LEASE AGREEMENT
BETWEEN
OTR, AN OHIO GENERAL PARTNERSHIP
on behalf of Landlord
AND
NOVELLUS SYSTEMS, INC.
on behalf of Tenant
DATED MAY 26, 1996
TABLE OF CONTENTS
1. PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. RENTAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(a) BASE RENTAL . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(b) ADDITIONAL RENTAL . . . . . . . . . . . . . . . . . . . . . . . 2
(i) OPERATING EXPENSES. . . . . . . . . . . . . . . . . . 2
(ii) REAL ESTATE TAXES . . . . . . . . . . . . . . . . . . 2
(c) PAYMENT OF PROPORTIONATE SHARE . . . . . . . . . . . . . . . . 3
(d) DISPUTE OF OPERATING EXPENSES. . . . . . . . . . . . . . . . . 3
(e) ADJUSTMENTS TO OPERATING EXPENSES. . . . . . . . . . . . . . . 4
(f) NO DECREASE IN BASE RENTAL . . . . . . . . . . . . . . . . . . 4
(g) OTHER CHARGES. . . . . . . . . . . . . . . . . . . . . . . . . 4
(h) PLACE OF PAYMENT . . . . . . . . . . . . . . . . . . . . . . . 4
4. CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
(a) IMPROVEMENTS TO BE CONSTRUCTED . . . . . . . . . . . . . . . . 4
(b) WORK PRIOR TO COMMENCEMENT DATE. . . . . . . . . . . . . . . . 4
(c) AVAILABILITY OF PREMISES PRIOR TO COMMENCEMENT DATE. . . . . . 5
(d) SUBSTANTIAL COMPLETION . . . . . . . . . . . . . . . . . . . . 5
(e) CONDITION OF PREMISES. . . . . . . . . . . . . . . . . . . . . 5
(f) OVERLOAD . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. USE OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(a) USE . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(b) ADVERTISEMENT. . . . . . . . . . . . . . . . . . . . . . . . . 5
(c) SOLICITATION . . . . . . . . . . . . . . . . . . . . . . . . . 5
(d) CARE . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(e) NOISE; ODORS . . . . . . . . . . . . . . . . . . . . . . . . . 6
6. ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(a) PROHIBITION. . . . . . . . . . . . . . . . . . . . . . . . . . 6
(b) INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . 6
(c) COMPLIANCE AND SUPERVISION OF ALTERATIONS. . . . . . . . . . . 6
(d) LANDLORD'S PROPERTY. . . . . . . . . . . . . . . . . . . . . . 7
(e) WIRING . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
7. MECHANICS' LIENS. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
8. MAINTENANCE AND REPAIR. . . . . . . . . . . . . . . . . . . . . . . . 7
(a) TENANT'S MAINTENANCE . . . . . . . . . . . . . . . . . . . . . 7
(b) LANDLORD'S MAINTENANCE . . . . . . . . . . . . . . . . . . . . 8
(c) INSPECTION . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9. COMMON AREAS . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(a) GRANT . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(b) PARKING . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(c) RIGHT TO CHANGE COMMON AREAS . . . . . . . . . . . . . . . . . 8
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(10) BUILDING SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(a) ELECTRIC . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(b) WATER . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(c) AIR-CONDITIONING AND HEAT. . . . . . . . . . . . . . . . . . . 9
(d) JANITOR SERVICE. . . . . . . . . . . . . . . . . . . . . . . . 9
(e) ELEVATOR SERVICE . . . . . . . . . . . . . . . . . . . . . . . 10
(f) INTERRUPTION OF SERVICES . . . . . . . . . . . . . . . . . . . 10
(g) ENERGY CURTAILMENT . . . . . . . . . . . . . . . . . . . . . . 10
(h) NORMAL BUSINESS HOURS. . . . . . . . . . . . . . . . . . . . . 10
(I) HOLIDAYS . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
11. ESTOPPEL CERTIFICATES . . . . . . . . . . . . . . . . . . . . . . . . 10
12. INDEMNIFICATION; WAIVER OF CLAIMS . . . . . . . . . . . . . . . . . . 10
13. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(a) TENANT'S INSURANCE . . . . . . . . . . . . . . . . . . . . . . 11
(b) LANDLORD AS ADDITIONAL INSURED . . . . . . . . . . . . . . . . 12
(c) LANDLORD'S INSURANCE . . . . . . . . . . . . . . . . . . . . . 12
(d) INCREASE IN PREMIUMS . . . . . . . . . . . . . . . . . . . . . 12
14. WAIVER OF SUBROGATION . . . . . . . . . . . . . . . . . . . . . . . . 12
15. HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
16. ASSIGNMENT AND SUBLEASE . . . . . . . . . . . . . . . . . . . . . . . 13
(a) PROHIBITION. . . . . . . . . . . . . . . . . . . . . . . . . . 13
(b) OPTION TO CANCEL . . . . . . . . . . . . . . . . . . . . . . . 13
(c) RIGHT TO COLLECT RENTS DIRECTLY. . . . . . . . . . . . . . . . 13
(d) EXCESS RENT. . . . . . . . . . . . . . . . . . . . . . . . . . 13
17 QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
18. COMPLIANCE WITH LAWS AND WITH RULES AND REGULATIONS . . . . . . . . . 13
(a) LAWS . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(b) RULES AND REGULATIONS. . . . . . . . . . . . . . . . . . . . . 14
19. FIRE AND CASUALTY . . . . . . . . . . . . . . . . . . . . . . . . . . 14
20. EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
21. DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
22. WAIVER OF DEFAULT OR REMEDY. . . . . . . . . . . . . . . . . . . . . .17
23. LANDLORD'S LIEN. . . . . . . . . . . . . . . . . . . . . . . . . . . .17
24. UNIFORM COMMERCIAL CODE. . . . . . . . . . . . . . . . . . . . . . . .17
25. FORCE MAJEURE. . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
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26. SUBORDINATION OF LEASE . . . . . . . . . . . . . . . . . . . . . . . .17
27. NOTICES AND CONSENTS . . . . . . . . . . . . . . . . . . . . . . . . .18
28. SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . .18
29. MISCELLANEOUS TAXES. . . . . . . . . . . . . . . . . . . . . . . . . .18
30. SUBSTITUTE PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . .19
31. BROKERAGE COMMISSION . . . . . . . . . . . . . . . . . . . . . . . . .20
32. HAZARDOUS DEVICES AND CONTAMINANTS . . . . . . . . . . . . . . . . . .20
(a) PROHIBITION . . . . . . . . . . . . . . . . . . . . . . . . . .20
(b) INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . .20
(c) DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . .21
33. EXCULPATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
34. SIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
35. LOCKS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
36. EMPLOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
37. PLUMBING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
38. CERTAIN RIGHTS RESERVED TO LANDLORD. . . . . . . . . . . . . . . . . .21
39. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
40. RELATIONSHIP OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . .22
41. GENDER AND NUMBER. . . . . . . . . . . . . . . . . . . . . . . . . . .22
42. TOPIC HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
43. COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
44. ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . .23
45. RECORDING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
46. GOVERNING LAW; INVALIDITY OF ANY PROVISIONS. . . . . . . . . . . . . .23
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LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease"), dated APRIL 25, 1995, is between OTR, an
Ohio general partnership ("Landlord") acting as the duly authorized nominee of
the BOARD OF THE STATE TEACHERS RETIREMENT SYSTEM OF OHIO ("STRBO"), and
Novellus Systems, Inc., ("Tenant").
1. PREMISES. In consideration of the rents, terms, provisions and
covenants of this Lease, Landlord hereby leases unto Tenant and Tenant hereby
rents and accepts from Landlord those certain premises containing approximately
6,916 net rentable square feet, consisting of 5,861 net usable square feet,
located on the NINTH (9TH) FLOOR (the "Premises"). The Premises are outlined on
the floor plan attached hereto as Exhibit A and incorporated herein by
reference. The Premises are contained in that certain building located at 1701
Directors Boulevard, Austin, Texas 78744 (the "Building"), which Building
contains 153,474 net rentable square feet of space. The land on which the
Building is situated, together with all improvements located thereon
(collectively, the "Property"), is more particularly described on Exhibit B,
attached hereto and incorporated herein by reference.
2. TERM.
(a) 54 Months as listed below. Subject to Paragraph 3 of
Exhibit G.
(b) For purposes of this Lease, the following terms shall have
the following meanings:
(i) "Commencement Date" shall mean the date upon which
the Premises are substantially completed (as hereinafter defined).
Promptly upon determination of the Commencement Date, Landlord and
Tenant shall execute a memorandum, setting forth the Commencement
Date and the expiration date of this Lease, in form and substance
substantially similar to that attached hereto as Exhibit C and
incorporated by reference.
(ii) "Lease Year" shall mean each twelve (12) month
period commencing on the first day of the first full month after the
Commencement Date and each anniversary thereafter during the Term
(as hereinafter defined) of this Lease; provided, however, that if
the Commencement Date is the first day of the month, the first Lease
Year shall commence on the Commencement Date. The first Lease Year
shall commence on the Commencement Date and end on the last day of
the last month of the first Lease Year regardless of whether the
first Lease Year is longer than twelve (12) months.
(iii) "Term" shall mean the initial term of this Lease and
any renewals or extensions thereof.
3. RENTAL.
(a) BASE RENTAL. Tenant shall pay to Landlord, as base rental
(the "Base Rental") during the Term of this Lease the following amounts:
Cost Per Square Foot, Net Rentable Monthly Annual
Dates NRA Per Annum Area Base Rental Base Rental
----- --------------------- ------------ ----------- -----------
06/01/95-11/30/95 $13.25 Per Sq. Ft. 6,916 $7,636.42 $91,637.00
12/01/95-03/31/96 $14.25 Per Sq. Ft. 6,916 $8,212.75 $98,553.00
04/01/96-11/30/96 $14.25 Per Sq. Ft. 7,978 $9,473.88 $113,686.50*
12/01/96-11/30/97 $14.85 Per Sq. Ft. 7,978 $9,872.78 $118,473.30
12/01/97-11/30/98 $15.20 Per Sq. Ft. 7,978 $10,105.47 $121,265.60
12/01/98-11/30/99 $15.55 Per Sq. Ft. 7,978 $10,338.16 $124,057.90
*On 04/01/96 Tenant shall begin paying on the 1,062 net rentable square feet,
900 net usable square feet Expansion Space as indicated on Exhibit A.
Each such monthly installments shall be due and payable in advance, on or
before the first day of each and every month during the Term, without
notice, demand or set-off; provided, however, that the first month's rent
shall be due and payable upon execution of this Lease.
(b) ADDITIONAL RENTAL. If Operating Expenses in any calendar year
exceed the sum of SIX DOLLARS & 25/100 ($6.25) per square foot NRA ("Base
Operating Expense Amount") (such excess amount being hereinafter referred
to as the "Operating Expense Pass-through Amount"), Tenant shall pay to
Landlord, as Additional Rental (hereinafter defined), Tenant's
Proportionate Share (as hereinafter defined) of the Operating Expense
Pass-through Amount as set forth below. If this Lease commences or
terminates on a date other than January 1, the annual Operating Expenses
and the Base Operating Expense Amount shall be prorated by multiplying
one-twelfth (1/12) of the annual Operating Expenses and one-twelfth (1/12)
of the Base Operating Expense Amount each by the number of full or partial
months between the Commencement Date and December 31 of the year of
commencement or between January 1 of the year of termination and the
termination date, as the case may be. As used in this Lease,
"Proportionate Share" shall mean a percentage factor, determined by
dividing the net rentable square footage contained in the Premises by the
net rentable square footage contained in the Building, or (5.2%) percent;
provided, however, that if THE BUILDING IS NOT FULLY OCCUPIED, TENANT'S
PROPORTIONATE SHARE OF THE OPERATING EXPENSE PASS-THROUGH AMOUNT FOR ANY
OPERATING EXPENSES THAT VARY WITH THE OCCUPANCY OF THE BUILDING which for
purposes of this paragraph shall be cleaning expenses, management fees,
maintenance costs and utilities, shall mean a percentage factor determined
by dividing the net rentable square footage contained in the Premises by
the average net rentable square footage occupied by tenants in the Building
during a calendar year.
(i) OPERATING EXPENSES. "Operating Expenses" shall include
those expenses paid by or on behalf of Landlord in respect of the
management, operation, service and maintenance of the Property,
including the Premises in accordance with generally accepted
principles of office building management as applied to the operation
and maintenance of office buildings similar to the type and nature of
the Property and in the general market area as the Property.
