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EXHIBIT 10.28
COMMERCIAL LEASE AGREEMENT
THIS LEASE AGREEMENT is entered into by:
1. LANDLORD: Xxxxxxx-Xxxx Partners No. 33, Ltd. ("Landlord").
2. TENANT: KLA Instruments Corporation ("Tenant").
3. LEASED PREMISES: In consideration of the rents, terms and covenants
of this Lease Agreement (the "Lease"). Landlord hereby leases to Tenant certain
premises (the "Leased Premises") containing approximately 3,151 square feet
within the building or project known as International Corporate Park, Phase II,
and located at 000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000 on a certain tract of land
in Richardson. Dallas County. Texas. Such land (which is described in the
attached Exhibit A), together with the building(s), landscaping, parking and
driveway areas, sidewalks, and other improvements thereon shall be referred to
in this Lease as the "Project." In the case of a multi-building Project, the
word "Building" shall refer to the particular building in which the Leased
Premises are located and the tract of land upon which such building is located.
In the case of a single building Project the term "Building" as used herein
shall be synonymous with the term "Project". If the Leased Premises encompass an
entire building, then the term "Leased Premises" shall be synonymous with
"Building". A xxxxxx description of the Leased Premises, including a floor plan
thereof, is contained in Exhibit B to be attached.
4. TERM:
(a) The term of this Lease shall be Sixty, (60) months
commencing on
_____________________________, 19____ (the "Commencement Date" and terminating
on the last day of __________________________, 19___ (the "Termination Date").
The Commencement Date may be subject to change, however, pursuant to
Subparagraphs (b) and (c) below. However, any such change in the Commencement
Date shall have no effect upon the Termination Date.
(c) Landlord agrees to install at its cost and expense the
improvements, if any, described in the plans and specifications described in
Exhibit B. If such improvements are not completed and the Leased Premises are
not ready for occupancy on the Commencement Date stated above, other than as a
result of the omission, delay or default by Tenant or anyone acting under or on
behalf of Tenant, the rent under this Lease shall not commence until substantial
completion of the work described in said plans and specifications and the
Commencement Date of the Lease term shall be the date of such substantial
completion. Landlord shall notify Tenant in writing as soon as such improvements
are substantially completed and ready for occupancy. If such improvements have
not in fact been substantially completed as aforesaid, Tenant shall notify
Landlord in writing of its objections within five (5) days after receipt of the
completion notice from Landlord. Landlord shall have a reasonable time after
receipt of such notice in which to take such corrective action as may be
necessary and shall notify Tenant in writing as soon as it deems such corrective
action has been completed so that the Leased Premises are completed and ready
for occupancy. In the event of any dispute as to substantial completion or work
performed or required to be performed by Landlord, a certificate of a registered
architect shall be conclusive and binding on all parties.
(d) Tenant acknowledges that no representations or promises
regarding repairs, alterations, remodeling, or improvements to the Leased
Premises have been made by Landlord, its agents, employees, or other
representatives, unless such are expressly set forth in this Lease, and that
Tenant is solely responsible for applying for and obtaining a certificate of
occupancy for the Leased Premises. Tenant agrees that if its occupancy of the
Leased Premises is delayed under the circumstances described in Subparagraph (b)
or (c) above, this Lease shall nonetheless continue in full force and effect.
However, any rental amounts applicable to such period of delay shall be abated
and such abatement shall constitute full settlement of all claims by Tenant
against Landlord by reason of any such delay in possession of the Leased
Premises. Tenant's taking possession of the Leased Premises shall conclusively
establish that the improvements, if any, to be made by Landlord under the terms
of this Lease, have been completed in accordance with the plans and
specifications therefor and that the Leased Premises are in good and
satisfactory condition as of the date of Tenant's possession, unless Tenant
notifies Landlord in writing specifying any defects within ten (10) days after
taking possession. Landlord shall use reasonable diligence to repair promptly
such items but Tenant shall have no claim for damages or rebate or abatement of
rent by reason thereof. After the Commencement Date and upon completion of any
necessary repairs as provided above. Tenant shall, upon demand, execute and
deliver to Landlord a letter of acceptance of the Leased Premises and
acknowledgment of the date of the Commencement Date.
5. BASE RENT AND SECURITY DEPOSIT:
(a) Tenant agrees to pay to Landlord as rent the sum of One
hundred eight thousand seven hundred twenty and no/100 Dollars ($108,720.00)
subject to adjustment for early or delayed occupancy under the terms hereof.
Such rent shall be payable in monthly amounts of One Thousand eight hundred
twelve and no/100 Dollars ($1,812.00) each, in advance, without demand,
deduction or offset (sometimes referred to in this Lease as the "Base Rent" or
"Base Rental"). Such rental amounts shall be due and payable to Landlord in
lawful money of the United States of America at the address shown below. An
amount equal to one monthly Base Rental payment shall be due and payable on the
date Tenant executes this lease and such amount shall be applied to the rent due
for the first complete calendar month occurring after the Commencement Date,
provided that if the Commencement Date should be a date other than the first day
of a
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under this Lease. Upon the occurrence of any event of default by Tenant or
breach by Tenant of its covenants under this Lease. Landlord may, from time to
time, without prejudice to any other remedy provided herein or provided by law,
use, apply, or retain all or part of the security deposit for the payment of any
rent or other sum in default, or for the payment of any other amount which
Landlord may spend or become obligated to spend by reason of Tenant's default,
or for payment of any other amount which Landlord may spend or become obligated
to spend by reason of Tenant default or breach, or to compensate Landlord for
any damage, injury, expense or liability caused to Landlord by such default or
breach. If any portion of the security deposit is so used or applied, Tenant
shall, within five (5) days alter written demand therefor, deposit cash with
Landlord in an amount sufficient to restore the security deposit to the amount
required by this Paragraph. Tenant's failure to do so shall be a default under
this Lease. The balance of the security deposit shall be returned by Landlord to
Tenant at such time after termination of this Lease that all of Tenant's
obligations have been fulfilled.
(c) Other remedies for nonpayment of Rent notwithstanding, if
the monthly Base Rental payment is not received by Landlord on or before the
tenth (10th) day of the month for which such rent is due, or if any other
payment due Landlord by Tenant hereunder (such sums being deemed to be
additional Rent) is not received by Landlord on or before the tenth (10th) day
of the month next following the month in which Tenant was invoiced, a service
charge of five percent (5%) of such past due amount shall be additionally due
and payable by Tenant. Such service charge shall be cumulative of any other
remedies Landlord may have for nonpayment of Rent and other sums payable under
this Lease.
(d) If three (3) consecutive monthly Rental payments or any five
(5) monthly Rental payments during the Lease term (or any renewal or extension
thereof) are not received by Landlord on or before the tenth (10th) day of the
month for which such Rent was due, the Base Rent hereunder shall automatically
become due and payable by Tenant in advance in quarterly installments equal to
three (3) months' Base Rent each. The first of such quarterly Base Rent payments
shall be due and payable on the first day of the next succeeding calendar month
and on the first day of every third (3rd) calendar month thereafter. This remedy
shall be cumulative of any other remedies of Landlord under this Lease for
nonpayment of Rent.
