESTRUCTION OF THE DEMISED PREMISES
If there is any material damage to or destruction.of the
Demised Premises or any part thereof, Tenant promptly shall give written notice
thereof to Landlord, generally describing the nature and extent of such damage
or destruction.
Landlord shall have the option of either repairing the premises or
terminating the lease.
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14. TAKING OF THE DEMISED PREMISES
If there is a Taking of the fee of the entire Demised Premises, other
than for a temporary use, this Lease shall terminate as of the date of such
Taking.
15. QUIET ENJOYMENT
Landlord covenants that so long as Tenant is not in default hereunder
in the payment of any Rent or compliance with or the performance of any of the
terms, covenants or conditions of this Lease on Tenant's part to be complied
with or performed, Tenant shall not be hindered or molested by Landlord in
Tenant's enjoyment of the Demised Premises.
16. RIGHT TO CURE TENANT'S DEFAULT
If Tenant fails to make any payment or to comply with or perform any
term, covenant or condition of this Lease to be complied with or performed by
Tenant, Landlord may, but shall be under no obligation to, after thirty days'
notice to Tenant (or upon shorter notice, or without notice, if necessary to
meet an emergency situation or time limitation of a Legal Requirement), make
such payment or perform or cause to be performed such work, labor, services,
acts or things, and take such other steps as Landlord may deem advisable, to
comply with any such term, covenant or condition which is in default.
17. EVENTS OF DEFAULT AND TERMINATION
If any one or more of the following ("Events of Default") shall occur:
(a) if Tenant shall fail to pay any Fixed Rent when as the same becomes
due and payable, and such rent remains unpaid ten days after notice
in writing from Landlord; or
(b) if Tenant shall fail to comply with or perform any other term,
covenant or condition hereof, and such failure shall continue for more
than thirty days after notice thereof from Landlord, and Tenant within
said period, subject to Unavoidable Delays, shall not commence with due
diligence and dispatch the curing of such default, or, having so commenced,
thereafter shall fail or neglect to prosecute or complete with due
diligence and dispatch the curing of such default for reasons other than
Unavoidable Delays; or
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(c) if Tenant shall make a general assignment for the benefit of
creditors, or shall admit in writing Tenant's inability to pay Tenant's
debts as they become due, or shall file a petition in bankruptcy, or shall
be adjudicated a bankrupt or insolvent, or shall file a petition seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, or shall file an answer admitting, or shall fail to contest,
the material allegations of a petition filed against Tenant in any such
proceeding, or shall seek or consent to or acquiesce in the appointment of
any trustee, receiver or liquidator of Tenant or any material part of
Tenant's properties;
then, and in any such Event of Default, regardless of the pendency of any
proceeding which has or might have the effect of preventing Tenant from
complying with the terms, covenants or conditions of this Lease, Landlord, at
any time thereafter may give a written termination notice to Tenant, and on the
date specified in such notice this Lease shall terminate and the Lease Term
shall expire and terminate by limitation, and all rights of Tenant under this
Lease shall cease, unless before such date (i) all arrears of Rent (with
interest at the rate of twelve percent per annum) and all costs and expenses,
including reasonable attorneys' fees, incurred by or on behalf of Landlord
hereunder, shall have been paid by Tenant, and (ii) all other defaults at the
time existing under this Lease shall have been fully remedied to the
satisfaction of Landlord. Tenant shall reimburse Landlord for all costs and
expenses, including reasonable attorneys' fees, incurred by or on behalf of
Landlord occasioned by or in connection with any default by Tenant under this
Lease.
18. RELETTING
At any time or from time to time after the repossession of the Demised
Premises or any part thereof, whether or not the Lease Term shall have been
terminated pursuant to Article 17, Landlord may (but shall be under no
obligation to) relet the Demised Premises or any part thereof for the account of
Tenant, for such term or terms (which may be greater than or less than the
period which would otherwise have constituted the balance of the Lease Term) and
on such conditions (which may include concessions or free rent) and for such
uses as Landlord, in Landlord's absolute discretion, may determine, and may
collect and receive the rents therefrom. Landlord shall not be responsible or
liable for any failure to relet the Demised Premises or any part thereof or for
any failure to collect any rent due upon any such reletting.