Operating Expenses shall include, but not be limited to, (A) Real
Estate Taxes (as hereinafter defined); (B) premium costs for
liability, boiler, extended coverage, casualty and other insurance
covering the Property to be maintained by Landlord and required by the
terms of this Lease; (C) electricity, gas, water and other utility
charges for the Property; (D) repair and maintenance of HVAC systems,
elevators, irrigation systems and other mechanical systems; (E) repair
and maintenance of the Common Areas (as hereinafter defined) and the
Building structure and roof; (F) trash removal and snow removal;
(G) janitorial service; (H) wages, salaries and fees of operating,
auditing, accounting, maintenance and management personnel in
connection with the Property; (I) all payroll charges for such
personnel, such as unemployment and social security taxes, workers'
compensation, health, accident and group insurance, and other so-
called fringe benefits; (J) rental charges for office space chargeable
to the operation and management of the Property; (K) license permits
and inspection fees; (L) supplies and materials used in the operation
and management of the Property; (M) furnishings and equipment not
treated by Landlord as capital expenditures of the Property; (N)
depreciation and the cost of any labor saving devices that may, from
time to time, be placed in operation as a part of Landlord's
maintenance program; (O) personal property taxes on property used in
the operation, maintenance, service and management of the Property;
(P) the cost, as reasonably amortized by Landlord, with interest at
the rate of ten percent (10%) per annum of the unamortized amount, of
any capital improvement made after completion of initial construction
of the Building which reduces Operating Expenses, but in an amount not
to exceed such reduction for the relevant year; (Q) management fees
relating to the Property; (R) the cost of any installation or
improvement required by reason of any law, ordinance or regulation,
which requirement did not exist on the date of the Lease and is
generally applicable to similar office buildings; and (S) all other
expenses necessary for the operation and management of the Property,
but excluding capital improvements except to the extent specifically
described in this paragraph.
(ii) REAL ESTATE TAXES. "Real Estate Taxes" shall include all
taxes, including state equalization factor, if any, and assessments,
special or otherwise, exclusive of penalties or discounts levied upon
or with respect to the Property, including the Premises, imposed by
any federal, state or local governmental agency, and including any
use, occupancy, excise, sales or other like taxes (other than general
income taxes
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on rent or other income from the Building computed in the case of a
graduated tax, as if Landlord's rent and other income from the
Building was Landlord's sole taxable income).
Real Estate Taxes also shall include the expense of contesting
the amount or validity of any such taxes, charges or assessments, such
expense to be applicable to the period of the item contested. Real
Estate Taxes shall not, however, include income, franchise, capital
stock, estate or inheritance taxes unless Landlord reasonably
determines that such taxes are in lieu of real estate taxes,
assessments, rental, occupancy and other like excise taxes. For
purposes of this Lease, Real Estate Taxes for any calendar year shall
be those taxes the last timely payment date for which occurs within
such calendar year. In case of special taxes or assessments payable
in installments, only the amount of the installment(s) the last timely
payment date for which occurs on or after the first day and on or
before the last day of such year shall be included in Real Estate
Taxes for that year.
Landlord shall retain the sole right to participate in any
proceedings to establish or contest the amount of Real Estate Taxes.
If a complaint against valuation, protest of tax rates or other action
increases or decreases the Real Estate Taxes for any calendar year,
resulting in an increase or decrease in rent hereunder, the Real
Estate Taxes for the affected calendar year shall be recalculated
accordingly and the resulting increased rent plus the expenses
incurred in connection with such contest, or decreased rent, less the
expenses incurred in connection with such contest, shall be paid
simultaneously with or applied as a credit against, as the case may
be, the rent next becoming due.
(c) PAYMENT OF PROPORTIONATE SHARE. To provide for current payments
of Operating Expenses, Tenant shall pay Tenant's Proportionate Share of the
Operating Expense Pass-through Amount, as estimated by Landlord from time
to time, in twelve (12) monthly installments, commencing on the first day
of the month following the month in which Landlord notifies Tenant of the
amount of its estimated Proportionate Share. Landlord and Tenant intend to
estimate the amount of Operating Expenses for each year and then to
reconcile such estimated expenses in the following year based on actual
Operating Expenses for such year paid by Landlord. If Tenant's
Proportionate Share of the actual Operating Expense Pass-through Amount
shall be greater than or less than the aggregate of all installments so
paid on account to Landlord for such twelve (12) month period, then within
thirty (30) days of Tenant's receipt of Landlord's statement of reconciled
Operating Expenses, Tenant shall pay to Landlord the amount of such
underpayment, or Landlord shall credit Tenant for the amount of such
overpayment against the next maturing installment(s) of rent, as the case
may be. The obligation of Tenant with respect to the payment of Tenant's
Proportionate Share of the Operating Expense Pass-through Amount shall
survive the termination of this Lease. Any payment, refund, or credit made
pursuant to this subparagraph 3(c) shall be made without prejudice to any
right of Tenant to dispute the statement as hereinafter provided, or of
Landlord to correct any item(s) as billed pursuant to the provisions
hereof. Landlord's failure to give such statement shall not constitute a
waiver by Landlord of its right to recover rent that is due and payable
pursuant to this subparagraph 3(c).
(d) DISPUTE OF OPERATING EXPENSES. If Tenant questions in writing
any such notice of reconciled Operating Expenses (or revised notice
thereof), and if the question is not amicably settled between Landlord and
Tenant within thirty (30) days after said notice of reconciled Operating
Expenses (or revised adjusted) has been given, Landlord shall, during the
sixty (60) days next following the expiration of such thirty (30) day
period, employ an independent certified public accountant to audit
Operating Expenses. The determination of such account shall be final,
conclusive and binding upon Landlord and Tenant. Tenant understands that
the actual itemization of, and the amount of individual items constituting,
Operating Expenses is confidential; and while Landlord shall keep and make
available to such accountant all records in reasonable detail, and shall
permit such accountant to examine and audit such of Landlord's records as
may reasonably be required to verify such reconciled Operating Expenses, at
reasonable times during business hours, Landlord shall not be required to
(and the accountant shall not be permitted to) disclose to any person, firm
or corporation, including to Tenant, any such details (it being the intent
of the parties that such accountant shall merely certify to Landlord and to
Tenant the correct amount of adjusted additional Operating Expenses for the
calendar year). Any change in the reconciled Operating Expenses required
by such accountant's determination shall be made within thirty (30) days
after such determination has been rendered. The expenses involved in such
determination shall be borne by Tenant and deemed to be Additional Rental
under this
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Lease, unless the results of such audit determine that the difference
between the Operating Expenses as determined by the audit and the Operating
Expenses as determined by Landlord is greater than five percent (5%) of the
Operating Expenses as determined by Landlord, in which case such expenses
shall be borne by the Landlord. If Tenant does not, in writing, question
the reconciled Operating Expenses within thirty (30) days after such notice
has been given, Tenant shall be deemed to have approved and accepted such
reconciled Operating Expenses.
(e) ADJUSTMENTS TO OPERATING EXPENSES. If a clerical error occurs or
Landlord or Landlord's accountants discover new facts, which error or
discovery causes Operating Expenses for any period to increase or decrease,
upon notice by Landlord to Tenant of the adjusted additional Operating
Expenses for such calendar year, the adjusted additional Operating Expenses
shall apply and any deficiency or overpayment of Tenant's Proportionate
Share of the Operating Expense Pass-through Amount, as the case may be,
shall be paid by Tenant or taken as a credit by Tenant according to the
provisions set forth above. This provision shall survive the termination
of the Lease.
(f) NO DECREASE IN BASE RENTAL. If the actual Operating Expenses is
less than the Base Operating Expense Amount, the annual Base Rental as set
forth in subparagraph 3(a) hereof shall not be reduced.
(g) OTHER CHARGES. All costs, expenses and other sums that Tenant
assumes or agrees to pay to Landlord pursuant to this Lease ("Other
Charges") shall be deemed rental and, in the event of nonpayment thereof,
Landlord shall have all the rights and remedies herein provided for in case
of nonpayment of Base Rental. If a monthly installment of rent is not
received on or before the fifth (5th) day of the month in which it is due,
other remedies for nonpayment of rent notwithstanding, Tenant shall pay to
Landlord, a late charge of five percent (5%) of such installment as rent
for the purpose of defraying Landlord's administration expenses incident to
the handling of such overdue payment, and such past due rent shall bear
interest at a rate of interest equal to the prime rate as announced from
time to time by Bank One, Columbus, N.A., plus three percent (3%) per annum
(the "Default Rate"), for each day from the first day of the month through
the date such monthly installment of rent is received by Landlord. For
purposes of this Lease, "rent" shall mean Base Rental, Additional Rental,
and Other Charges.
(h) PLACE OF PAYMENT. Tenant shall pay all rent and other charges
due under this Lease without demand, deduction or set off to Landlord at
C/O TRAMMELL CROW COMPANY, 1701 DIRECTORS BOULEVARD, SUITE 350, AUSTIN,
TEXAS 78744 or at such other place as Landlord may designate from time to
time hereafter by written notice to Tenant.
4. CONSTRUCTION.
(a) IMPROVEMENTS TO BE CONSTRUCTED. Landlord, at its own cost and
expense, shall perform the work and make the installations in the Premises
that are designated as Landlord's Work in Exhibit D, attached hereto and
incorporated herein by reference. Landlord, at Tenant's cost and expense,
shall perform the work and make the installations in the Premises that are
designated as Tenant's Work in Exhibit D. Except as expressly set forth in
Exhibit D, Landlord has made no promise to alter, remodel or improve the
Premises, the Building or the Property.
(b) WORK PRIOR TO COMMENCEMENT DATE. All work, including Tenant's
Work, in the Premises shall be substantially completed prior to June 1,
1995 (the "Estimated Completion Date") and the Premises shall be in good
and tenantable condition in all respects for occupancy by Tenant for its
purposes and uses so long as Tenant shall have approved the plans and
specifications for construction and remodeling of the Premises on or before
April 15, 1995. Tenant may make changes in said plans and specifications
on or before April 15, 1995; provided, however, that in such event Landlord
shall be given a reasonable extension of time to complete Landlord's Work
after the Estimated Completion Date. Any extension of time and
modifications to plans and specifications shall be in writing, dated and
signed by both parties. (If Tenant does not timely submit to Landlord
approved plans and specifications, the Commencement Date shall be the
Estimated Completion Date and the rental shall commence from that date
notwithstanding the fact that the Premises are not substantially
completed.) The Estimated Completion Date
4
shall be postponed in the event of (I) the unavailability of materials and
equipment that have been specified and requested by Tenant or (ii) delays
caused by acts of God, strikes and other events beyond the reasonable
control of Landlord, and neither circumstance shall give rise to liability
of Landlord.
(c) AVAILABILITY OF PREMISES PRIOR TO COMMENCEMENT DATE. If
Landlord, at Tenant's request, makes the Premises available to Tenant
before the Commencement Date to decorate, furnish, and equip the Premises,
Tenant shall not interfere with the completion of Landlord's Work.
Tenant's use of the Premises for such work shall not create a
landlord-tenant relationship between the parties, or constitute occupancy
of the Premises within the meaning of the next sentence, but the provisions
of Paragraphs 12 and 13 of this Lease shall apply.
(d) SUBSTANTIAL COMPLETION. As used herein, the work in the Premises
shall be "substantially completed" when the work has been completed in
accordance with the plans and specifications subject to the completion of
punch list items and a certificate of occupancy has been issued.
(e) CONDITION OF PREMISES. Except as otherwise agreed to in writing,
Tenant's taking possession of the Premises shall be conclusive evidence
against Tenant that the Premises were in good order and satisfactory
condition when Tenant took possession. Landlord has made no representation
respecting the condition of the Premises, the Building or the Property,
except for latent defects except as is expressly set forth in Exhibit D.
At the termination of this Lease, by lapse of time or otherwise, Tenant
shall remove all Tenant's property, including but not limited to, trade
fixtures, from the Premises, and shall return the Premises broom-clean and
in as good a condition as when the Tenant took possession or as same may
thereafter have been put by Landlord, except for ordinary wear, loss by
fire or other casualty, and repairs that Landlord is required to make under
this Lease. If Tenant fails to remove any or all of its property upon
termination of this Lease, such property shall be deemed to be abandoned
and shall become the property of Landlord.
(f) OVERLOAD. To coordinate orderly move-ins and move-outs, no
furniture, freight or equipment of any kind exceeding three hundred (300)
pounds shall be brought into the Building without prior notice to Landlord
and Landlord shall designate the time and manner of moving of the same.
Landlord shall have the right to prescribe the weight, size and position of
all safes and other heavy equipment brought into the Building and also the
times and manner of moving the same in and out of the Building. Safes or
other heavy objects shall, if considered necessary by Landlord, stand on
supports of such thickness as is necessary to properly distribute the
weight. Landlord will not be responsible for loss of or damage to any such
safe or property from any cause, and all damage done to the Building by
moving or maintaining any such safe or other property shall be repaired at
Tenant's expense.
5. USE OF THE PREMISES.
(a) USE. Tenant shall use the Premises for the conduct of GENERAL
OFFICE USE and for no other purpose whatsoever. Tenant shall not, without
the prior written consent of Landlord, exhibit, sell or offer for sale on
the Premises or in the Building any article or thing, except those articles
and things essentially connected with Tenant's stated use of the Premises.
(b) ADVERTISEMENT. Tenant shall not advertise the business,
profession or activities of Tenant conducted in the Building in any manner
which violates the letter or spirit of any code of ethics adopted by any
recognized association or organization pertaining to such business of
Tenant, and shall never use any picture or likeness of the Building in any
circulars, notices, advertisements or correspondence without Landlord's
prior written consent.
(c) SOLICITATION. Tenant shall not disturb, solicit, or canvass any
occupant of the Building and shall cooperate with Landlord to prevent same.