6. ADDITIONAL RENTAL:
(a) Taxes and Insurance:
(1) In the event the "Tax and Insurance Expenses" (as
defined below) of the Building shall in any calendar year during the term of
this Lease exceed the sum of $ 0.75 per square foot, then with respect to such
excess (the "Tax and Insurance Differential"). Tenant agrees to pay as
additional rental Tenant's pro rata share of the Tax and Insurance Differential
within ten (10) days following receipt of an invoice from Landlord stating the
amount due. The pro rata share to be paid by Tenant is Nineteen and 1/10 percent
(19.1%) subject, however, to adjustment for any expansion of the Leased
Premises. In the case of a multi-building Project, if such Tax and Insurance
Expenses are not separately assessed to the Building but are assessed against
the Project as a whole, Landlord shall determine the portion of such Tax and
Insurance Expenses allocable to the Building in which the Leased Premises are
located.
(2) At or prior to the commencement of this Lease and at
any time during the Lease term, Landlord may deliver to Tenant a written
estimate of any additional rent applicable to the Leased Premises (based on the
pro rata share stated above) which may be anticipated for excess Tax and
Insurance Expenses during the calendar year in which this Lease commences or for
any succeeding calendar year, as the case may be. Based upon such written
estimate, the monthly Base Rental shall be increased by one-twelfth (1/12) of
the estimated additional rent.
(3) Statements showing the actual Tax and Insurance
Expenses (as well as the actual Common Area Maintenance Expenses, as defined in
Paragraph 6(b) below) and Tenant's proportionate share thereof (hereinafter
referred to as the "Statement of Actual Adjustment") shall be delivered by
Landlord to Tenant after any calendar year in which additional rental was paid
or due by Tenant. Within ten (10) days after the delivery by Landlord to Tenant
of such Statement of Actual Adjustment. Tenant shall pay Landlord the amount of
any additional rental shown on such statement as being due and unpaid. If such
Statement of Actual Adjustment shows that Tenant has paid more than the amount
of additional rental actually due from Tenant for the preceding calendar year
and if Tenant is not then in default under this Lease, Landlord shall credit the
amount of such excess to the next Base Rental installment due from Tenant.
(4) "Tax and Insurance Expenses" shall mean: (i) all ad
valorem, rental, sales, use, and other taxes (other than Landlord's income
taxes), special assessments, and other governmental charges, and all assessments
due to deed restrictions and/or owner's associations which accrue against the
Building during the term of this Lease; and (ii) all insurance premiums paid by
Landlord with respect to the Building including, without limitation, public
liability, casualty, rental, and property damage insurance.
(b) Common Area Maintenance:
(1) In addition in the rental payable under Paragraphs 5
and 6(a) above. Tenant agrees to pay as additional monthly rental its pro rata
share (as stated in Paragraph 6(a)(1) above) of the "Common Area Maintenance
Expenses" (hereinafter defined). At or prior to the commencement of the Lease,
and at any time during the Lease term. Landlord may deliver to Tenant a written
estimate of any additional rent applicable to the Leased Premises which may be
anticipated for such Common Area Maintenance Expenses during the calendar year
in which this Lease commences or for any succeeding calendar year, as the case
may be. Based upon such written estimate, the monthly Base Rental shall be
increased by one-twelfth (1/12) of said estimated additional rent. The Statement
of Actual Adjustment shall then include the actual Common Area Maintenance
Expenses for the preceding period, and adjustments effected, as provided in
Paragraph 6(a)(3) above. In the case of a multi-building Project, if such Common
Area Maintenance Expenses are not separately assessed or charged to the Building
but are assessed or charged against the
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Project as a whole, Landlord shall determine the portion of such Common Area
Maintenance Expenses allocable to the Building in which the Leased Premises are
located.
(2) "Common Area Maintenance Expenses" shall mean all expenses
(other than the Tax and Insurance Expenses described above) incurred by Landlord
for the maintenance, repair, and operation of the Building, (excluding only
structural soundness of the roof, foundation, and exterior walls) including, but
not limited to, management fees, utility expenses of not separately metered),
maintenance and repair costs, sewer, landscaping, trash and security costs (if
furnished by Landlord), wages and fringe benefits payable to employees of
Landlord whose duties are connected with the operation and maintenance of the
Building, amounts paid to contractors or subcontractors for work or services
performed in connection with the operation and maintenance of the Building, all
services, supplies, repairs, replacements or other expenses for maintaining,
repairing and operating the Building, including without limitation common areas
and parking areas and roof, exterior wall and foundation work that is not
related to structural soundness.
(3) The term "Common Area Maintenance Expenses" does not include
the cost of any capital improvement to the Building other than the reasonably
amortized cost of capital improvements which result in the reduction of
Insurance Expenses or Common Area Maintenance Expenses. Further, the term
"Common Area Maintenance Expenses" shall not include repair, restoration or
other work occasioned by fire, windstorm or other casualty with respect to which
Landlord actually receives insurance proceeds, income and franchise taxes of
Landlord, expenses incurred in leasing to or procuring of tenants, leasing
commissions, advertising expenses, expenses for the renovating of space for new
tenants, interest or principal payments on any mortgage or other indebtedness of
Landlord, compensation paid to any employee of Landlord above the grade of
building superintendent, or depreciation allowance or expense.
(c) If the Commencement Date of this Lease is a day other than
the first day of a month, or if the Termination Date is a day other than the
last day of a month, the amount shown as due by Tenant on the Statement of
Actual Adjustment shall reflect a proration based on the ratio that the number
of days this Lease was in effect during such month bears to the actual number of
days in said month.
(d) The failure of Landlord to exercise its rights hereunder to
estimate expenses and require payment of same as additional rental shall not
constitute a waiver of such rights which rights may be exercised from time to
time at Landlord's discretion.
(e) If the nature of Tenant's business or use of the Leased
Premises is such that additional costs are incurred by Landlord for cleaning,
sanitation, trash collection or disposal services, Tenant agrees to pay as
additional rental to Landlord the amount of such additional costs upon demand.
7. TENANT REPAIRS AND MAINTENANCE:
(a) Tenant shall maintain all parts of the Leased Premises and
their appurtenances (except those for which Landlord is expressly responsible
under this Lease) in good, clean and sanitary condition at its own expense.
Tenant shall promptly make all necessary repairs and replacements to the Leased
Premises, including but not limited to, electric light lamps or tubes, windows,
glass and plate glass, interior and exterior doors, any special office entry,
interior walls and finish work, floors and floor coverings, downspouts, gutters,
heating and air conditioning systems dock boards, truck doors, dock bumpers,
plumbing work and fixtures other than common building sewage lines. Tenant shall
be obligated to repair wind damage to glass caused by events other than
hurricanes or tornadoes. Otherwise, however, Tenant shall not be obligated to
repair any damage caused by fire, hurricane, tornado or other casualty covered
by the insurance maintained by Landlord.
(b) Tenant shall not damage or disturb the integrity, structural
soundness, or support of any wall, roof, or foundation of the Leased Premises.
Any damage to these walls caused by Tenant or its employees, agents or invitees
shall be promptly repaired by Tenant at its sole cost and expense.
(c) Landlord shall have the right to coordinate any repairs and
other maintenance of any rail tracks serving or to serve the Project, and if
Tenant uses such rail tracks. Tenant shall reimburse Landlord from time to time
upon demand for a share of the cost of such repairs and maintenance and any
other sums specified in any agreement to which Landlord is a party respecting
such tracks. Tenant's share of such costs shall be additional rent and shall
reflect a proration based on the ratio that the space contained in the Leased
Premises bears to the entire space occupied by rail users in the Project.