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19. ASSIGNMENT OF SUBRENTS
Tenant hereby irrevocably assigns to Landlord all rents due or to
become due from any assignee of Tenant's interest hereunder and any sublessee or
any tenant or occupant of the Demised Premises or any part thereof, together
with the right to collect and receive such rents, provided that, so long as
Tenant is not in default under this Lease, Tenant shall have the right to
collect such rents for Tenant's own use and purposes. Upon any default by
Tenant under this Lease, Landlord shall have absolute title to such rents and
the absolute right to collect the same. Landlord shall apply to the Rent due
under this Lease the net amount (after deducting all costs and expenses incident
to the collection thereof and the operation and maintenance, including repairs,
of the Demised Premises) of any rents so collected and received by Landlord.
20. SECURITY DEPOSIT
Tenant has not deposited with Landlord any security.
21. SURVIVAL OF TENANT'S OBLIGATIONS AND DAMAGES
No expiration or termination of the Lease Term pursuant to this Lease,
by operation of law or otherwise (except as expressly provided herein), and no
repossession of the Demised Premises or any part thereof pursuant to this Lease
or otherwise, shall relieve Tenant of Tenant's obligations or liabilities
hereunder, all of which shall survive such expiration, termination or
repossession.
22. INJUNCTION
Landlord, in addition to all other rights, powers and remedies and
notwithstanding the concurrent pendency of summary or other dispossess
proceedings, at Landlord's option, shall have the right at all times during the
Lease Term to restrain by injunction any violation or attempted violation by
Tenant of any of the terms, covenants or conditions of this Lease, and to
enforce by injunction any of such terms, covenants or conditions.
23. WAIVERS
No failure by Landlord or Tenant to insist upon the strict
performance of and compliance with any term, covenant or condition hereof
or to exercise or enforce any right, power or
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remedy consequent upon a breach thereof, and no submission by Tenant or
acceptance by Landlord of full or partial Rent during the continuance of any
such breach, shall constitute a waiver of any such breach or of any such term,
covenant or condition. No waiver of any breach of any term, covenant or
condition of this Lease shall affect or alter this Lease, which shall continue
in full force and effect, or the respective rights, powers or remedies of
Landlord or Tenant with respect to any other then existing or subsequent breach.
24. LANDLORD'S REMEDIES CUMULATIVE
All of the rights, powers and remedies of Landlord provided for in
this Lease or now or hereafter existing at law or in equity, or by statute or
otherwise, shall be deemed to be separate, distinct, cumulative and concurrent.
25. ASSIGNMENT, SUBLETTING AND MORTGAGES
Tenant expressly covenants that Tenant shall not voluntarily or
involuntarily assign, encumber, mortgage or otherwise transfer this Lease, or
sublet the Demised Premises or any part thereof, or suffer or permit the Demised
Premises or any part thereof to be used or occupied by others, by operation of
law or otherwise, without the prior written consent of Landlord in each
instance, not to be unreasonably withheld. Absent such consent, any act or
instrument purporting to do any of the foregoing shall be null and void.
26. SUBORDINATION AND ATTORNMENT
This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all mortgages which may now or
hereafter affect the Demised Premises, whether or not such mortgages shall also
cover other lands or buildings, to each and every advance made or hereafter to
be made under such mortgages and to all renewals, modifications, replacements,
spreaders, consolidations and extensions of such mortgages, providing mortgagee
agrees not to disturb lessee's right to occupy. In the event of any sale of the
Demised Premises in a foreclosure of any such mortgage or the exercise by the
holder of any such mortgages of any other remedies provided for by law or in
such mortgage, Tenant, upon written request of the holder of the mortgage or the
purchaser at such foreclosure or any person succeeding to the interest of the
holder of the mortgage, shall attorn to such holder, purchaser or successor in
interest, as the case may be, without change in the terms, covenants or
conditions of this Lease. If such a request is made, this Lease shall not be
8
deemed to be terminated by any foreclosure proceedings or other remedies for the
enforcement of the mortgage by such holder, purchaser or successor in interest.
The provisions of this Article 30 shall be self-operative and no further
instrument of subordination and/or attornment shall be required. In
confirmation of such subordination and/or attornment, Tenant promptly shall
execute and deliver at Tenant's expense any instrument that Landlord or the
holder of any such mortgage may reasonably request to evidence such
subordination and/or attornment.