(d) CARE. Tenant shall use and occupy the Premises so that no other
occupant of any adjoining premises will be unreasonably disturbed and shall
create no nuisance in, upon or about the Premises. Subject to
5
the provisions of Paragraph 8(b), Tenant shall take good care of the
Premises, the fixtures and appurtenances thereto, and all alterations,
additions and improvements thereto. Tenant will not make or permit to be
made any use of the Premises or any part thereof, and will not bring into
or keep anything in the Premises or any part thereof that (i) violates any
of the covenants, agreements, terms, provisions and conditions of this
Lease; (ii) directly or indirectly is forbidden by public law, ordinance or
regulation of any government or public authority (including zoning
ordinances); (iii) is dangerous to life, limb or property; (iv) increases
the risk to Landlord or any other tenant or invalidate or increase the
premium cost of any policy of insurance carried on the Building or covering
its operation; or (v) in the reasonable judgment of Landlord, in any way
impairs or tends to impair the character, reputation or appearance of the
Property as a first-class office building, or impairs or interferes with
any of the services performed by Landlord for the Property.
(e) NOISE; ODORS. Tenant shall not use, keep or permit to be used or
kept any foul or noxious gas or substance in the Premises; permit or suffer
the Premises to be occupied or used in a manner offensive or objectionable
to Landlord or other occupants of the building by reason of noise, odors
and/or vibrations; interfere in any way with other tenants or those having
business therein; or bring in or keep any animals or birds in the Premises.
Tenant shall not use the Premises for housing accommodations or lodging or
sleeping purposes, or do any cooking therein, or use any illumination other
than electric light.
6. ALTERATIONS.
(a) PROHIBITION. Tenant shall not make any alterations, additions or
improvements (collectively, the "Alterations") in or to the Premises, or in
or to the Building without the express prior written consent of Landlord;
provided, however, that Landlord shall not be unreasonable in withholding
consent to nonstructural Alterations. Before commencing any work in
connection with the Alterations, Tenant shall furnish to Landlord for its
approval the following: (i) detailed plans and specifications therefor,
(ii) names and addresses of each of the contractors and subcontractors,
(iii) copies of all contracts, subcontracts and necessary permits, (iv) a
payment and performance bond, or other indemnification, in form and amount
satisfactory to Landlord, protecting Landlord against any and all claims,
costs, damages, liabilities and expenses that may arise in connection with
the Alterations, (v) such documentation as is necessary to comply fully
with the mechanics' lien law of the state in which the Premises is located,
and (vi) certificates of insurance, in form and amount satisfactory to
Landlord, from all contractors and subcontractors who will perform labor or
furnish materials, insuring Landlord against any and all liability for
personal injury, including workers' compensation claims and for property
damage that may arise out of or be in any manner connected with the
Alterations.
(b) INDEMNIFICATION. In addition to the indemnity set forth in
Paragraph 12 of this Lease, Tenant hereby specifically agrees to indemnify
and hold harmless Landlord from and against any and all liabilities, costs
and expenses of every kind and description, including attorneys' fees, that
may arise out of or in any manner be connected with any Alterations made by
Tenant. Tenant shall pay the cost of all such Alterations and all costs
associated with decorating the Premises that may be occasioned thereby.
Upon completion of any such Alterations, Tenant shall furnish Landlord with
(i) receipted bills covering all labor and materials used, together with
such documentation as is necessary to comply fully with the mechanics' lien
law of the state in which the Premises are located; (ii) a true and correct
copy of the certificate of occupancy, if one is issued; and (iii) a
certificate of Tenant's architect or engineer stating that such Alterations
were made in substantial accordance with the plans and specifications.
Notice is hereby given that Landlord shall not be liable for any labor or
materials furnished or to be furnished to Tenant upon credit, and that no
mechanic's or other lien for such labor or materials shall attach to or
affect the reversion or other estate or interest of Landlord in and to the
Premises.
(c) COMPLIANCE AND SUPERVISION OF ALTERATIONS. All Alterations made
by Tenant hereunder shall be installed in a good and workmanlike manner,
using only materials of the same or higher quality as those installed in
the Building. All Alterations shall comply with all requirements of
Landlord's insurance carriers and with all laws, rules, ordinances and
regulations of any lawful authority. Tenant shall permit Landlord to
supervise construction operations in connection with any such Alterations,
if Landlord requests the right to do so (but Landlord shall have no
obligation to make such requests, or having done so, to supervise
construction). Landlord's
6
supervision of construction shall be done solely for the benefit of
Landlord and shall not alter Tenant's liability and responsibility under
this Paragraph 6.
(d) LANDLORD'S PROPERTY. All Alterations, whether temporary or
permanent, including hardware, non-trade fixtures and wall and floor
coverings, whether placed in or upon the Premises by Landlord or Tenant,
shall become Landlord's property and shall remain with the Premises at the
termination of this Lease, whether by lapse of time or otherwise, without
compensation, allowance or credit to Tenant; provided, however, that
notwithstanding the foregoing, Landlord may request that any or all of said
Alterations in or upon the Premises made by Tenant be removed by Tenant at
the termination of this Lease. If Landlord requests such removal or if
Tenant removes its trade fixtures, Tenant shall remove the same prior to
the end of the Term and shall repair all damage to the Premises, the
Building or the Property caused by such removal. Tenant shall not,
however, be required to remove pipes and wires concealed in floors, walls
or ceilings, provided that Tenant properly cuts and caps the same, and
seals them off in a safe, lawful and workmanlike manner, in accordance with
Landlord's reasonable requirements and all applicable building codes. If
Tenant does not remove any Alterations when requested by Landlord to do so,
Landlord may remove the same and repair all damage caused thereby, and
Tenant shall pay to Landlord the cost of such removal and repair
immediately upon demand therefor by Landlord, plus fifteen percent (15%)
of the cost of such removal to reimburse Landlord for its administrative
expense. Tenant's obligation to observe or perform this covenant shall
survive the expiration or termination of this Lease.
(e) WIRING. Landlord will direct electricians as to where and how
telephone and computer wires are to be introduced. No boring or cutting
for wires shall be allowed without Landlord's consent. The location of
telephones, call boxes and other office equipment affixed to the Premises
shall be subject to Landlord's approval.
7. MECHANICS' LIENS.
(a) If, because of any act or omission of Tenant, any mechanic's lien
or other lien, charge or order for the payment of money shall be filed
against any portion of the Premises, Tenant, at its own cost and expense,
shall cause the same to be discharged of record or bonded against within
ten (10) days of the filing thereof unless Tenant shall contest the
validity of such lien by appropriate legal proceedings diligently conducted
in good faith and without expense to Landlord; and Tenant shall indemnify
and save harmless Landlord against and from all costs, liabilities, suits,
penalties, claims and demands, including attorneys' fees, on account
thereof.
(b) If Tenant shall fail to cause such liens to be discharged of
record or bonded against within the aforesaid ten (10) day period or shall
fail to satisfy such liens within ten (10) days after any judgment in favor
of such lien-holders from which no further appeal might be taken, then
Landlord shall have the right to cause the same to be discharged. All
amounts paid by Landlord to cause such liens to be discharged, plus
interest on such amounts at the Default Rate shall constitute Other Charges
payable by Tenant to Landlord.
8. MAINTENANCE AND REPAIR.
(a) TENANT'S MAINTENANCE. Tenant, at its sole cost and expense,
shall maintain and repair during the Term of this Lease the Premises and
every part thereof and any and all appurtenances thereto, including but not
limited to, the doors and interior walls of the Premises; special light
fixtures; kitchen fixtures; auxiliary heating, ventilation, or
air-conditioning equipment; private bathroom fixtures and any other type of
special equipment, together with related plumbing or electrical services;
and rugs, carpeting, wall coverings, and drapes within the Premises,
whether installed by Tenant or by Landlord on behalf of Tenant, and whether
or not such items will become Landlord's property upon expiration or
termination of this Lease. Notwithstanding the provisions hereof, in the
event that repairs required to be made by Tenant become immediately
necessary to avoid possible injury or damage to persons or property,
Landlord may, but shall not be obligated to, make repairs to such items at
Tenant's expense, which shall constitute Other Charges payable by Tenant
to Landlord. Within ten (10) days after Landlord renders a bill for the
cost of said repairs, Tenant shall reimburse Landlord.
7
(b) LANDLORD'S MAINTENANCE. Subject to Paragraph 8(a) above,
Landlord shall keep repair and maintain the Building (including the roof
and structural members, the Common Areas, mechanical and electrical
equipment, the exterior and architectural finish, and all items except
those excepted elsewhere in this Lease) of which the Premises are a part,
and the lawn, shrubs and other landscaping on the Property, all in good and
tenantable condition during the Term of this Lease. Landlord shall, in
addition, supply reasonable snow removal for the walkways and parking areas
of the Property during Normal Business Hours (as hereinafter defined).
Tenant shall notify Landlord immediately when any repair to be made by
Landlord is necessary. If any portion of the Building or the Premises is
damaged through the fault or negligence of Tenant, its agents, employees,
invitees or customers, then Tenant shall promptly and properly repair the
same at no cost to Landlord; provided, however, that Landlord may, at its
option, make such repairs and Tenant shall, on demand, pay the cost
thereof, together with interest at the Default Rate to Landlord as Other
Charges. Tenant shall immediately give Landlord written notice of any
defect or need for repairs, after which notice Landlord shall have
reasonable opportunity to repair same or cure such defect. For the
purposes of making any repairs or performing any maintenance, Landlord may
block, close or change any entrances, doors, corridors, elevators, or other
facilities in the Building or in the Premises, and may close, block or
change sidewalks, driveways or parking areas of the Property, so long as
Tenant at all times has reasonable access to the Premises for Tenant
intended use. Landlord shall not be liable to Tenant, except as
expressly provided in this Lease, for any damage or inconvenience and
Tenant shall not be entitled to any abatement of rent by reason of any
repairs, alterations or additions made by Landlord under this Lease.
(c) INSPECTION. Tenant shall permit Landlord, its agents, employees
and contractors, at any time in the event of an emergency, and otherwise at
reasonable times, to take any and all measures, including inspections,
repairs, alterations, additions and improvements to the Premises or to the
Building, as may be necessary or desirable to safeguard, protect or
preserve the Premises, the Building or Landlord's interests; to operate or
improve the Building; to comply on behalf of Tenant with all laws, orders
and requirements of government or other authority (if Tenant fails to do
so); to examine the Premises to verify Tenant's compliance with all of the
terms, covenants, obligations and conditions of this Lease; or to exercise
any rights with respect to the Premises that Landlord may exercise in the
event of default by Tenant.
9. COMMON AREAS.
(a) GRANT. During the Term of this Lease, Landlord grants to Tenant,
its employees, customers and invitees, a nonexclusive license to use, in
common with all others to whom Landlord has granted or may hereafter grant
a license to use, the common areas of the Property, including but not
limited to, the sidewalks, lobbies, halls, passages, exits, entrances,
elevators, stairways, restrooms, parking areas (except as provided for in
subparagraph (b) below), driveways and landscaped areas (collectively, the
"Common Areas") subject to reasonable rules and regulations respecting the
Common Areas as Landlord may from time to time promulgate. The Common
Areas shall not be obstructed by Tenant or used for any purpose other than
for ingress to and egress from the Premises. The Common Areas are not for
the use of the general public and Landlord shall in all cases retain the
right to control and prevent access thereto by all persons whose presence,
in the judgment of Landlord, shall be prejudicial to the safety, character,
reputation and interests of the Building and its tenants; provided that
nothing herein contained shall be construed to prevent such access to
persons with whom Tenant normally deals in the ordinary course of Tenant's
business unless such persons are engaged in illegal activities. Neither
Tenant nor its employees, customers or invitees shall go upon the roof or
mechanical floors or into mechanical areas of the Building.
(b) PARKING. Parking will be provided in the surface parking area of
the Property, and subject to the limitations below, in the underground
parking area of the Building, if any. Landlord shall have the right to
designate aboveground parking areas for the use of the Building, and Tenant
and its employees shall not park in parking areas not so designated,
specifically including entrances. Upon written notice from Landlord,
Tenant shall furnish to Landlord, within five (5) days after receipt of
such notice, the state automobile license numbers assigned to the
automobiles of Tenant and its employees. Landlord shall not be liable for
any vehicle of Tenant or its employees that the Landlord shall have towed
from the Premises when illegally parked. Landlord shall have no liability
to Tenant for any damages or claims arising from the use of the parking
area or roadways by Tenant, other tenants, or their customers invitees or
employees. Tenant shall be allotted TWENTY (20) covered spaces within the
8
garage, beginning October 1, 1995, but prior to this date only eight (8)
covered spaces within the garage shall be available, which at Landlords
discretion shall be either on the first level of the garage or reserved on
the second level. Tenant shall be allowed fan additional TWELVE (12)
spaces in the surface lots associated with the building. Landlord is not
responsible for the policing or enforcement of the exclusivity of these
underground spaces. Tenant, its sole cost and expense, shall be issued key
cards, not in excess of the number of spaces allotted to Tenant, which
cards will allow Tenant entry into the underground parking area. If any
of the key cards issued to Tenant are lost, Landlord shall charge Tenant
the sum of Fifty Dollars ($50.00) for each replacement card issued.
(c) RIGHT TO CHANGE COMMON AREAS. Landlord may do and perform such
acts in and to the Common Areas as, Landlord, in its good business
judgment, shall determine to be advisable. Landlord hereby reserves the
right to make alterations, additions, deletions or changes in the Common
Area, including, but not limited to, changes in its size and configuration.
10. BUILDING SERVICES.
(a) ELECTRIC. Landlord shall provide electric power to the Premises.