(d) Tenant shall, at its own cost and expense, enter into a
regularly scheduled preventive maintenance/service contract with a maintenance
contractor for servicing all heating and air conditioning systems and equipment
within the Leased Premises. The maintenance contractor and the contract must be
approved by Landlord, The service contract must include all services suggested
by the equipment manufacturer within the operation/maintenance manual and must
become effective (and a copy delivered to Landlord) within thirty (30) days of
the date Tenant takes possession of the Leased Premises. If Tenant fails to
enter into such service contract as required. Landlord shall have the right to
do so on Tenant's behalf and Tenant agrees to pay Landlord the cost and expense
of same upon demand.
(e) Tenant shall pay all charges for pest control and
extermination within the Leased Premises.
(f) At the termination of this Lease, Tenant shall deliver the
Leased Premises "broom clean" to Landlord in the same good order and condition
as existed at the Commencement Date of this Lease, ordinary wear, natural
deterioration beyond the control of Tenant, damage by fire, tornado or other
casualty excepted.
(g) Not in limitation on the foregoing, it is expressly
understood that Tenant shall repair and pay for all damage caused by the
negligence of Tenant. Tenant's employees, agents or invitees, or caused by
Tenant's default hereunder. All requests for repairs or maintenance that are the
responsibility of Landlord under this Lease must be made in writing to Landlord
at the address set forth below.
8. LANDLORD'S REPAIRS: Landlord shall be responsible, at its expense,
only for the structural soundness of the roof, foundation and
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exterior walls of the Building. Any repair to the roof, foundation or exterior
walls occasioned by the act or omission of Tenant, or its agents, employees,
guests or invitees shall be the responsibility of Tenant. The term "walls" as
used in this Paragraph 8 shall not include windows, glass or plate glass,
interior doors, special store fronts, office entries or exterior doors.
Landlord's liability with respect to any defects, repairs or maintenance for
which Landlord is responsible at its expense under this Lease shall be limited
to the cost of such repairs or maintenance or the curing of such defect. As
expenses included in Common Area Maintenance Expenses. Landlord will be
responsible for landscaping and maintenance of common areas and parking areas,
exterior painting, and common sewage line plumbing. Tenant shall immediately
give Landlord written notice of defects or need for repairs, alter which
Landlord shall have a reasonable opportunity to repair same or cure such defect.
Landlord shall not be required to perform any covenant or obligation of this
Lease, or be liable in damages to Tenant, so long as the performance or
non-performance of the covenant or obligation is delayed, caused by, or
prevented by an act of God or force majeure. An "act of God" or "force majeure"
is defined for purposes of this Lease as strikes, lockouts, sit-downs, material
or labor restrictions by any governmental authority, riots, floods, washouts,
explosions, earthquakes, fire, storms, acts of the public enemy, wars,
insurrections and any other similar cause not reasonably within the control of
Landlord, and which by the exercise of due diligence Landlord is unable, wholly
or in part, to prevent or overcome.
9. UTILITY SERVICE: Tenant shall pay the cost of all utility services,
including, but not limited to, initial connection charges and all charges for
gas, water, and electricity used on the Leased Premises. If the Leased Premises
are separately metered, Tenant shall pay such costs directly to the appropriate
utility company. Otherwise, Tenant shall pay such costs pursuant to Paragraph
6(b) above. Tenant shall pay all costs caused by Tenant introducing excessive
pollutants into the sanitary sewer system, including permits, fees and charges
levied by any governmental subdivision for any pollutants or solids other than
ordinary human waste. If Tenant can be clearly identified as being responsible
for obstructions or stoppage of the common sanitary sewage line, then Tenant
shall pay the entire cost thereof, upon demand, as additional rent. Tenant shall
be responsible for the installation and maintenance of any dilution tanks,
holding tanks, settling tanks, sewer sampling devices, sand traps, grease traps
or similar devices which may be required by the appropriate governmental
subdivision for Tenant's use of the sanitary sewer system. Tenant shall also pay
all surcharges (i.e., charges in excess of normal charges) levied due to
Tenant's abnormal use of sanitary sewer or waste removal services so that no
such surcharges shall affect Landlord or other tenants in the Project under
Paragraph 6(b) above.
10. SIGNS: No sign, door plaques, advertisement, or notice shall be
displayed, painted or affixed by Tenant on any part of the Project or Building,
parking facilities, or Leased Premises without prior written consent of
Landlord. The color, size, character, style, material, and placement shall be
approved by Landlord, and subject to any applicable governmental laws,
ordinances, regulations, project specifications, and other requirements. Signs
on doors and entrances to the Leased Premises, if approved by Landlord, shall be
placed thereon by a contractor approved by Landlord and paid for by Tenant.
Tenant shall remove all such signs at the termination of this lease. Such
installations and removals shall be made in such manner as to avoid injury or
defacement of the Project and other improvements, and Tenant, at its sole
expense, shall repair any injury or defacement, including, without limitation,
any discoloration caused by such installation and/or removal.
11. USAGE: Tenant warrants and represents to Landlord that the Leased
Premises shall be used and occupied only for the purpose of General offices and
Field Engineering Group of KLA Any change in the stated usage purposes or in the
scope or extent of such usage as previously described to Landlord by Tenant
shall be subject to the prior written approval of Landlord. Tenant shall occupy
the Leased Premises, conduct its business and control its agents, employees,
invitees and visitors in a lawful and reputable way and as not to create any
nuisance or otherwise interfere with, annoy or disturb any other tenant in its
normal business operations or Landlord in its management of the Project. Tenant
shall not commit, or allow to be committed, any waste on the Leased Premises.
12. INSURANCE:
(a) Tenant shall not permit the Leased Premises to be used in
any way which would, in the opinion of Landlord, be hazardous or which would in
any way increase the cost of or render void the fire insurance on improvements
or contents in the Project belonging to Landlord or other tenants. If at any
time during the term of this Lease the State Board of Insurance or other
insurance authority disallows any of Landlord's sprinkler credits or imposes an
additional penalty or surcharge in Landlord's insurance premiums because of
Tenant's original or subsequent placement or use of storage racks or bins,
method of storage, or nature of Tenants inventory or any other act of Tenant,
Tenant agrees to pay as additional rental the increase in Landlord's insurance
premiums. If an increase in the fire and extended coverage premiums paid by
Landlord for the Building in which Tenant occupies space is caused by Tenant's
use or occupancy of the Leased Premises; or if Tenant vacates the Leased
Premises and causes an increase, then Tenant shall pay as additional rental the
amount of such increase to Landlord.
(b) Tenant shall procure and maintain throughout the term of
this lease a policy or policies of insurance, at its sole cost and expense,
insuring both Landlord and Tenant against all claims, demands or actions arising
out of or in connection with: (i) the Leased Premises: (ii) the condition of the
Leased Premises; (iii) Tenant's operations in and maintenance and use of the
Leased Premises; and (iv) Tenant's liability assumed under this Lease. The
limits of such policy or policies shall be not less than one million dollars
($1,000,000) combined single limit coverage per occurrence for injury to persons
(including death) and/or property damage or destruction, including loss of use.