27. ENTRY BY LANDLORD
Landlord and the authorized representatives of Landlord shall have the
right to enter the Demised Premises at all reasonable times for the purpose of
inspecting the same or for the purpose of doing any work permitted to be done by
Landlord under this Lease, and to take all such actions thereon as may be
necessary or appropriate for any other purpose, as long as such entry does not
interfere with lessee's occupancy and business use.
28. CONVEYANCE BY LANDLORD
If the original or any successor Landlord shall convey or otherwise
dispose of the Land and Improvements, Landlord shall thereupon be released from
all obligations and liabilities of Landlord under this Lease (except those
accruing prior to such conveyance or other disposition), and such obligations
and liabilities shall be binding solely on the then owner of the Land and
Improvements.
29. NO MERGER OF TITLE
There shall be no merger of the leasehold estate created by this Lease
with the fee estate in the Demised Premises by reason of the fact that the same
person may own or hold (a) the leasehold estate created by this Lease or any
interest therein, and (b) the fee estate in the Demised Premises or any interest
in such fee estate. No such merger shall occur unless and until all persons
having any interest in the leasehold estate created by this Lease, and in the
fee estate in the Demised Premises, shall join in a written instrument effecting
such merger and shall duly record the same.
30. ACCEPTANCE OF SURRENDER
No modification, termination or surrender of this Lease
or surrender of the Demised Premises or any part thereof or of any
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interest therein by Tenant shall be valid or effective unless agreed to and
accepted in writing by Landlord and no act by any representative or agent of
Landlord, other than such a written agreement and acceptance, shall constitute
an acceptance thereof.
31. END OF LEASE TERM
Upon the expiration or termination of the Lease Term, unless otherwise
agreed between the parties hereto, Tenant shall quit, surrender and deliver to
Landlord the Demised Premises with the Improvements thereon in good order and
condition, ordinary wear and tear excepted, and shall remove all Tenant's
Equipment therefrom.
32. BROKERAGE
Landlord and Tenant each represents and warrants to the
other that such party has not dealt with any broker or finder in
connection with the Demised Premises or this Lease other than Serls
Real Estate. Brokerage shall be paid by Landlord.
33. NOTICES
All notices, demands, elections and other communications desired or
required to be delivered or given under this Lease shall be in writing.
34. MISCELLANEOUS
All rights, powers and remedies provided herein may be exercised only
to the extent that the exercise thereof does not violate any applicable law, and
are intended to be limited to the extent necessary so that they will not render
this Lease invalid, unenforceable or not entitled to be recorded under any
applicable law.
Landlord and Tenant agree not to record this Lease.
The headings in this Lease are for purposes of reference only and
shall not limit or define the meaning hereof.
This Lease may be changed or modified only by an instrument in writing
signed by the party against which enforcement of such change or modification is
sought.
This Lease shall be binding upon and inure to the benefit
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of and be enforceable by the respective successors and assigns of the parties
hereto.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on
the date first above written.
EAST FISHKILL CORPORATE PARK
INVESTMENTS
ATTEST:
BY /s/ Frank Buyakowski
-------------------------------------
Frank Buyakowski partner
By /s/ Margaret Elizabeth
--------------------------------
Secretary NOVELLUS SYSTEMS INC.
ATTEST:
By /s/ John P Root
-------------------------------------
By
--------------------------------
Secretary
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EXHIBIT A
Landlord shall modify the existing building (Exhibit I) pursuant to a plan
(Exhibit II) which Exhibit II reflects the demised premises.
Landlord shall provide for demolition of the existing space including the
walls, raised floor computer room, and carpeting. Novellus retains option to
choose color/print. Landlord shall construct or rearrange interior walls,
electrical and HVAC fixtures, patch and paint. The Landlord will also be
responsible for purchasing and installing new ceiling tiles, commercial grade
28 oz. level loop nylon carpeting, and 1/8 inch commercial tile.
The Tenant shall be responsible for any telephone, computer or security
systems installation.
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[FLOOR PLAN CHART]
Exhibit I
[FLOOR PLAN CHART]
Exhibit II