Electric power furnished by Landlord is intended to be that consumed in
normal office use during Normal Business Hours for lighting, heating,
ventilating, air conditioning and operating all office equipment. Landlord
reserves the right, if Tenant's consumption of electricity exceeds that
required for normal office use during Normal Business Hours, to include a
charge for such electricity as rent. Such charge shall be based upon the
average cost per unit of electricity for the Building applied to the excess
use as determined by an independent engineer selected by Landlord, or at
Landlord's option, to be determined by a submeter to be furnished and
installed at Tenant's expense. If Tenant refuses to pay upon demand of
Landlord such excess charges, such refusal shall constitute a breach of the
obligation to pay rent under this Lease and shall entitle Landlord to the
rights granted in this Lease for such breach. Tenant shall use strict care
and caution to ensure that all electricity is carefully shut off to prevent
waste or damage.
(b) WATER. Landlord shall provide water for drinking, lavatory and
toilet purposes from the regular Building supply (at the prevailing
temperature) through fixtures installed by Landlord (or by Tenant with
Landlord's prior written consent); provided that Tenant shall reimburse
Landlord, at rates fixed by Landlord, for water used by Tenant for
supplementary air-conditioning or refrigerating installed by or for Tenant
and for any other water used by Tenant (except for public drinking water
and public lavatory use).
(c) AIR-CONDITIONING AND HEAT. Landlord shall provide air
conditioning and heat to the Premises for comfortable occupancy during
Normal Business Hours, subject at all times, however, to restrictions
placed upon Landlord by any duly constituted governmental agency and/or by
any utility supplier. Tenant shall cooperate fully with Landlord to assure
the effective operation of the Building's air-conditioning and heating
systems, including the closing of venetian blinds and drapes, and if
windows are operable, to keep them closed when the air-conditioning or
heating system is in use. Tenant shall not use any apparatus or device
in, upon or about the Premises that in any way may increase the amount
of such services usually furnished or supplied to tenants in the Building,
and Tenant shall not connect any apparatus or device with the conduits
or pipes, or other means by which such services are supplied for the
purpose of using additional or unusual amounts of such services, without
the prior written consent of Landlord. If Tenant uses such services under
this provision to excess, Landlord reserves the right to charge Tenant for
such services, as rent. If Tenant refuses to make payment upon demand of
Landlord, such excess charge shall constitute a breach of the obligation to
pay rent under this Lease and shall entitle Landlord to the rights granted
in this Lease for such breach.
(d) JANITOR SERVICE. Landlord shall provide janitor service in and
about the Premises and the Building at the end of each Monday, Tuesday,
Wednesday and Thursday, and at Landlord's option, at the end of either
Sunday or Friday, except for Holidays (as hereinafter defined). Tenant
shall not provide any janitor service without Landlord's prior written
consent. If Landlord consents to janitor service provided by Tenant, the
same shall be subject to Landlord's rules and regulations and to Landlord's
supervision, but at Tenant's sole cost and expense (without reduction in
Base Rent or Additional Rental). Landlord shall further provide carpet
cleaning in the Common Areas and window cleaning at such times as Landlord,
in its sole opinion, considers that such cleaning
9
is necessary. Each Tenant shall cooperate with any janitor service in
keeping the Premises neat and clean. Landlord shall be in no way
responsible to Tenant, its agents, employees or invitees, for any loss of
property within the Premises or for any damage to property thereon, from
any cause.
(e) ELEVATOR SERVICE. If the Building contains elevators, Landlord
shall provide passenger elevator during Normal Business Hours.
(f) INTERRUPTION OF SERVICES. Tenant hereby acknowledges that any
one or more of the utilities or building services specified in this
Paragraph 10 may be interrupted or diminished temporarily by Landlord or
other persons until certain repairs, alterations or other improvements to
the Premises or other parts of the Property can be made or by any event or
cause which is beyond Landlord's reasonable control, including, without
limitation, any ration or curtailment of utility services; that Landlord
does not represent, warrant or guarantee to Tenant the continuous
availability of such utilities or building services; and that any such
interruption shall not be deemed or construed to be an interference with
Tenant's right of possession, occupancy or use of the Premises, shall not
render Landlord liable to Tenant for damages or entitle Tenant to any
reduction of Base Rental, and shall not relieve Tenant from its
obligation to pay Base Rental and to perform its other obligations under
this Lease.
(g) ENERGY CURTAILMENT. Landlord and Tenant specifically acknowledge
that energy shortages in the region in which the Property is located may
from time to time necessitate reduced or curtailed energy consumption on
the Property. Tenant shall comply with all such rules and regulations as
may be promulgated from time to time by any governmental authority with
respect to energy consumption, and during such period of time as such
governmental authority may so require, Tenant shall reduce or curtail
operations in the Premises as shall be directed by Landlord or such
governmental authority. Compliance with such rules and regulations and/or
such reduction or curtailment of operation shall not constitute a breach
of Landlord's covenant of quiet enjoyment or otherwise invalidate or affect
this Lease, and Tenant shall not be entitled to any diminution or abatement
in Base Rental during the periods of reduction or curtailment of
operations.
(h) NORMAL BUSINESS HOURS. For purposes of this Lease, "Normal
Business Hours" shall mean 8:00 a.m. to 6:00 p.m., Monday through Friday,
and 8:00 a.m. to 1:00 p.m. on Saturday and not including Sundays and
Holidays.
(i) HOLIDAYS. For purposes of this Lease, Holidays shall mean New
Year's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving and
Christmas.
11. ESTOPPEL CERTIFICATES. Within ten (10) days after written request by
Landlord, Tenant shall execute, acknowledge and deliver to Landlord or to
Landlord's mortgagee, a prospective purchase of the Property or any part
thereof, an estoppel certificate, in form and substance substantially similar to
that attached as Exhibit E and incorporated herein by reference. Tenant shall
make such modifications to such estoppel certificate as may be necessary to make
such certificate true and accurate, it being intended that any such statement
delivered pursuant to this Paragraph 11 may be relied upon by any such
mortgagee, prospective mortgagee, prospective purchaser, or land lessor of the
Property. If Tenant fails to provide such estoppel certificate with ten (10)
days after Landlord's request, Tenant shall be deemed to have approved the
contents of any such certificate submitted to Tenant by Landlord and by Landlord
is hereby authorized to so certify.
12. INDEMNIFICATION; WAIVER OF CLAIMS.
(a) Tenants shall protect, indemnify and hold harmless Landlord, its
agents, servants, employees, officers, directors and partners forever
against and from (i) any penalty, damages, charges or costs imposed or
resulting from any violation of any law, order or ordinance of any
governmental agency, or by the use and occupancy of the Premises by Tenant,
whether occasioned by the neglect of Tenant or those holding under Tenant;
(ii) all claims, losses, costs, damages and expenses, including attorneys'
fees, arising out of or from any accident or other occurrence on or about
the Premises or the Property causing injury to any person or property,
except caused by the negligent or intentional act or omission of Landlord
or its servants, agents or employees; (iii) all
10
claims, losses, costs, damages and expenses, including attorneys' fees,
arising out of any failure of Tenant in any respect to comply with or
perform all the requirements and provisions of this Lease or arising out
of any use of the Premises or the Property by Tenant or any one claiming
by, through or under Tenant.
(b) Landlord shall not be liable for, and Tenant hereby waives all
claims against Landlord, (i) for any and all damages or loss to fixtures,
equipment or other property of Tenant and its servants, agents, employees,
contractors, suppliers, invitees, patrons and guests, in, upon or about the
Premises or the Property, or (ii) for injury or death to any person,
occurring in, upon or about the Premises or the Property, resulting from
any cause whatever (except caused by the negligent or intentional act or
omission of Landlord or its servants, agents or employees), including, but
not limited to, water, snow, frost, ice, explosion, failing plaster, fire
or gas, smoke or other fumes, nor by reason of the leaking, breaking,
backing up or other malfunction of any lines, wires, pipes, tanks, boilers,
lifts or any other appurtenances, regardless by whom installed or
maintained (Tenant hereby expressly assuming all responsibility for the
safety and security of the person and property of Tenant, and its servants,
agents, employees, contractors, suppliers, invitees, patrons and guests,
while in, upon or about the Premises). The occurrence of any event
described in this Paragraph 12 shall not constitute a breach of Landlord's
covenant of quiet enjoyment set forth in Paragraph 17.
(c) Landlord shall protect, indemnify, and hold harmless Tenant, its
agents, servants, employees, officers, directors and partners forever
against and from (i) any penalty, damages, charges or costs imposed or
resulting from any violation of any law, order or ordinance of any
governmental agency, or by the use and occupancy of the Property by
Landlord, whether occasioned by the neglect of Landlord or those holding
under Landlord; (ii) all claims, losses, costs, damages and expenses,
including attorney's fees, arising out of or from any accident or other
occurrence on or about the Property causing injury to any person or
property, except caused by the negligent or intentional act or omission of
Tenant or its servants, agents or employees; (iii) all claims, losses,
costs, damages and expenses, including attorneys' fees, arising out of any
failure of Landlord in any respect to comply with or perform all the
requirements ad provisions of this lease or arising out of any use of the
Property by Landlord or any one claiming by, through or under Landlord.
(d) Tenant shall not be liable for, and Landlord hereby waives all
claims against Tenant, (i) for any and all damages or loss to fixtures,
equipment or other property of Landlord and its servants, agents,
employees, contractors, suppliers, invitees, patrons and guests, in, upon
or about the Property, or (ii) for injury or death to any person, occurring
in, upon or about the Property, resulting from any cause whatever (except
caused by the negligent or intentional act or omission of Tenant or its
servants, agents or employees), including, but not limited to, water, snow,
frost, ice, explosion, falling plaster, fire or gas, smoke or other fumes,
nor by reason of the leaking, breaking, backing up or other malfunction of
any lines, wires, pipes, tanks, boilers, lifts or any other appurtenances,
regardless of whom installed or maintained (Landlord hereby expressly
assuming all responsibility for the safety and security of the persons and
property of Landlord, and its servants, agents, employees, contractors,
suppliers, invitees, patrons and guests, while in, upon or about the
Property).
13. INSURANCE.
(a) TENANT'S INSURANCE. Tenant, at its sole cost and expense, shall
carry during the entire Term of this lease, the following types of
insurance:
(i) Commercial general liability insurance against injuries to
persons occurring in, upon or about the Premises, with minimum
coverage of Five Million Dollars ($5,000,000.00) per occurrence and
Five Million Dollars ($5,000,000.00) aggregate coverage per one (1)
accident or disaster, and One Million Dollars ($1,000,000.00) for
property damage;
(ii) Fire, extended coverage, vandalism and malicious mischief,
and sprinkler damage and all-risk insurance coverage on all personal
property, trade fixtures, floor coverings, wall coverings,
furnishings, furniture, and contents for their full insurable value on
a replacement cost basis;
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(iii) Business interruption insurance, against loss or damage
resulting from the same risks as are covered by the insurance
mentioned in subparagraph (i) above in an amount equal to the
aggregate of one (1) year's requirement of (A) Base Rental, (B) the
amount payable by Tenant for Additional Rental as provided in
subparagraph 3(b), and (C) insurance premiums necessary to comply with
this Paragraph 13; and
(iv) Workers' Compensation or other insurance, if and to the
extent required by law and in form and amounts required by law.
(b) LANDLORD AS ADDITIONAL INSURED. All such insurance required to
be maintained by Tenant shall name Landlord as an additional insured and
shall be written with a company or companies reasonably satisfactory to
Landlord, having a policyholder rating of at least "A" and be assigned a
financial size category of at least "Class XIV" as rated in the most recent
edition of "Best's Key Rating Guide" for insurance companies, and
authorized to engage in the business of insurance in the state in which the
Premises are located. Tenant shall deliver to Landlord copies of such
policies and customary insurance certificates evidencing such paid-up
insurance. Such insurance shall further provide that the same may not be
canceled, terminated or modified unless the insurer gives Landlord and
Landlord's mortgagee(s) at least sixty (60) days' prior written notice
thereof.
(c) LANDLORD'S INSURANCE. Landlord shall maintain in force, at all
times during the Term of this Lease, a policy or policies of fire insurance
to the extent of at least eighty percent (80%) of the insurable value of
the Building.
(d) INCREASE IN PREMIUMS. If insurance premiums payable by Landlord
or any other tenant are increased as a result of any breach of Tenant's
obligations under this Lease or as a result of Tenant's use and occupancy
of the Premises, Tenant shall pay to Landlord an amount equal to any
increase in such insurance premiums.
14. WAIVER OF SUBROGATION. Neither Landlord nor Tenant shall be liable to
the other for any business interruption or any loss or damage to property or in
any manner growing out of or connected with Tenant's use and occupation of the
Premises, the Building or the Property or the condition thereof, or of the
adjoining property, whether or not caused by the negligence or other fault of
Landlord or Tenant or of their respective agents, employees, subtenants,
licensees or assignees; provided, however, that this release shall apply only to
the extent that such business interruption or loss or damage is covered by
insurance, regardless of whether such insurance is payable to or protects
Landlord or Tenant or both. Nothing in this Paragraph 14 shall be construed to
impose any other or greater liability upon either Landlord or Tenant than would
have existed in the absence hereof. Because this Paragraph 14 will preclude the
assignment of any claim mentioned in it by way of subrogation (or otherwise) to
an insurance company (or any other person), each party to this Lease agrees
immediately to give to each insurance company that has issued to its policies of
fire and extended coverage insurance, written notice of the terms of the mutual
waivers contained in this paragraph, and to have the insurance policies properly
endorsed, if necessary, to prevent the invalidation of the insurance coverages
because of the mutual waivers contained in this Paragraph 14.