All such policies shall be procured by Tenant from responsible insurance
companies satisfactory to Landlord. Certified copies of such policies, together
with receipts for payment of premiums, shall be delivered to Landlord prior to
the Commencement Date of this Lease. Not less than fifteen (15) days prior to
the expiration date of any such policies, certified copies of renewal policies
and evidence of the payment of renewal premiums shall be delivered to Landlord.
All such original and renewal policies shall provide for at least thirty (30)
days written notice to Landlord before such policy may be cancelled or changed
to reduce insurance coverage provided thereby. Upon request of Landlord, Tenant
further agrees to complete and return to Landlord an insurance questionnaire
(such form to be provided by Landlord) regarding Tenant's insurance coverage and
intended use of the Leased Premises. Tenant warrants and represents that all
information contained in such questionnaire shall be true and correct as of the
date thereof and shall be updated by Tenant from time to time upon Landlord's
request.
13. RELOCATION: Upon request by Landlord during the term of this Lease.
Tenant agrees to relocate to other space in the Building and/or Project
designated by Landlord, provided such other space is as large or larger than the
Leased Premises and has at least the same number of windows. Landlord shall pay
all out-of-pocket expenses of any such relocation, including the expenses of
moving and reconstructing all Tenant furnished and Landlord furnished
improvements. In the event of such relocation, this Lease shall continue in full
force and effect without any change in its terms other than substitution of the
new description of the Leased Premises for the original description set forth in
Paragraph 3 of this lease
14. COMPLIANCE WITH LAWS, RULES AND REGULATIONS: Tenant shall comply
with all applicable laws, ordinances, orders, rules and regulations of state,
federal, municipal, or other agencies or bodies relating to the use, condition
and occupancy of, and business conducted
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on, the Leased Premises, including without limitation, the Resource Conservation
and Recovery Act, the Comprehensive Environmental Response Act, and the rules,
regulations and directives of the U.S. Environmental Protection Agency. Tenant
shall also comply with the rules of the Project which may hereafter be adopted
by Landlord. Landlord shall have the right at all times to change the rules and
regulations of the Project or to amend them in any reasonable manner as may be
deemed advisable for the safety, care, cleanliness, and good order of the
Project and Leased Premises. All rules and regulations of the Project and any
changes or amendments thereto will be sent by Landlord to Tenant in writing and
shall thereafter be carried out and observed by Tenant.
15. ASSIGNMENT AND SUBLETTING: The Tenant agrees not to assign,
transfer, or mortgage this lease or any right or interest therein, or sublet the
Leased Premises or any part thereof, without the prior written consent of
Landlord. No assignment or subletting made with the consent of Landlord shall
relieve Tenant of its obligations hereunder, and Tenant shall continue to be
liable as a principal (and not as a guarantor or surety to the same extent as
though no assignment or sublease had been made. Consent by Landlord to an
assignment or sublease shall not be construed to be consent to any additional
assignment or subletting. Each such successive act shall require similar consent
of Landlord. Landlord shall be reimbursed by Tenant for any costs or expenses
incurred as a result of Tenant's request for consent to any such assignment or
subletting. In the event Tenant subleases the Leased Premises, or any portion
thereof, or assigns this Lease with the consent of the Landlord at an annual
Base Rental exceeding that stated herein, such excess shall be paid by Tenant to
Landlord as additional rental hereunder within ten (10) days after receipt by
Tenant. Upon the occurrence of an "event of default" as defined below, if all or
any part of the Leased Premises are then assigned or sublet, Landlord may, in
addition to any other remedies provided by this lease or provided by law,
collect directly from the assignee or subtenant all rents due to Tenant.
Landlord shall have a security interest in all properties on the Leased Premises
to secure payment of such sums. Any collection directly by Landlord from the
assignee or subtenant shall not be construed, however, to constitute a novation
or a release of Tenant from the further performance of its obligations under
this lease. Notwithstanding the foregoing, it is expressly agreed that if this
Lease is assigned to any person or entity pursuant to the provisions of the
Bankruptcy Code, 11 U.S.C. Section 101 et esq. (the "Bankruptcy Code"), any and
all monies or other considerations payable or otherwise to be delivered in
connection with such assignment shall be paid or delivered to Lessor, shall be
and remain the exclusive property of Landlord and shall not constitute property
of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code.
Any and all monies or other considerations constituting Landlord's property
under the preceding sentence not paid or delivered to Landlord shall be held in
trust for the benefit of Landlord and be promptly paid or delivered to Landlord.
Any person or entity to which this Lease is assigned pursuant to the provisions
of the Bankruptcy Code shall be deemed without further act or deed to have
assumed all of the obligations arising under this Lease on and after the date of
such assignment. Any such assignee shall upon demand execute and deliver to
Landlord an instrument confirming such assumption.
16. ALTERATIONS AND IMPROVEMENTS:
(a) Tenant shall not make or perform, or permit the making or
performance of, any initial or subsequent tenant finish work or any alterations,
installations, decorations, improvements, additions or other physical changes in
or about the Leased Premises (referred to collectively as "Alterations") without
Landlord's prior consent. Landlord agrees not to withhold its consent
unreasonably to any nonstructural Alterations proposed to be made by Tenant to
adapt the Leased Premises for Tenant's business purposes. Notwithstanding the
foregoing provisions or Landlord's consent to any Alterations, all Alterations
shall be made and performed in conformity with and subject to the following
provisions: All Alterations shall be made and performed at Tenant's sole cost
and expense and at such time and in such manner as Landlord may from time to
time reasonably designate. Alterations shall be made only by contractors or
mechanics approved by Landlord, such approval not to be unreasonably withheld.
No Alteration shall affect any part of the Building other than the Leased
Premises or adversely affect any service required to be furnished by Landlord to
Tenant or to any other tenant or occupant of the Building or reduce the value or
utility of the Building. No alteration shall affect the outside appearance of
the Building. Tenant shall submit to Landlord detailed plans and specifications
(including layout, architectural, mechanical and structural drawings) for each
proposed Alteration and shall not commence any such Alteration without first
obtaining Landlord's written approval of such plans and specifications. Prior to
the commencement of each proposed Alteration. Tenant shall furnish to Landlord
duplicate original policies of worker's compensation insurance covering all
persons to be employed in connection with such Alterations, including those to
be employed by all contractors and subcontractors, and of comprehensive public
liability insurance (including property damage coverage) in which Landlord, its
agents, and any lessor under any ground or underlying lease, and any mortgagee
of the Building shall be named as parties insured, which policies shall be
issued by companies, and shall be in form and amounts, satisfactory to Landlord
and shall be maintained by Tenant until the completion of such Alteration. If
Landlord shall require to assure payment of all costs of such alterations, prior
to commencement of any approved Alteration. Tenant shall cause to be issued and
delivered to Landlord an irrevocable documentary letter of credit or payment
bond in the full amount of the cost of the said approved Alterations issued by a
substantial banking institution reasonably acceptable to Landlord payable in
whole or in part, from time to time to the order of Landlord upon written demand
accompanied by Landlord's certification that Tenant has defaulted with respect
to the obligation secured thereby. The term of the letter of credit shall be
from date of issuance through ninety (90) days after completion of construction
of the approved Alterations. Tenant shall cause its contractor to provide
Landlord with a certificate of completion of the Alterations and a bills paid
affidavit and full lien waiver: and upon receipt of same, and no fewer than
thirty-one (31) days following completion, if Tenant is not in default
hereunder, Landlord shall return the letter of credit to Tenant unused and
endorsed for cancellation. Tenant shall, if requested by Landlord at the time of
Landlord's consent to the Alterations, agree to restore the Leased Premises at
the termination of this Lease to their condition prior to making such
Alterations. All permits, approvals and certificates required by all
governmental authorities shall be timely obtained by Tenant and submitted to
Landlord. Notwithstanding Landlord's approval of plans and specifications for
any Alterations, all Alterations shall be made and performed in full compliance
with all applicable laws, orders and regulations of Federal, State, County, and
Municipal authorities and with all directions, pursuant to law, of all public
officers, and with all applicable rules, orders, regulations and requirements of
the Dallas Board of Fire Underwriters or any similar body. All alterations shall
be made and performed in accordance with the Building rules. All materials and
equipment to be incorporated in the Leased Premises as a result of all
Alterations shall be new and first quality. No such materials or equipment shall
be subject to any lien, encumbrance, chattel mortgage or title retention or
security agreement. If such Alterations are being performed by Tenant in
connection with Tenant's initial occupancy of the Leased Premises, Tenant agrees
to make proper application for, and obtain, a certificate of occupancy from the
city in which the Leased Premises are located. Tenant shall furnish such
certificate to Landlord promptly after issuance of same.