15. HOLDING OVER. If Tenant retains possession of the Premises or any
part thereof after the termination of this Lease, Tenant shall, from that day
forward, be a tenant from month to month and Tenant shall pay Landlord rent at
two (2) times the monthly rate in effect immediately prior to the termination of
this Lease for the time the Tenant remains in possession. No acceptance of rent
by, or other act or statement whatsoever on the part of the Landlord or its
agent or employee, in the absence of a writing signed by the Landlord, shall be
construed as an extension of or as a consent for further occupancy. Tenant
shall indemnify Landlord for all damages, consequential as well as direct,
sustained by reason of Tenant's retention of possession. The provisions of this
Paragraph 15 do not exclude pursuit of Landlord's right of re-entry or any other
right hereunder.
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16. ASSIGNMENT AND SUBLEASE.
(a) PROHIBITION. Tenant shall not assign, convey, mortgage, pledge,
encumber or otherwise transfer this Lease or any interest therein, sublet
the Premises or any part thereof, or permit the use or occupancy of the
Premises or any part thereof by anyone other than Tenant, without receiving
Landlord's prior written consent, which consent shall not be unreasonably
withheld or delayed. Any purported transfer, encumbrance, pledge,
mortgage, assignment or subletting not in compliance herewith shall be void
and of no force or effect. In the event of any assignment, subletting,
transfer or occupancy by someone other than Tenant, whether or not
expressly or impliedly approved by Landlord, Tenant shall, nevertheless, at
all times, remain fully responsible and jointly and severally liable for
the payment of the rent and for compliance with all other obligations
imposed upon Tenant under the terms, provisions and covenants of this
Lease. Any assignment or sublease shall contain a provision whereby the
assignee or subtenant agrees to comply with and be bound by all of the
terms, covenants, conditions, provisions and agreements of this Lease to
the extent applicable, and Tenant shall deliver to Landlord, promptly
after execution, an executed copy of each assignment or sublease and an
agreement of compliance by each assignee or subtenant. Any sublease shall
also contain a provision that in the event of default by Tenant hereunder
and a termination of this Lease by Landlord, such subtenant shall, at
Landlord's option, attorn to Landlord as if Landlord were the lessor under
the sublease.
(b) OPTION TO CANCEL. Upon receipt of Tenant's written request for
Landlord's consent to subletting, assignment, transfer or occupancy by
someone other than Tenant, Landlord shall have the option to cancel this
Lease as of the date the requested subletting, assignment, transfer or
occupancy by someone other than Tenant is to be effective. Landlord shall
exercise its option to cancel this Lease by written notice to Tenant within
thirty (30) days after Landlord receives Tenant's request for Landlord's
consent.
(c) RIGHT TO COLLECT RENTS DIRECTLY. Upon the occurrence of an
"event of default" as set forth in Paragraph 21 hereof, if all or any part
of the Premises is then assigned, sublet, transferred or occupied by
someone other than Tenant, then, in addition to any other remedies provided
in this Lease or provided by law, Landlord, at its option, may collect
directly from the assignee, subtenant, transferee or occupant all rent
becoming due to Tenant by reason of the assignment, sublease, transfer or
occupancy. Any collection directly by Landlord from the assignee or
subtenant shall not be construed to constitute a novation or a release of
Tenant from the further performance of its obligations under this Lease.
(d) EXCESS RENT. If Tenant assigns this lease or sublets all or a
portion of the Premises for an amount in excess of the Base Rental,
additional rental and other charges (or the pro rata share of all such
rental in the case of a sublease of a portion of the Premises), the Tenant
shall pay to Landlord, as rent, one hundred percent (100%) of such excess
received by Tenant.
17. QUIET ENJOYMENT. If Tenant shall pay the rents and other sums due to
be paid by Tenant hereunder as and when the same become due and payable, and if
Tenant shall keep, observe and perform, Tenant shall, at all times during the
Term herein granted, peacefully and quietly have and enjoy possession of the
Premises without any encumbrance or hindrance by, from or through Landlord,
except for regulations imposed by any governmental or quasi-governmental agency
on the occupancy of Tenant or the conduct of Tenant's business operations.
18. COMPLIANCE WITH LAWS AND WITH RULES AND REGULATIONS.
(a) LAWS. Tenant, at its sole cost and expense, shall procure any
permits and licences required for the transaction of Tenant's business in
the Premises. Tenant, at its sole cost and expense, shall promptly observe
and comply with all present and future laws, ordinances, requirements,
orders, directives, rules and regulations of all state, federal, municipal
and other agencies or bodies having jurisdiction relating to the use,
condition and occupancy of the Premises, the Building and the Property at
any time in force, applicable to the Premises or to
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Tenant's use thereof, except that Tenant shall not be under any obligation
to comply with any law, ordinance, rule or regulation requiring any
structural alteration of the Premises, unless such alteration is required
because of a condition that has been created by, or at the instance of,
Tenant, or is required by reason of a breach of any of Tenant's covenants
and agreements under this Lease. Landlord shall not be required to repair
any injury or damage by fire or other cause, or to make any repairs or
replacements of any panels, decoration, office fixtures, railing, ceiling,
floor covering, partitions, or any other property installed in the Premises
by Tenant.
(b) RULES AND REGULATIONS. Tenant shall comply with all rules and
regulations for the Building, which current rules and regulations are
attached hereto as Exhibit F and with such reasonable modifications thereof
and additions thereto as Landlord may make hereafter, from time to time.
Notwithstanding anything contained in this Lease, Landlord shall not be
responsible nor liable to Tenant, it agents, representatives, employees,
invitees or licensees, for the nonobservance by any other tenant of any
rules and regulations.
19. FIRE AND CASUALTY.
(a) If the Premises or the Building or any substantial part of either
is damaged or destroyed by fire or other casualty, cause or condition
whatsoever, and such damage or destruction cannot be repaired within one
hundred twenty days (120) days, Landlord or Tenant may terminate this
Lease, by written notice to the other party given within thirty (30) days
after such damage. If the Premises are damaged or destroyed or access
thereto or use thereof is affected by the damage, then Landlord's or Tenant
termination shall be effective as of the date of such damage; otherwise
said termination shall be effective thirty (30) days after such notice.
(b) If the Common Areas in the Building are damaged or destroyed by
fire or other casualty, cause or condition whatsoever, to such an extent as
to substantially interfere with Tenant's use of the Premises or if the
Premises or a substantial part thereof are made untenantable, and such
damage or destruction cannot be repaired within one hundred twenty (120)
days, then Tenant may terminate this Lease by giving written notice to
Landlord within thirty (30) days after such damage, said termination to be
effective as of the date of such damage.
(c) Unless this Lease is terminated as herein above provided,
Landlord shall proceed with due diligence to restore, repair and replace
the Premises and the Building to the same condition as they were in as of
the Commencement Date. Provided such damage or destruction was not caused
or contributed to by an intentional act or negligence of Tenant, its
agents, employees, invitees or those for whom Tenant is responsible, from
and after the date of such damage to date of completion of said repairs,
replacements and restorations, a just proportion of the rent shall abate
according to the extent the full use and enjoyment of the Premises are
rendered impossible by reason of such damage. Landlord shall be under no
duty to restore any alterations, improvements or additions made by Tenant.
In all cases, due allowance shall be given to Landlord for any reasonable
delays caused by adjustment of insurance loss, strikes, labor difficulties
or any cause beyond Landlord's control.
20. EMINENT DOMAIN
(a) If all the Premises or a substantial part thereof shall be taken
for any public or quasi-public use under any statute or by rights of
eminent domain or by private purchase in lieu thereof, this Lease shall
terminate as of the date of vesting of title. Landlord shall be entitled
to receive the entire award paid for such taking or condemnation, Tenant
hereby assigning to Landlord all Tenant's rights, title and interest
therein, if any. Nothing contained herein shall be deemed to give Landlord
any interest in or to require Tenant to assign to Landlord any award made
to Tenant for the taking of personal property or fixtures belonging to
Tenant, for the interruption of or damage to Tenant's business or for
Tenant's moving expenses but only if such award shall be in addition to the
award for the Property and the Building (or portion thereof) containing the
Premises.
(b) If fifty percent (50%) or more of the Building other than the
Premises shall be condemned, taken or purchased in lieu thereof, then
Landlord may terminate this Lease by notifying Tenant of such termination
within sixty (60) days after the date of vesting of title. This Lease
shall expire on the date specified in such notice of
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termination, which date shall be not less than sixty (60) days after the
giving of such notice. The rent hereunder shall be apportioned as of such
termination date.
(c) If more than thirty percent (30%) of the surface parking area of
the Property is condemned, taken or purchased in lieu thereof, either party
shall have the right to terminate this Lease upon giving written notice to
the other party within thirty (30) days of such taking and this Lease shall
terminate thirty (30) days after the date of such notice.
(d) Any such taking, condemnation or temporary requisition which does
not result in a termination of this Lease, as hereinbefore provided in this
Paragraph 20, shall not be cause for any reduction or diminution of the
rental payment hereunder.
21. DEFAULT.
(a) If (i) Tenant fails to pay within five (5) days after notice any
rent, or any other sums required to be paid hereunder by Tenant; or (ii)
Tenant defaults in the performance or observance of any other agreement or
condition on its part to be performed or observed, and Tenant shall fail to
cure said default within twenty (20) days after receipt of written notice
thereof by Landlord within such longer period of time as may be required to
cure so long as Tenant commences such cure within twenty (20) days and
diligently proceeds to cure, Tenant files a voluntary petition in
bankruptcy or is adjudicated a bankrupt or insolvent, or files any petition
or answer seeking any arrangement, composition, liquidation or dissolution
under any present or future federal, state or other statute, law or
regulation relating to bankruptcy, insolvency or other relief for debtors
or seeks or consents to or acquiesces in the appointment of any trustee,
receiver or liquidator of Tenant or of all or any substantial part of its
properties, or of the Premises, or makes any general assignment for the
benefit of creditors, or admits in writing its inability to pay its debts
generally as they become due; or (iv) a court enters ;an order, judgment or
decree approving a petition filed against Tenant seeking any arrangement,
composition, liquidation, dissolution or similar relief under any present
or future federal, state or other statute, law or regulation relating to
bankruptcy, insolvency or other relief for debtors, and such order,
judgment or decree shall remain unvacated or unstayed for an aggregate of
sixty (60) days (whether or not consecutive); or (vi) Tenant fails to
operate or closes its business upon the Premises, for reasons other than
fire or other casualty or condemnation, for a period of fifteen (15)
consecutive days; or (vii) Tenant abandons or vacates the Premises; then in
any such event and at any time thereafter, Landlord may, without further
notice to Tenant, and in addition to and not in lieu of any other rights or
remedies available to Landlord at law or in equity, exercise any one or
more of the following rights:
(i) Landlord may (A) terminate this Lease and the tenancy
created hereby by giving notice of such election to Tenant, and (B)
reenter the Premises, by summary proceedings or otherwise, remove
Tenant and all other persons and property from the Premises and store
such property in a public warehouse or elsewhere at the sole cost and
expense of and for the account of Tenant without Landlord being deemed
guilty of trespass or becoming liable for any loss or damage
occasioned thereby.
(ii) Landlord may reenter and take possession of the Premises,
without terminating this Lease and without relieving Tenant of its
obligations under this Lease, and divide or subdivide the Premises in
any manner Landlord may desire and lease or let the Premises or
portions thereof, alone or together with other premises, for such term
or terms (which may be greater or less than the balance of the
remaining portion of the Term of this Lease) and on such terms and
conditions (which may include concessions or free rent and alterations
of the Premises) as Landlord, in its discretion, may determine.
(b) If this Lease is terminated by Landlord pursuant to this
Paragraph 21, Tenant nevertheless shall remain liable for any Base Rental,
Additional Rental, Other Charges required to be paid hereunder and damages
that may be due or sustained prior to such termination, and for all
reasonable costs, fees and expenses incurred by Landlord in pursuit of its
remedies hereunder, including attorneys', brokers' and other professional
fees (all such
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rents, damages, costs, fees and expenses being referred to herein
collectively as "Termination Damages") plus additional damages (the
"Liquidated Damages") which are hereby stipulated to be equal to the
present value of Base Rental, Additional Rental and Other Charges required
to be paid hereunder that, but for termination of this Lease, would have
become due during the remainder of the Term, plus the unamortized portion
of tenant inprovements and leasing commissions, less the fair market rental
rate for the remainder of the Term of this Lease discounted at the current
five (5) year treasure bill rate. Termination Damages and Liquidated
Damages shall be due and payable immediately upon demand by Landlord
following any termination of this Lease pursuant to this Paragraph 21.
(c) If Landlord reenters and takes possession of the Premises
pursuant to this Paragraph 21, without terminating this Lease, and relets
the Premises or any part thereof (which Landlord shall have no obligation
to do), the net rentals from such letting shall be applied first to the
costs, fees and expenses incurred by Landlord in pursuit of its remedies
hereunder, including attorneys', brokers' and other professional fees, in
renting the Premises or part thereof to others from time to time (including
the cost and expense of making such improvements to the Premises as may be
necessary, in Landlord's sole discretion, to enable Landlord to relet
same). The balance, if any, shall be applied by Landlord from time to time
on account of the rent and other payments due from Tenant hereunder, with
the right reserved to Landlord to bring such actions or proceedings for the
recovery of any deficits remaining unpaid as Landlord may deem favorable
from time to time without being obligated to await the end of the Term for
the final determination of Tenant's account. Any balance remaining,
however, after full payment and liquidation of Tenant's account as
aforesaid shall be paid to Tenant with the right reserved to Landlord at
any time to give notice in writing to Tenant of Landlord's election to
cancel and terminate this Lease and the giving of such notice and the
simultaneous payment by Landlord to Tenant of any credit balance in
Tenant's favor that may at the time be owing to Tenant shall constitute a
final and effective cancellation and termination of this Lease and the
obligations hereunder on the part of either party to the other. Landlord
shall not be liable for, nor shall Tenant's obligations be diminished by
reason of, any failure by Landlord to relet the Premises or any failure of
Landlord to collect any rent due upon such reletting.
(d) Upon the termination of this Lease or of Tenant's right to
possession of the Premises by lapse of time or earlier termination as
herein provided, Tenant shall remove its property from the Premises. Any
such property of Tenant not removed from the Premises by Tenant within
thirty (30) days after the end of the term or of Tenant's right to
possession of the Premises, however terminated, whichever occurs earlier,
shall be conclusively deemed to have been forever abandoned by Tenant and
either may be retained by Landlord as its property or may be disposed of in
such manner as Landlord may see fit.
(e) Notwithstanding anything contained herein, if Landlord shall have
given written notice of three (3) defaults in any twelve (12) month period,
no further prior notice by Landlord shall be required for Landlord to
declare this Lease to be in default.
(f) If Tenant at any time fails to make any payment or perform any
other act on its part to be made or performed under this Lease, Landlord
may, but shall not be obligated to, and after reasonable notice or demand
and without waiving or releasing Tenant from any obligations under this
Lease, make such payment or perform such other act to the extent Landlord
may deem desirable, and in connection therewith to pay expenses and employ
counsel. Tenant shall pay upon demand all of Landlord's costs, charges and
expenses, including the fees of counsel, agents and others retained by
Landlord, incurred in enforcing Tenant's obligations hereunder or incurred
by Landlord in any litigation, negotiations or transactions in which Tenant
causes Landlord, without Landlord's fault, to become involved or concerned,
which amount shall be deemed to be rent due and payable by Tenant, upon
demand by Landlord, and Landlord shall have the same rights and remedies
for the nonpayment thereof, as in the case of default in the payment of
rent.
(g) All rights and remedies of Landlord herein enumerated shall be
cumulative, and none shall exclude any other right or remedy allowed by
law. In addition to the other remedies in this Lease provided, Landlord
shall be entitled to the restraint by injunction of the violation or
attempted violation of any of the covenants, agreements or conditions of
this Lease.
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22. WAIVER OF DEFAULT OR REMEDY. No waiver of any covenant or condition
or of the breach of any covenant or condition of this Lease shall be taken to
constitute a waiver of any subsequent breach of such covenant or condition nor
to justify or authorize the nonobservance of any other occasion of the same or
of any other covenant or condition hereof, nor shall the acceptance of rent by
Landlord at any time when Tenant is in default under any covenant or condition
hereof be construed as a waiver of such default or of Landlord's right to
terminate this Lease on account of such default, nor shall any waiver or
indulgence granted by Landlord to Tenant be taken as an estoppel against
Landlord, it being expressly understood that if at any time Tenant shall be in
default in any of its covenants or conditions hereunder an acceptance by
Landlord of rental during the continuance of such default or the failure on the
part of Landlord promptly to avail itself of such rights or remedies as Landlord
may have, shall not be construed as a waiver of such default, but Landlord may
at any time thereafter, if such default continues, terminate this Lease or
assert any other rights or remedies available to it on account of such default
in the manner hereinbefore provided.
23. LANDLORD'S LIEN. As security for Tenant's payment of rent, damages
and all other payments required to be made by Tenant pursuant to this Lease,
Tenant hereby grants to Landlord a lien upon all property of Tenant now or
subsequently located upon the Premises. If Tenant abandons or vacates any
substantial portion of the Premises or is in default in the payment of any
rental, if such default is not cured within applicable notice or cure periods
damage or other payments required to be made pursuant to this Lease, Landlord
may enter upon the Premises, by force if necessary, and take possession of all
or any part of the personal property, and may sell all or part of the personal
property at a public or private sale, in one or successive sales, with or
without notice, to the highest bidder for cash, and, on behalf of Tenant, sell
and convey all or part of the personal property delivering to the highest bidder
all of Tenant's title and interest in the personal property sold. The proceeds
of the sale of the personal property shall be applied by Landlord toward the
cost of the sale and then toward the payment of all sums then due by Tenant to
Landlord pursuant to the terms of this Lease.
25. FORCE MAJEURE. If Landlord or Tenant shall be delayed, hindered in or
prevented from the performance of any act required hereunder (other than the
payment of rent and other charges payable by Tenant) by reason of strikes,
lockouts, labor troubles, inability to procure materials, failure of power,
riots, insurrection, the act, failure to act or default of the other party, war
or any other reason beyond the reasonable control of the party who is seeking
additional time for the performance of such act, then performance of such act
shall be excused for the period of the delay and the period for the performance
of such act shall be extended for a reasonable period, in no event to exceed a
period equivalent to the period of such delay. No such interruption of any
service to be provided by Landlord shall ever be deemed to be an eviction,
actual or constructive, or disturbance of Tenant's use and possession of the
Premises, the Building or the Property.
26. SUBORDINATION OF LEASE.
(a) Landlord reserves the right and privilege to subject and
subordinate this Lease to any and all mortgages, deeds of trust or land
leases now existing upon or that may be hereafter placed upon the Premises
and the Property and to all advances made or to be made thereon and all
renewals, modifications, consolidations, replacements or extensions thereof
and if such right is exercised, the lien of any such mortgages, deeds of
trust or land leases shall be superior to all rights hereby or hereunder
vested in Tenant, to the full extent of all sums secured thereby. In
confirmation of such subordination, Tenant shall, on request of Landlord or
the holder of any such mortgages, deed(s) of trust and land leases, execute
and deliver to Landlord within ten (10) days any instrument that Landlord
or such holder may reasonably request.
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(b) If the interest of Landlord under this Lease shall be transferred
by reason of foreclosure, deed in lieu of foreclosure, or other proceedings
for enforcement of any first mortgage or deed of trust on the Premises,
Tenant shall be bound to the transferee (the "Purchaser") under the terms,
covenants and conditions of this Lease for the balance of the Term
remaining, and any extensions or renewals, with the same force and effect
as if the Purchaser were the landlord under this Lease, and at the option
of Purchaser, Tenant shall attorn to the Purchaser (including the mortgagee
under any such mortgage, if it be the Purchaser), as its landlord, the
attornment to be effective and self-operative without the execution of any
further instruments upon the Purchaser succeeding to the interest of
Landlord under this Lease. The respective rights and obligations of Tenant
and the Purchaser upon the attornment, to the extent of the then remaining
balance of the Term of this Lease, and any extensions and renewals, shall
be and are the same as those set forth in this Lease.
27. NOTICES AND CONSENTS. All notices, demands, requests, consents and
approvals that may or are required to be given by either party to the other
shall be in writing and shall be deemed given when sent by United States
certified or registered mail, postage prepaid, or by overnight courier (a) if
for Tenant, addressed to Tenant at the Building, or at such other place as
Tenant may from time to time designate by notice to Landlord, or (b) if for
Landlord, addressed to Trammell Crow Company, 301 Congress Avenue, Suite 1300,
Austin, Texas 78701 Attention: Stan Erwin with a copy to Landlord, c/o OTR,
275 East Broad Street, Columbus, Ohio 43215, Attention: Real Estate Manager, or
at such other place as Landlord may from time to time designate by notice to
Tenant. All consents and approvals provided for herein must be in writing to be
valid. Notice shall be deemed to have been given if addressed and mailed as
above provided on the date two (2) days after deposit in the United States mail
or one (1) day after deposit with an overnight courier.
28. SECURITY DEPOSIT.
(a) Tenant has deposited with Landlord the sum of TEN THOUSAND ONE
HUNDRED SEVENTY ONE DOLLARS & 95/100 ($10,171.95) as security for the full
and faithful performance of every provision of this Lease to be performed
by Tenant. If Tenant defaults with respect to any provision of this Lease,
including, but not limited to, the provisions relating to the payment of
rent, Landlord may use, apply or retain all or any part of this security
deposit for the payment of any rent or any other sum in default or for the
payment of any other amount that Landlord may spend or become obligated to
spend by reason of Tenant's default, or to compensate Landlord for any
other loss, cost or damage that Landlord may suffer by reason of Tenant's
default. If any portion of said deposit is so used or applied, Tenant
shall, within five (5) days after written demand therefor, deposit cash
with Landlord in an amount sufficient to restore the security deposit
to its original amount and Tenant's failure to do so shall be a default
under this Lease. Landlord shall not, unless otherwise required by law, be
required to keep this security deposit separate from Landlord's general
funds, nor pay interest to Tenant. If Landlord is required by law to
maintain said deposit in an interest bearing account, Landlord will retain
the maximum amount permitted under applicable law as a bookkeeping and
administrative charge. If Tenant shall fully and faithfully perform every
provision of this Lease to be performed by it, the security deposit or any
balance thereof shall be returned to Tenant (or, at Landlord's option, to
the last transferee of Tenant's interest hereunder) at the expiration of
the Lease Term and upon Tenant's vacation of the Premises. In the event of
bankruptcy or other debtor-creditor proceedings against Tenant, such
security deposit shall be deemed to be applied first to the payment of rent
and other charges due Landlord for all periods prior to filing of such
proceedings.
(b) Landlord may deliver the security deposit to the purchaser of
Landlord's interest in the Premises in the event that such interest be sold
and thereupon Landlord shall be discharged from any further liability with
respect to such deposit, and this provision shall also apply to any
subsequent transferees of Landlord.
29. MISCELLANEOUS TAXES. Tenant shall pay, prior to delinquency, all
taxes assessed against or levied upon its occupancy of the Premises, or upon the
fixtures, furnishings, equipment and all other personal property of Tenant
located in the Premises, if nonpayment thereof shall give rise to a lien on the
Premises, and when possible Tenant shall cause said fixtures, furnishings,
equipment and other personal property to be assessed and billed separately from
the property of Landlord. In the event any or all of Tenant's fixtures,
furnishing, equipment and other personal property, or upon Tenant's occupancy of
the Premises, shall be assessed and taxed with the property of Landlord, Tenant
shall pay to Landlord its share
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of such taxes within ten (10) days after delivery to Tenant by Landlord of a
statement in writing setting forth the amount of such taxes applicable to
Tenant's fixtures, furnishings, equipment or personal property.
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31. BROKERAGE COMMISSION. Except for any broker, agent or other person
named below, Landlord and Tenant represent and warrant each to the other that
each has dealt with no broker, agent or other person in connection with this
transaction and that no broker, agent or other person brought about this
transaction. Landlord hereby agrees to pay to TRAMMEL CROW MANAGEMENT COMPANY,
INC. ("Agent") a leasing commission as set forth in that certain Property
Management Agreement between Landlord and Agent. Tenant agrees to indemnify and
hold Landlord harmless from and against any claims by any other broker, agent or
other person (including, without limitation, Co-op Broker) claiming a commission
or other form of compensation by virtue of having dealt with Tenant with regard
to this leasing transaction. The provisions of this Paragraph 31 shall survive
the termination of this Lease.
32. HAZARDOUS DEVICES AND CONTAMINENTS.
(a) PROHIBITION. Except with the prior written consent of Landlord,
Tenant shall not install or operate any steam or internal combustion
engine, boiler, machinery, refrigerating or heating device or air-
conditioning apparatus in or about the Premises, or carry on any mechanical
business therein. Except for Contaminants (as hereinafter defined) used in
the ordinary course of business and in compliance with Requirements of Law
(as hereinafter defined), Tenant and its agents, employees, contractors and
invitees shall not use, store, release, generate or depose of or permit to
be used, stored, released, generated or disposed of any Contaminants on or
in the Premises.
(b) INDEMNIFICATION. Tenant shall indemnify and hold harmless
Landlord, its agents, servants, employees, officers and directors forever
from and against any and all liability, claims, demands and causes of
action, including, but not limited to, any and all liability, claims,
demands and causes of action by any governmental authority, property owner
or any other third person and any and all expenses, including attorneys'
fees (including, but not limited to, attorneys' fees to enforce Tenant's
obligation of indemnification under this Paragraph 32(b)), relating to any
environmental liability resulting from (i) any Release (as hereinafter
defined) of any Contaminant at the Premises or emanating from the Premises
to adjacent properties or the surrounding environment during the Term of
this Lease; (ii) during the Term of this Lease, any generation, transport,
storage, disposal, treatment or other handling of any Contaminant at the
Premises, including, but not limited to, any and all off-site transport,
storage, disposal, treatment or other handling of any Contaminant
generated, produced, used and/or originating in whole or in part from the
Premises; and (iii) any activities at the Premises during the Term of this
Lease that in any way might be alleged to fail to comply with any
Requirements of Law. Provided however, this indemnity shall exclude
preexisting conditions, as of the date of this lease, and any such
environmental liability to the extent caused by the negligent act of
omission of Landlord or its servants, agents or employees.