(b) Tenant shall not at any time prior to or during the term of
this Lease, directly or indirectly employ or permit the employment of, any
contractor, mechanic, or laborer in the Leased Premises, whether in connection
with any Alteration or otherwise, if such employment will interfere or cause any
conflict with other contractors, mechanics, or laborers engaged in the
construction, maintenance or operation of the Building by Landlord, Tenant, or
other, in the event of any such interference or conflict, Tenant, upon demand of
Landlord, shall cause all contractors, mechanics, or laborers causing such
interference or conflict to leave the Building immediately.
(c) All appurtenances, fixtures, improvements, and other
property attached to or installed in the Leased Premises, whether by Landlord or
Tenant or others, and whether at Landlord's expense or Tenant's expense, or the
joint expense of Landlord and Tenant, shall be and remain the property of
Landlord, except that any such fixtures, improvements, additions, and other
property which have been installed at the sole expense of Tenant and which are
removable without material damage to the Leased Premises shall be and remain the
property of Tenant. At Landlord's option. Tenant shall remove any property
belonging to Tenant at the end of the term hereof, and Tenant shall repair or,
at Landlord's option, shall pay to
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Landlord the cost of repairing any damage arising from such removal. Any
replacements of any property of Landlord, whether made at Tenant's expense or
otherwise, shall be and remain the property of Landlord.
17. CONDEMNATION:
(a) If, during the term (or any extension or renewal) of this
Lease, all or a substantial part of the Leased Premises are taken for any public
or quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain or by private purchase in lieu thereof, and the taking
would prevent or materially interfere with the then current use of the Leased
Premises, this Lease shall terminate and the Rent shall be abated during the
unexpired portion of this Lease effective on the date physical possession is
taken by the condemning authority.
(b) If a portion of the Leased Premises is taken as described
above and this Lease is not terminated as provided in subparagraph (a) above the
Rent payable under this Lease during the unexpired portion of the term shall be
adjusted to such an extent as may be fair and reasonable under the
circumstances.
(c) In the event of such taking or private purchase in lieu
thereof. Landlord and Tenant shall each be entitled to receive any sums
separately awarded to each party by the condemning authority. In the event
separate awards to Landlord and Tenant are not made, Landlord shall be entitled
to receive any and all sums by the condemning authority.
18. FIRE AND CASUALTY:
(a) If the Building should be damaged or destroyed by fire,
tornado, or other casualty, Tenant shall give immediate written notice thereof
to Landlord.
(b) If the Building should be totally destroyed by fire,
tornado, or other casualty, or if it should be so damaged thereby that
rebuilding or repairs cannot in Landlord's estimation be completed within one
hundred eighty (180) days after the date on which Landlord is notified by Tenant
of such damage, this Lease shall terminate and the Rent shall be abated during
the unexpired portion of this Lease, effective upon the date of occurrence of
such damage.
(c) If the Building should be damaged by any peril covered by
the insurance maintained by Landlord, but only to such extent that rebuilding or
repairs can in Landlord's estimation be completed within one hundred eighty
(180) days after the date on which Landlord is notified by Tenant of such
damage, this Lease shall not terminate and Landlord shall, to the extent of
insurance proceeds received, then proceed with reasonable diligence to rebuild
and repair the Building to substantially the same condition in which it existed
prior to such damage. Landlord shall not be required, however, to rebuild,
repair, or replace any part of the partitions, fixtures, additions, and other
improvements which may have been placed in, on, or about the Leased Premises by
Tenant. If the Leased Premises are untenantable in whole or in part following
such damage, the Rent payable hereunder during the period in which they are
untenatable shall be reduced to such extent as may be fair and reasonable under
all of the circumstances. If Landlord should fail to complete such repairs and
rebuilding within one hundred eighty (180) days after the date on which Landlord
is notified by Tenant of such damage, Tenant may terminate this Lease by
delivering written notice of termination to Landlord. Such termination shall be
Tenant's exclusive remedy and all rights and obligations of the parties under
this Lease shall then cease. Notwithstanding the foregoing provisions of this
subparagraph (c). Tenant agrees that if the Leased Premises, the Building and/or
Project are damaged by fire or other casualty caused by the fault or negligence
of Tenant or Tenant's agents, employees or invitees, Tenant shall have no option
to terminate this Lease, even if the damage cannot be repaired within one
hundred eighty (180) days, and the Rent shall not be abated or reduced before or
during the repair period.
(d) Notwithstanding anything herein to the contrary, if the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Building and/or Project requires that the insurance proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within fifteen (15) days
after such requirement is made. All rights and obligations under this Lease
shall then cease.
19. CASUALTY INSURANCE: Landlord shall at all times during the term of
this Lease maintain a policy or policies of insurance with the premiums paid in
advance, issued by and binding upon some solvent insurance company, insuring the
Building against loss or damage by fire, explosion, or other hazards and
contingencies. Landlord shall not be obligated, however, to insure any personal
property (including, but not limited to, any furniture, machinery, goods, or
supplies) of Tenant or which Tenant may have in the Leased Premises or any
fixtures installed by or paid for b Tenant upon or within the Leased Premises or
any improvements which Tenant may construct or install on the Leased Premises or
any signs identifying Tenant's business located on the exterior of the Building.
20. WAIVER OF SUBROGATION: To the extent that Landlord or Tenant
receives casualty insurance proceeds, such recipient hereby waives and releases
any and all rights, claims, demands and causes of action such recipient may have
against the other on account of any loss or damage occasioned to such recipient
or its businesses, real and personal properties, the Leased Premises, the
Building, the Project, or its contents, arising from any risk or peril covered
by any insurance policy carried by either party. Inasmuch as the above mutual
waivers will preclude the assignment of any such claim by way of subrogation (or
otherwise) to an insurance company (or any other person), each party hereto
hereby agrees immediately to give to its respective insurance companies written
notice of the terms of such mutual waivers and to have their respective
insurance policies properly endorsed, if necessary, to prevent the invalidation
of such insurance coverages by reason of such waivers. This provision shall be
cumulative of Paragraph 21 below.
21. HOLD HARMLESS: Landlord shall not be liable to Tenant, Tenant's
employees, agents, invitees, licensees or visitors, or to any other person, for
any injury to person or damage to property on or about the Leased Premises or
the Project caused by the negligence or misconduct of Tenant, its agents,
employees, invitees, or of any other persons entering upon the Leased Premises
or the Project under express or implied invitation by Tenant. Tenant agrees to
indemnify and hold Landlord harmless from any and all loss, attorney's fees,
expenses, or claims arising out of any such damage or injury.
22. QUIET ENJOYMENT: Landlord warrants that it has full right to execute
and to perform this Lease and to grant the estate demised and that Tenant, upon
payment of the required Rent and performing the covenants and agreements
contained in this Lease, shall peaceably and quietly have, hold, and enjoy the
Leased Premises during the full term of this Lease, including any extensions or
renewals thereof.
23. LANDLORD'S RIGHT OF ENTRY: Landlord shall have the right, at all
reasonable hours, to enter the Leased Premises for the
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Following reasons: inspection, cleaning or making repairs, making such
alterations or additions as Landlord may deem necessary or desirable:
installation of utility lines servicing the Leased Premises or any other space
in the Building: determining Tenant's use of the Leased Premises, or for
determining it any act of default under this Lease has occurred. Landlord shall
give twenty-four (24) hours written notice to Tenant prior to such ?? except in
cases of emergency when Landlord may enter the Leased Premises at any time and
without prior notice. During the period that is six (6) months prior to the end
of the Lease term. Landlord and Landlord's agents and representatives shall have
the right to enter the Leased Premises at any reasonable time during business
hours, without notice, for the purpose of showing the Leased Premises and shall
have the right to erect on the Leased Premises a suitable sign indicating the
Leased Premises are available for lease. Tenant shall give written notice to
Landlord at least thirty (30) days prior to vacating the Leased Premises and
shall arrange to meet with Landlord for a joint inspection of the Leased
Premises prior to vacating. In the event of Tenant's failure to give such notice
or arrange such joint inspection, Landlord's inspection at or after Tenant's
vacating the Leased Premises shall be conclusively deemed correct for purposes
of determining Tenant's responsibility for repairs and restoration.
24. ASSIGNMENT OF LANDLORD'S INTEREST IN LEASE: Landlord shall have the
right to transfer and assign, in whole or in part, its rights and obligations
with respect to the Project and premises that are the subject of this Lease,
including Tenant's security deposit. In such event, Landlord shall be released
from any further obligation under this Lease and Tenant agrees to look solely to
Landlord's successor for the performance of such obligations.
25. LANDLORD'S LIEN: In addition to any statutory lien for Rent in
Landlord's favor, Landlord shall have and Tenant hereby grants to Landlord a
continuing security interest for all Rentals and other sums of money becoming
due under this Lease from Tenant upon all goods, wares, equipment, fixtures,
furniture, inventory, accounts, contract rights, and other personal property of
Tenant situated on or (arising from the Leased Premises. Such property shall not
be removed without the consent of Landlord In the event of a default under this
Lease, Landlord shall have in addition to any other remedies provided in this
lease or by law, all rights and remedies under the Texas Uniform Commercial
Code, including without limitation the right to sell the property described in
this Paragraph at public or private sale upon five (5) days notice to Tenant.
Tenant hereby agrees to execute such financing statements and other instruments
necessary or desirable in Landlord's discretion to perfect the security interest
hereby created. The express contractual lien herein granted, is in addition and
supplementary to any statutory lien for Rent. * which consent may be withheld by
Landlord without cause so long as any of Tenant's duties or obligations
hereunder have not been fully performed.
26. DEFAULT BY TENANT: The following shall be events of default by
Tenant under this Lease:
(a) Tenant shall fail to pay when due any installment of Rent or
other payment required pursuant to this Lease;
(b) Tenant shall abandon or vacate any substantial portion of
the Leased Premises, whether or not Tenant is in default of the Rental payments
due under this Lease;
(c) Tenant shall fail to comply with any term, provision or
covenant of this Lease, other than the defaults listed in this paragraph 26, and
the failure is not cured within ten (10) days after written notice thereof to
Tenant;
(d) Tenant shall file a petition or be adjudged a debtor or
bankrupt or insolvent under the National Bankruptcy Code, as amended, or any
similar law or statute of the United States or any state: or a receiver or
trustee shall be appointed for all or substantially all of the assets of Tenant:
or Tenant shall make a transfer in fraud of creditors or shall make an
assignment for the benefit of creditors:
(e) Tenant shall do or permit to be done any act which results
in a lien being filed against the Leased Premises.
27. REMEDIES FOR TENANT'S DEFAULT: Upon the occurrence of any event of
default set forth in this Lease, Landlord shall have the option to pursue any
one or more of the following remedies without any prior notice or demand:
(a) Landlord may terminate this Lease, in which event Tenant
shall immediately surrender the Leased Premises to Landlord, and if Tenant fails
to do so. Landlord may, without prejudice to any other remedy which it may have,
enter upon and take possession of the Leased Premises, and expel or remove
Tenant and any other person who may be occupying all or any part of the Leased
Premises. Landlord shall not be liable for prosecution or any claim for damages
as a result of such actions. Tenant agrees to pay on demand the amount of all
losses, costs, expenses, deficiencies, and damages, including, without
limitation, reconfiguration expenses, rental concessions and other inducements
to new tenants, advertising expenses and broker's commissions, which Landlord
may incur or suffer by reason of Tenant's default or the termination of the
lease under this subparagraph, whether through inability to relet the Leased
Premises on satisfactory terms or otherwise. Tenant acknowledges that its
obligation to pay Base Rent and all additional Rent hereunder is not only
compensation for use of the Leased Premises but also compensation for sums
already expended and/or being expended by Landlord with respect to its
obligations hereunder and with respect to the Leased Premises, and Tenant
acknowledges that Tenant's default in timely payment of all sums due hereunder
shall constitute significant financial loss to Landlord. Tenant further
acknowledges that any failure to pay any sum due hereunder shall evidence
Tenant's inability to meet its debts as they become due. In such event, in
addition to Landlord's other remedies hereunder. Landlord shall be entitled to
accelerate all Base Rental remaining unpaid hereunder, the entirety of which
shall, at the option of Landlord, be immediately due and payable.
(b) Landlord may enter upon and take possession of the Leased
Premises and expel or remove Tenant and any other person who may be occupying
all or any part of the Leased Premises (without being liable for prosecution or
any claim for damages therefor) and relet the Leased Premises on behalf of
Tenant and receive directly the rent of the reletting. Tenant agrees to pay
Landlord on demand any deficiency that may arise by reason of any reletting of
the Leased Premises and to reimburse Landlord on demand for any losses, costs,
and expenses, including without limitation, reconfiguration expenses, rental
concessions and other inducements to new tenants, advertising costs or broker's
commissions, which Landlord may incur or suffer as a result of Tenant's default
or in reletting the Leased Premises. Tenant further agrees to reimburse Landlord
for any expenditures made by if for remodeling or repairs necessary in order to
relet the Leased Premises. In the event Landlord is successful in reletting the
Leased Premises at a rental in excess of that agreed to be paid by Tenant
pursuant to this Lease. Landlord and Tenant agree that Tenant shall not be
entitled under any circumstances, to such excess rental, and Tenant does hereby
specifically waive any claim to such excess rental.