20
(d) DEFINITIONS.
(i) "Contaminant" shall mean any substance or waste containing
hazardous substances, pollutants, and contaminants as those terms are
defined in the federal Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. and any
substance similarly defined or identified in any other federal,
provincial or state laws, rules or regulations governing the
manufacture, import, use, handling, storage, processing, release or
disposal of substances or wastes deemed hazardous, toxic, dangerous or
injurious to public health or to the environment. This definition
includes friable asbestos and petroleum or petroleum-based products.
(ii) "Requirements of Law" shall mean any federal, state or
local law, rule, regulation, permit, agreement, order or other binding
determination of any governmental authority relating to the
environment, health or safety.
(iii) "Release" shall have the same meaning as in the federal
Comprehensive Environmental Response Compensation and Liability Act,
42 U.S.C. Section 9601, et seq.
33. EXCULPATION. This Lease is executed by certain general partners of
Landlord, not individually, but solely on behalf of, and as the authorized
nominee and agent for STRBO, and in consideration for entering into this Lease,
Tenant hereby waives any rights to bring a cause of action against the
individuals executing this Lease on behalf of Landlord (except for any cause of
action based upon lack of authority or fraud), and all persons dealing with
Landlord must look solely to STRBO's assets for the enforcement of any claim
against Landlord, and the obligations hereunder are not binding upon, nor shall
resort be had to the private property of any of, the trustees, officers,
directors, employees or agents of STRBO.
34. SIGNS. Tenant shall not display, inscribe, print, paint, maintain or
affix on any place in or about the Building any sign, notice, legend, direction,
figure or advertisement, except on the doors of the Premises, and then only such
name(s) and matter, and in such color, size, place and materials, as shall first
have been approved by Landlord in writing. Landlord reserves the right to
install and maintain a sign or signs on the exterior or interior of the
Building. If Tenant desires, Landlord shall list Tenant on the Building
directory board, at Tenant's sole cost and expense.
35. LOCKS. No additional locks or similar devices shall be attached to
any door or window without Landlord's prior written consent. Except for those
keys provided by Landlord, no keys for any door shall be made. If more than two
keys for one lock are desired, Landlord will provide the same upon payment by
Tenant. All keys must be returned to Landlord at the expiration or Termination
of this Lease. Tenant shall see that the doors and windows, if operable, of the
Premises are closed and securely locked before leaving the Building.
36. EMPLOYMENT. Tenant shall not contract for any work or service that
might involve the employment of labor incompatible with the Building employees
or employees of contractors doing work or performing services by or on behalf of
Landlord.
37. PLUMBING. Tenant must observe strict care and caution that all water
faucets and water apparatus are shut off before Tenant or its employees leave
the Building to prevent waste or damage. Plumbing fixtures and appliances shall
be used only for purposes for which constructed, and no sweepings, rubbish, rags
or other unsuitable material shall be thrown or placed therein. Damage
resulting to any such fixtures or appliances from misuse by Tenant shall be paid
by Tenant and Landlord shall not in any case be responsible therefor.
38. CERTAIN RIGHTS RESERVED TO LANDLORD. Landlord reserves the following
rights:
(a) To name the Building and to change the name or street address of
the Building;
21
(b) To designate all sources furnishing sign painting and lettering,
ice, drinking water, towels, toilet supplies, shoe shining, vending
machines, mobile vending service, catering, and like services used on the
Premises or in the Building;
(c) On reasonable prior notice to Tenant, to exhibit the Premises to
prospective tenants during the last twelve (12) months of the Term, and to
exhibit the Premises to any prospective purchaser, mortgagee, or assignee
of any mortgage on the Property and to others having a legitimate interest
at any time during the Term; and
(d) To install vending machines of all kinds in the Property,
including, without limitation, the Premises, and to provide mobile vending
service therefor, and to receive all of the revenue derived therefrom;
provided, however, that no vending machines shall be installed by Landlord
in the Premises nor shall any mobile vending services be provided therefor,
unless Tenant so requests.
39. MISCELLANEOUS.
(a) No receipt of money by Landlord from Tenant after the termination
of this Lease or after the service of any notice or after the commencement
of any suit, or after final judgment for possession of the Premises shall
reinstate, continue or extend the Terms of this Lease or affect any such
notice, demand or suit or imply consent for any action for which Landlord's
consent is required.
(b) The term "Landlord" as used in this Lease, as far as covenants or
agreements on the part of Landlord are concerned, shall be limited to mean
and include only the owner (or ground lessor, as the case may be) for the
time being of the Premises. If the Premises or the underlying lease, if
any, be sold or transferred, the seller thereof shall be automatically and
entirely released of all covenants and obligations under this Lease from
and after the date of conveyance or transfer, provided the purchaser on
such sale has assumed and agreed to carry out all covenants and obligations
contained in this Lease to be performed on the part of Landlord hereunder,
it being hereby agreed that the covenants and obligations, contained in
this Lease to be performed on the part of Landlord, hereunder it being
hereby agreed that the covenants and obligations contained in this Lease
shall be binding under Landlord, its successors and assigns, only during
their respective successive period of ownership.
(c) It is understood that Landlord may occupy portions of the
Building in the conduct of Landlord's business. In such event, all
references herein to other tenants of the Building shall be deemed to
include Landlord as occupant.
(d) All of the covenants of Tenant hereunder shall be deemed and
construed to be "conditions" as well as "covenants" as though the words
specifically expressing or implying covenants and conditions were used in
each separate instance.
(e) In the event of variation or discrepancy among counterparts,
Landlord's original copy of this Lease shall control.
(f) This Lease shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and assigns, provided
that this provision shall in no manner enlarge Tenant's rights of
assignment, which right of assignment has been restricted under the
foregoing provisions of this Lease.
40. RELATIONSHIP OF PARTIES. Any intention to create a joint venture,
partnership or principal and agent relationship between the parties hereto is
hereby expressly disclaimed. This Lease shall create the relationship of
landlord and tenant between Landlord and Tenant.
41. GENDER AND NUMBER. Whenever words are used herein in any gender, they
shall be construed as though they were used in the gender appropriate to the
context and circumstances, and whenever words are used herein in the singular or
plural form, they shall be construed as though they were used in the form
appropriate to the context and the circumstances.
22
42. TOPIC HEADINGS. Headings and captions in this Lease are inserted for
convenience and reference only and in no way define, limit or describe the scope
or intent of this Lease nor constitute any part of this Lease and are not to be
considered in the construction of this Lease.
43. COUNTERPARTS. Several copies of this Lease may be executed by all of
the parties. All executed copies constitute one and the same Lease, binding
upon all parties.
44. ENTIRE AGREEMENT. This Lease contains the entire understanding
between the parties and supersedes any prior understanding or agreements between
them respecting the subject matter. No representations, arrangement, or
understandings except those fully expressed herein, are or shall be binding upon
the parties. No changes, alterations, modifications, additions or
qualifications to the terms of this Lease shall be made or be binding unless
made in writing and signed by each of the parties.
45. RECORDING. The parties agree that this Lease shall not be recorded,
but a Short Form Lease or Memorandum of Lease, complying in form with applicable
state law, shall be executed setting forth the description of the Premises, the
Term of this Lease and other pertinent provisions, which Short Form Lease or
Memorandum of Lease may be recorded by either party in lieu of recordation of
this Lease.
46. GOVERNING LAW; INVALIDITY OF ANY PROVISIONS. This Lease shall be
subject to and governed by the laws of the state in which the Premises are
located. If any term or provision of this Lease or the application thereof to
any person or circumstances shall to any extent be invalid or unenforceable, the
other terms of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and
year first above written.
TENANT: LANDLORD:
NOVELLUS SYSTEMS, INC. OTR, an Ohio general partnership, acting
as the duly authorized nominee of the
BOARD OF THE STATE TEACHES RETIREMENT SYSTEM OF OHIO
/s/John P. Root By: /s/?
- ------------------------------------- ----------------------------------------
OTR, a general partner
------------------
Witness: Witness:
/s/ Robert E. Standish /s/ Pamela J. McCamron
- ----------------------------------- ----------------------------------------
5375 Branciforte Dr. /s/ Hollie ?
- ----------------------------------- ----------------------------------------
Santa Cruz, CA 95065
- -----------------------------------
23
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
STATE OF CALIFORNIA }
} ss.
COUNTY OF }
On this 25TH day of APRIL, 1995 Before me, R.E. Standish, Notary Public,
personally appeared JOHN P. ROOT
/ / Personally known to me-OR-/X/ proved to me on the basis of satisfactory
evidence to be the person /s whose name /s is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacities, and that by his/her/their signature /s on
the instrument the person /s or the entity upon behalf of which the person /s
acted, executed the instrument.
[SEAL]
WITNESS my hand and official seal
/s/ R. E. Standish
--------------------------------------------
R. E. Standish, Notary Public
(SEAL)
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED BELOW:
TITLE OR TYPE OF DOCUMENT LEASE
-----------------------------------------------------
NUMBER OF PAGES THIRTY-SEVEN (37) DATE OF DOCUMENT APRIL 25, 1995
------------------ ----------------------
SIGNER(S) OTHER THAN NAMED ABOVE OTR
----------------------------------------------
/ / INDIVIDUAL /x/ CORPORATE OFFICER(S) TITLE(S) TREASURER
--------------------
/ / PARTNER(S) / / LIMITED
/ / GENERAL
/ / ATTORNEY-IN-FACT
/ / TRUSTEE(S) / / TRUSTOR(S) / / BENEFICIARY(S)
/ / GUARDIAN/CONSERVATOR
/ / OTHER:
----------------------------------------------------------------------
SIGNER IS REPRESENTING: NOVELLUS
--------------------------------------------------------
STATE OF OHIO )
) SS:
COUNTY OF )
BE IT REMEMBERED, that on this 26th day of MAY, 1995 before me, the
subscriber, a Notary Public, personally appeared the above-named OTR, an Ohio
general partnership by STEPHEN A. MITCHELL, a general partner, known to me and
known to me to be the person who signed the foregoing instrument as such
partner, who acknowledged to me that he signed said instrument as such partner,
duly authorized by the partnership so to do, and that the signing of the same
was his free act and deed, as such partner, for and on behalf of said
partnership, for the uses and purposes therein set forth.
IN TESTIMONY WHEREOF, I have hereunto subscribed by name and affixed the
official seal of my office at COLUMBUS, OHIO, on the day and year last above
written.
[SEAL]
Pamela J. McCamron
----------------------------------------
Notary Public
STATE OF____________ )
) SS:
COUNTY OF __________ )
BE IT REMEMBERED, that on this ____ day of ___, 19__ before me, the
subscriber, a Notary Public, personally appeared the above-named _______________
organized under the laws of the State of _______________ by ___________________,
its _________________, known to me to be the person who signed the foregoing
instrument as such ___________, who acknowledged to me that ________ signed said
instrument as such ___________, duly authorized by the _________________________
of said ___________________ so to do, and that the signing of the same was _____
free act and deed, as such officer, for and on behalf of said _________________,
for the uses and purposes therein set forth.
IN TESTIMONY WHEREOF, I have hereunto subscribed by name and affixed the
official seal of my office at ______________, _______________, on the day and
year last above written.
----------------------------------------
Notary Public
24
EXHIBIT A
[FLOOR PLAN CHART]
EXHIBIT B
LEGAL DESCRIPTION
Lot 1 and a portion of Lot 2 of Crow Industrial Park South, Section Two, Plat
Book 81, Page 135, Plat Records of Travis County, Texas, more commonly referred
to as 1701 Directors Boulevard, Austin, Texas 78744.
EXHIBIT C
COMMENCEMENT DATE AGREEMENT
THIS COMMENCEMENT DATE AGREEMENT ("Agreement") dated __________, 199_ is
between OTR, an Ohio general partnership, whose address is 275 East Broad
Street, Columbus, Ohio 43215, acting as the duly authorized nominee of The State
Teachers Retirement System of Ohio ("Landlord"), whose address is 275 East Broad
Street, Columbus, Ohio 43215, and ____________________________, a ______________
("Tenant") whose address is ________________________________.
WITNESSETH:
A. Landlord and Tenant executed a certain Lease dated ________, 199_ (the
"Lease").
B. The Lease provides that the Lease will commence on the date that
Landlord delivers possession of the Premises (as defined in the Lease) to
Tenant.
C. Landlord and Tenant now desire to set forth in writing the actual date
of delivery of the Premises and the actual commencement date of the Lease.
NOW THEREFORE in consideration of the mutual covenants and promises
contained herein and other valuable consideration, the parties agree that the
Lease commenced on ___________, 199_ and shall terminate on ___________, ______.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on the day and year first above written.
Signed and Acknowledged LANDLORD: OTR, an Ohio general
the Presence of partnership acting as the duly
authorized nominee of The State
Teachers Retirement System of Ohio
__________________________________ By: _______________________________
___________________________________
____________________, a general partner
TENANT:
________________________________________
__________________ a ___________________
___________________________________ By: ____________________________________
___________________________________
Its: __________________________________
Exhibit C - Page 1
STATE OF OHIO )
) SS:
COUNTY OF FRANKLIN )
BE IT REMEMBERED, that on this ____ day of ___________, 199_, before me,
the subscriber, a Notary Public, personally appeared the above-named OTR, ,a
partnership organized under the laws of the State of Ohio, by Stephen A.