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(c) Landlord may enter upon the Leased Premises (without being
liable for prosecution or any claim for damages therefor) and do whatever Tenant
is obligated to do under the terms of this Lease. Tenant agrees to reimburse
Landlord on demand for any losses, costs and expenses which Landlord may incur
in effecting compliance with Tenant's obligations under this Lease. Tenant
further agrees that Landlord shall not be liable for any damages resulting to
Tenant from effecting compliance with Tenant's obligations under this
subparagraph, whether caused by the negligence of Landlord or otherwise.
(d) Landlord may pursue any remedy provided at law or in equity.
(e) Landlord shall have no duty to relet the Premises, and the
failure of Landlord to do so shall not release or affect Tenant's liability for
Rentals and other charges due hereunder or for damages.
(f) No re-entry or reletting of the Premises or any filing or
service of an unlawful detainer action or similar action shall be construed as
an election by Landlord to terminate Tenant's right to possession under this
Lease unless a written notice of such intention is given by Landlord to Tenant.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease and Tenant's right to possession
hereunder.
28. TERMINATION OF OPTIONS: If there exist any options or special rights
which Landlord may have granted Tenant under this lease including, but not
limited to, options or rights regarding extensions of the lease term, expansion
of the Leased Premises, or acquisition of any other interest in the Leased
Premises or the Building, then all such options and rights are independent of
the leasehold estate hereby granted to Tenant by Landlord. Landlord and Tenant
agree and acknowledge that the negotiated consideration for any such options or
special rights is Tenant's entry into this Lease and that no portion of any sums
due and payable by Tenant to Landlord hereunder is attributable thereto. In
addition to, and not in lieu of, the above remedies of Landlord for Tenant's
default, any and all such options or special rights shall be automatically
terminated upon the occurrence of the following events:
(a) Tenant shall have failed to pay when due any installment of
Rent or other sums payable under this Lease for any three (3) consecutive months
during the Lease term or any renewal or extension thereof, or for any five (5)
months during the Lease term or any renewal or extension thereof, whether or not
said defaults are cured by Tenant; or
(b) Tenant shall have received two (2) or more notices of
default under Paragraph 26(c) above with respect to any other covenant of this
Lease, whether or not such default(s) is/are cured; or
(c) Tenant shall have committed or suffered to exist any other
event of default described under Paragraph 26 above, whether or not such default
is cured by Tenant.
29. WAIVER OF DEFAULT OR REMEDY: Failure of Landlord to declare a
default immediately upon its occurrence, or delay in taking any action in
connection with an event of default, shall not be waiver of the default.
Landlord shall have the right to declare the default at any time and take such
action as is lawful or authorized under this Lease. Pursuit of any one or more
of the remedies set forth in Paragraphs 27 or 28 above shall not preclude
pursuit of any one or more of the other remedies provided therein or elsewhere
in this Lease provided by law, nor shall pursuit of any remedy be a forfeiture
or waiver of any Rent or damages accruing to Landlord by reason of the violation
of any of the terms of this Lease. Failure by Landlord to enforce one or more of
its remedies upon an event of default shall not be construed as a waiver of the
default or of any other violation or breach of any of the terms contained in
this Lease.
30. ATTORNEY'S FEES: In the event any litigation arises hereunder, it is
specifically stipulated that this Lease shall be interpreted and construed
according to the laws of the State in which the Leased Premises are located.
Further, the prevailing party in any such litigation between the parties shall
be entitled to recover, as a part of its judgment, reasonable attorney's fees.
31. HOLDING OVER: Tenant will, at the termination of this Lease by lapse
of time or otherwise, surrender immediate possession to Landlord. If Landlord
agrees in writing that Tenant may hold over after the expiration or termination
of this Lease and if the parties do not otherwise agree, the hold over tenancy
shall be subject to termination by Landlord at any time upon not less than five
(5) days advance written notice, or by Tenant at any time upon not less than
thirty (30) days advance written notice. Further, all of the terms and
provisions of this Lease shall be applicable during the hold over period, except
that Tenant shall pay Landlord from time to time upon demand, as Base Rent for
the period of any hold over, an amount equal to one and one-half times (1-1/2)
the Base Rent in effect on the termination date, computed on a daily basis for
each day of the hold over period, plus all additional rental and other sums due
hereunder. If Tenant shall fail immediately to surrender possession of the
Leased Premises to Landlord upon termination of this Lease, by lapse of time or
otherwise, and Landlord has not agreed to such continued possession as above
provided, then, until Landlord can dispossess Tenant under the terms hereof or
otherwise. Tenant shall pay Landlord from time to time upon demand, as Base Rent
for the period of any such holdover, an amount equal to twice the Base Rent in
effect on the termination date, computed on a daily basis for each day of the
hold over period, plus all additional rental and other sums due hereunder. No
holding over by Tenant, whether with or without consent of Landlord, shall
operate to extend this Lease except as otherwise expressly agreed by the
parties. The preceding provisions of this Paragraph shall not be construed as
Landlord's consent for Tenant to hold over.
32. RIGHTS OF MORTGAGEE: Tenant accepts this Lease subject and
subordinate to any recorded mortgage, deed of trust or other lien presently
existing or hereafter to exist with respect to the Leased Premises. Landlord is
hereby irrevocably vested with full power and authority to subordinate Tenant's
interest under this Lease to any mortgage, deed of trust or other hen hereafter
placed on the Leased Premises, and Tenant agrees upon demand to execute such
additional instruments subordinating this Lease as Landlord or the holder of any
such mortgage, deed of trust, or lien may require. If the interests of Landlord
under this Lease shall be transferred by reason of foreclosure or other
proceedings for enforcement of any mortgage on the Leased Premises. Tenant shall
be bound to the transferee (sometimes called the "Purchaser") under the terms
and conditions of this Lease for the balance of the remaining lease term,
including any extensions or renewals, with the same force and effect as if the
Purchaser were Landlord under this Lease. Tenant further agrees to attorn to the
Purchaser, including the mortgagee under any such mortgagee if it be the
Purchaser, as its Landlord. Such attornment shall be effective 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
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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. Each such holder of any mortgage,
deed of trust, or lien, and each such Purchaser, shall be a third-party
beneficiary of the provisions of this Paragraph.
33. ESTOPPEL CERTIFICATES: Tenant agrees to furnish within (10) days,
from time to time, upon request of Landlord or Landlord's mortgagee, a statement
certifying that Tenant is in possession of the Leased Premises; the Leased
Premises are acceptable; the Lease is in full force and effect; the Lease is
unmodified; Tenant claims no present charge, lien, or claim of offset against
Rent; the Rent is paid for the current month, but is not paid and will not be
paid for more than one month in advance; there is no existing default by reason
of some act or omission by Landlord; and such other matters as may be reasonably
required by Landlord or Landlord's mortgagee.
34. SUCCESSORS: This Lease shall be binding upon and inure to the
benefit of Landlord and Tenant and their respective heirs, personal
representatives, successors and assigns. It is hereby covenanted and agreed that
should Landlord's interest in the Leased Premises cease to exist for any reason
during the term of the Lease, then notwithstanding the happening of such event
this Lease shall nevertheless remain unimpaired and in full force and effect and
Tenant hereunder agrees to attorn to the then owner of the Leased Premises.