Mitchell, a general partner, known to me and known to me to be the person who
signed the foregoing instrument as such partner, who acknowledged to me that he
signed said instrument as such partner, duly authorized by the partnership so to
do, and that the signing of the same was his free act and deed, as such partner,
for and on behalf of said partnership, for the uses and purposes therein set
forth.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the
official seal of my office at Columbus, Ohio, on the day and year last above
written.
----------------------------------------
Notary Public
STATE OF ___________ )
) SS:
COUNTY OF __________ )
BE IT REMEMBERED, that on this ___ day ___________, 19__, before me, the
subscriber, a Notary Public and for said County and State, personally appeared
the above-named ________________ organized under the laws of the State of
_____________ by _____________________, its _________________, known to me and
known to me to be the person who signed the foregoing instrument as such
___________, who acknowledged to me that _______ signed said instrument as such
________, duly authorized by the ____________________ of said __________________
so to do, and that the signing of the same was ______ free act and deed, as such
officer, for and on behalf of said _________________, for the uses and purposes
therein set forth.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the
official seal of my office at ____________, ____________, on the day and year
last above written.
----------------------------------------
Notary Public
Exhibit C - Page 2
EXHIBIT D
TENANT IMPROVEMENTS
Subject to the conditions hereinafter set forth, Landlord will provide Tenant
with an allowance of up to $39,500 for improvements required to the premises the
"Tenant Improvement Allowance". This Tenant Improvement Allowance is meant to
be comprehensive including but not limited to architectural and engineering
fees, actual construction material and labor, and a fee of 5% of the total
construction costs to reimburse Landlord for its management of construction and
administrative costs. The Landlord neither presumes or insures that this
allowance will completely cover the improvements as contemplated by Tenant, but
it is the amount of Tenant Finish allowed based on the Basic Rental as proposed.
For all purposes hereof, the premises contain 6,916 square feet Net Rentable
Area. Tenant recognizes that all improvements to the Premises not paid for
directly by Tenant shall remain the property of the Landlord. Landlord will
recognize that any improvements that are paid for by Tenant, and evidence is
provided of such, which are not considered fixtures and can be removed without
damage to the Premises, shall remain the property of Tenant.
EXHIBIT E
TENANT ESTOPPEL CERTIFICATE
RE: Premises:
-----------------------------------
Lease Dated:
-----------------------------------
Amendment(s) Dated:
-----------------------------------
Between (Landlord)
-----------------------------------
and (Tenant)
-----------------------------------
Square Footage Leased:
-----------------------------------
Floor(s)/Suite #(s):
-----------------------------------
The undersigned, Tenant under the above-referenced lease ("Lease"),
certifies to the following:
1. We have taken possession of and accepted the Premises described above,
except as follows:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
2. The lease terms as described below are true and accurate, and the lease is
in full force and effect:
Base Rent: per year
---------------------------------------
Expense Stop: per square foot
---------------------------------------
Escalations:
---------------------------------------
Free Rent: ---------------------------------------
Commencement Date: ---------------------------------------
Expiration Date: ---------------------------------------
Renewals: ---------------------------------------
3. No part of the Premises has been subleased or assigned except as follows:
---------------------------------------------------------------------------
---------------------------------------------------------------------------
4. The rent has been paid through:
-------------------------------------------
5. The security deposit is
---------------------------------------------------
There are no tax or insurance escrows
-------------------------------------
6. We are not in default of our obligations under the Lease. Landlord, to the
best of our knowledge, is not in default of its obligations under the
Lease. There exists no defense or counterclaim to rent or other sums
required to be paid by us under or pursuant to the Lease.
If Tenant is a corporation, the undersigned is a duly appointed officer of the
corporation signing this certificate and is the incumbent in the office
indicated under his/her name. In any event, the undersigned individual is duly
authorized to execute this certificate.
Date: , 19 Signed:
------------------ -- --------------------------------
(Signature)
----------------------------------------
(Print Name & Title)
EXHIBIT F
RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to the
Property and to each portion thereof:
(1) Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by tenants or used by any tenant for any purpose
other than ingress and egress to and from the premises and for going from one to
another party of the Property.
(2) Plumbing, fixtures and appliances shall be used for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable materials
shall be thrown or placed therein. Damage resulting to any such fixtures or
appliances from misuse by a tenant or such tenant's agents, employees or
invitees shall be paid by such tenant and Landlord shall not in any case be
responsible therefor.
(3) No signs, advertisements or notices shall be painted or affixed on or
to any windows or doors or other exterior part of the Property (or be visible
from any public or common area) unless they are of such color, size and style
and in such places as shall be first approved in writing by Landlord. Landlord,
at tenant's sole cost and expense, shall install all letters or numerals by or
on doors in such tenant's leased premises which letters or numerals shall be in
building standard graphics. No nails, hooks or screws shall be driven or
inserted in any part of the Building outside the premises except by the Building
maintenance personnel nor shall any part of the Building be defaced by tenants.
No curtains or other window treatments shall be placed between the glass and the
building standard window treatments.
(4) Landlord shall provide and maintain an alphabetical directory board
for all tenants in the first floor (main lobby) of the Building and no other
directory shall be permitted unless previously consented to by Landlord in
writing.
(5) Two keys to the locks on the corridor doors entering each tenant's
leased premises shall be furnished by Landlord free of charge, with any
additional keys to be furnished by Landlord to each tenant, at tenant's cost.
Landlord shall provide all locks for other doors in each tenant's leased
premises, at the cost of such tenant, and no tenant shall place any additional
lock or locks on any door in or to its leased premises without Landlord's prior
written consent. All such keys shall remain the property of landlord. Each
tenant shall give to Landlord the explanation of the combination of all locks
for safe, safe cabinets and vault doors, if any, in such tenant's leased
premises.
(6) With respect to work being performed by tenants in any leased premises
with the approval of Landlord, all tenants will refer to all contractors,
contractors' representatives and installation technicians rendering any service
to them to Landlord for Landlord's supervision, approval and control before the
performance of any contractual services. This provision shall apply to all work
performed in the Building including, but not limited to, installation of
telephones, telegraph equipment, electrical devices and attachments, doors,
entranceways, and any and all installations of every nature affecting floors,
walls, woodwork, trim, windows, ceilings, equipment and any other physical
portion of the Building.
(7) Movement in or out of the Building of furniture or office equipment,
or dispatch or receipt by tenants of any bulky material, merchandise or
materials which requires use of elevators or stairways, or movement through the
Building entrances or lobby shall be restricted to such hours as Landlord shall
designate. All such movements shall be under the supervision of Landlord and in
the manner agreed between the tenants and Landlord by prearrangement before
performance. Such pre-arrangement initiated by a tenant will include
determination by Landlord, and subject to its decision and control, as to the
time, method, and routing of movement and as to the limitations for safety or
other concerns which may prohibit any article, equipment or any other item from
being brought into the Building. The tenants are to assume all risks as to the
damage to articles moved and injury to persons or public engaged or not engaged
in such movement, including equipment, property and personnel of Landlord if
damaged or injured as a result of acts in connection with carrying out this
service for a tenant from time of entering the property to completion of work:
and Landlord shall not be liable for acts of any person engaged in, or damage or
loss to any of said property or persons resulting from, any act in connection
with such service performed for a tenant.
(8) Landlord shall have the right to prescribe the weight and position of
safes and other heavy equipment or items, which shall in all cases, to
distribute wight, stand on supporting devices approved by Landlord. All damages
done to the Building by the installation or removal of any property of a tenant,
or done by a tenant's property while in the Building, shall
be repaired at the expense of such tenant. Tenant shall bear all costs incurred
by Landlord or Tenant in determining the feasibility or actual installation of
any such heavy equipment.
(9) A tenant shall notify the Building manager when safes or other heavy
equipment are to be taken in or out of the Building and the moving shall be done
under the supervision o the Building manager after written permission from
Landlord. Persons employed to move such property must be acceptable to Landlord.
(10) Corridor doors, when not in use, shall be kept closed.
(11) Each tenant shall cooperate with Landlord's employees in keeping its
leased premises neat and clean.
(12) Landlord shall be in no way responsible to the tenants, their agents,
employees or invitees for any loss of property from the leased premises or
public areas for any damages to any property thereon from any cause whatsoever.
(13) To ensure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers, etc. shall be delivered to any leased area except by
persons appointed or approved by Landlord in writing.
(14) Should a tenant require telegraphic, telephonic, annunciator or other
communication service, Landlord will direct the electrician where and how wires
are to be introduced and placed and none shall be introduced or placed except as
Landlord shall direct. Except as provided in each tenant's lease, electric
current shall not be used for heating or nonstandard power requirements without
Landlord's prior written permission.
(15) Tenant shall not make or permit and improper objectionable or
unpleasant noises or odors in the Building or otherwise interfere in any way
with other tenants or persons having business with them.
(16) Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairways. No birds or animals shall be brought into or kept in, on
or about any tenant's leased premises.
(17) No machinery of any kind shall be operated by tenant on its leased
area without the prior written consent of Landlord, nor shall any tenant use or
keep in the Building any inflammable or explosive fluid or substance.
(18) no portion of any tenant's leased premises shall at any time be used
or occupied as sleeping or lodging quarters.
(19) Each tenant and its agents, employees and invitees shall park only in
those areas designated by Landlord for parking by such Tenant and shall not park
on any public or private streets contiguous to, surrounding or in the vicinity
of the Building without Landlord's prior written consent.
(20) Landlord will not be responsible for lot or stolen property, money or
jewelry from tenant's leased premises or public or common areas regardless of
whether such loss occurs when the area is locked against entry or not.
EXHIBIT G
SPECIAL PROVISIONS
1. Upon the commencement of this Lease, the Lease between Board of the
State Teachers Retirement System of Ohio and Novellus Systems, Inc. dated August
31, 1993 shall be terminated effective on this Lease's Commencement Date, and
neither Party shall have any further rights, duties or obligations thereunder to
the other party for such Lease other than any and all obligations incurred up to
the Commencement Date of this Lease.
2. FIRST RIGHT OF REFUSAL. If, during the primary term of this Lease,
all or any part of the remaining space (the "First Refusal Space") on the NINTH
(9TH) floor of the Building consisting of approximately 8,422 square feet of Net
Rentable Area shall become available for lease and provided that no default or
event of default by or with respect to Tenant then exists hereunder, Tenant
shall have the first right and option to lease such additional space as such
additional space becomes available for lease by Landlord, subject, however, to
any extension, renewal and expansion options which may be contained in the lease
agreements between Landlord and other tenants then occupying such additional
space. When any such space becomes available for lease by Landlord, Landlord
shall first offer to lease such space to Tenant at the First Refusal Rate (as
hereinafter defined) and otherwise upon the same terms and conditions as would
then be offered by Landlord to unrelated third parties in an arm's-length
transaction, said offer to lease such additional space to Tenant to be made in
writing by Landlord when such additional spaces become available for lease. The
"First Refusal Rate" means the Adjusted Rental per square foot of NRA per annum
to be charged to Tenant for the First Refusal Space and shall equal the greater
of (a) the Adjusted Rental per square foot of NRA per annum which would then be
offered by Landlord to unrelated third parties in an arm's-length transaction or
(b) the same Adjusted Rental per square foot of NRA per annum which then and
thereafter applies to the Premises pursuant to this Lease during the remainder
of the term of this Lease and any renewal or extension thereof; provided,
however, that if the provisions of this subparagraph (b) apply, the term of the
lease for the First Refusal Space shall not extend beyond the remaining term of
this Lease and any renewal or extension hereof. If, within seven (7) days after
Landlord gives Tenant notice of the availability of the First Refusal Space,
Tenant does not notify Landlord that Tenant elects to exercise its right to
lease all of such space so offered on such terms and conditions, or if Tenant
fails to execute a lease on such terms and conditions for such space within
twenty (20) days thereafter, then Tenant's rights to lease the First Refusal
Space shall terminate and expire. Notwithstanding the foregoing, Tenant's right
to lease said space, may not be exercised at any time after Tenant, with or
without the consent of Landlord, (A) assigns all or any portion of this Lease or
(B) sublets more than twenty-five percent (25%) of the space located in the
Premises for any length of time subsequent to that date which is twelve (12)
months prior to when such additional space becomes available for lease, and
(iii) shall not inure to the benefit of any assigns or subtenants of Tenant,
whether or not any such assignee or subtenant has been approved by Landlord.
Nothing herein shall imply that Tenant may assign or sublet all or any portion
of this Lease or the Premises without the prior written consent of Landlord.
3. CANCELLATION OPTION. Tenant shall have the one time option to cancel
this Lease Agreement with an effective date of 07/01/98 by providing the
Landlord with notice of such exercise along with notice of Tenant's expansion
requirements on or before March 1, 1998 as long as the Landlord is unable to
provide "Adequate Expansion Space" within the building, hereby defined as the
amount of space in Tenants notice plus or minus 15%. Upon notification of
Tenants required expansion, the Landlord shall have 45 days to notify Tenant of
their ability to provide or not to provide Adequate Expansion Space, and an
additional 120 days to actually provide such space. If the Landlord is unable
to provide Adequate Expansion Space, and Tenant subsequently leases new office
space from a third party in Austin or the surrounding metropolitan area of at
least the amount of space called for in their notification plus the original
Lease Premises and provides evidence of such to Landlord, this Lease shall
terminate on the effective date 07/01/98.