35. REAL ESTATE COMMISSION: Tenant represents and warrants that it has
dealt with no broker, agent, or other person in connection with this transaction
and that no other broker, agent, or other person brought about this transaction
other than Xxx Xxxx of Xxxxxxx-Xxxxxxx; and Tenant agrees to indemnify and hold
Landlord harmless from and against any claims by any other broker, agent, or
other person 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 shall survive the termination of this Lease.
36. EXPANSION: If during the term of this Lease, Tenant occupies, under
a new written lease with Landlord, space of a size substantially larger than the
present Leased Premises within any development owned by Landlord, this Lease
shall be terminated upon execution of the Lease for such substitute space.
Notwithstanding the above-stated, Tenant shall remain obligated to pay for any
Rents or other sums due Landlord as a result of Tenant's tenancy hereunder, and
such obligation shall survive the termination of this Lease pursuant to this
Paragraph 36.
37. MECHANIC'S LIENS: Tenant shall have no authority, express or
implied, to create or place any lien or encumbrance of any kind or nature
whatsoever upon, or in any manner to bind, the interest of Landlord in the
Leased Premises or to charge the Rentals payable hereunder for any claim in
favor of any person dealing with Tenant, including those who may furnish
materials or perform labor for any construction or repairs. Each such claim
shall affect and each such lien shall attach to, if at all, only the leasehold
interest granted to Tenant by this Lease. Tenant covenants and agrees that it
will pay or cause to be paid all sums legally due and payable by it on account
of any labor performed or materials furnished in connection with any work
performed on the Leased Premises on which any lien is or can be validly and
legally asserted against its leasehold interest in the Leased Premises or the
improvements thereon. Tenant further agrees to save and hold Landlord harmless
from any and all loss, cost, or expense based on or arising out of asserted
claims or liens against the leasehold estate or against the right, title and
interest of the Landlord in the Leased Premises or under the terms of this
Lease. Under no circumstances shall Tenant be or hold itself out to be the agent
or representative of Landlord with respect to any alteration of the Leased
Premises whether or not consented to or approved by Landlord hereunder.
38. ENTIRE AGREEMENT, AND LIMITATION OF WARRANTIES: It is expressly
agreed by Tenant, as a material consideration for the execution of this Lease,
that this Lease is the entire agreement of the parties and that there are and
were no verbal representations, warranties, understandings, stipulations,
agreements, or promises pertaining to this Lease not incorporated in this Lease.
Landlord and Tenant expressly agree that there are and shall be no implied
warranties of merchantability of fitness or of any other kind arising out of
this Lease and that Tenant's acceptance of the Leased Premises shall be "as is".
It is likewise agreed that this Lease may not be altered, waived, amended, or
extended except by an instrument in writing signed by both Landlord and Tenant.
Not in limitation upon the foregoing, Landlord agrees that to the extent
assignable, all warranties, if any shall exist, from contractors or suppliers
with respect to the improvements to the Leased Premises hereunder are hereby
assigned to Tenant.
39. MISCELLANEOUS:
(a) Words of any gender used in this Lease shall be held and
construed to include any other gender; and words in the singular number shall be
held to include the plural, unless the context otherwise requires.
(b) Each party agrees to furnish to the other, promptly upon
demand, a corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization and power of such
party to enter into this Lease.
(c) The captions inserted in this Lease are for convenience only
and in no way define, limit, or otherwise describe the scope or intent of this
Lease or any provision hereof, or in any way affect the interpretation of this
Lease.
(d) If any clause or provision of this Lease is illegal,
invalid, or unenforceable under present or future laws effective during the term
of this Lease, then and in that event, it is the intention of the parties hereto
that the remainder of this Lease shall not be affected thereby; and it is also
the intention of the parties to this Lease that in lieu of each clause or
provision of this Lease that is illegal, invalid, or unenforceable there be
added as a part of this Lease a clause as similar in terms to such illegal,
invalid, or unenforceable clause or provision as may be possible and be legal,
valid, and enforceable.
(e) Because the Leased Premises are on the open market and are
presently being shown, this Lease shall be treated as an offer to lease only.
Unless and until this Lease is accepted by Landlord and Tenant in writing and a
fully executed copy delivered to both parties, this offer is subject to
withdrawal or non-acceptance by Landlord and the Leased Premises may be leased
to another party or used for another purpose by Landlord without notice.
(f) All references in this Lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on which
all parties hereto have executed this Lease.
-9-
10
(g) If the Commencement Date shall be determined under
Paragraphs 4(b) or (c) of this Lease. Landlord and Tenant shall enter into an
agreement in recordable form setting forth the Commencement Date and Termination
Date of the Lease term.
(h) In the event that Tenant shall fail to perform any duty or
obligation hereunder, whether maintenance, repair or replacement of the Leased
Premises, maintenance of insurance, or otherwise, then Landlord may, but shall
in no event be obligated to, without notice of any kind, take such actions as
Landlord deems necessary or appropriate to remedy such Tenant failure, and any
sums expended by Landlord and fair and just compensation for the time and effort
of Landlord shall be deemed additional Rental hereunder due and payable by
Tenant on demand.
(i) If Tenant shall fail to pay, when the same is due and
payable, any Rent, any additional Rent, or any other sum due hereunder, such
unpaid amount shall bear interest from the due date thereof to the date of
payment at the highest non-usurious rate permitted by applicable law.
(j) Landlord does not in any way or for any purpose become a
partner of Tenant in the conduct of its business or otherwise, nor a member of a
joint venture with Tenant.
(k) Tenant shall not record this Lease without the prior written
consent of Landlord. However, upon the request of either party hereto, the other
party shall join in the execution of a memorandum or so-called "short form" of
this Lease for the purposes of recordation.
(l) Time is of the essence in the performance of all the
covenants, conditions, and agreements contained in this Lease.
(m) Any duty, obligation, or debt and any right or remedy
arising hereunder and not otherwise consummated and/or extinguished by the
express terms hereof at or as of the time of termination of this Lease, whether
at the end of the term hereof or otherwise, shall survive such termination as
continuing duties, obligations, and debts of the obligated party to the other or
continuing rights and remedies of the benefited party against the other.
(n) This Agreement may be executed in one or more counterparts,
each of which counterparts shall for all purposes be deemed to be an original;
but all such counterparts together shall constitute but one instrument.
(o) Attached hereto, marked Exhibit "A" through Exhibit "D", are
certain exhibits to this Lease all of which are hereby incorporated herein by
reference.
40. NOTICE:
(a) All Rent and other payments required to be made by Tenant
shall be payable to Landlord at the address set forth below or any other address
Landlord may specify from time to time by written notice delivered to Tenant.
(b) All payments, if any, required to be made by Landlord to
Tenant shall be payable to Tenant at the address set forth below or at any other
address within the United States as Tenant may specify from time to time by
written notice
(c) Any notice or document required or permitted to be delivered
by this Lease shall be deemed to be delivered (whether or not actually received)
when deposited in the United States Mail, postage prepaid, certified mail, or
return receipt requested, addressed to the parties at the respective addresses
set out below or such other address as hereinafter specified by notice given in
accordance with this paragraph.
LANDLORD: TENANT:
Xxxxxxx-Xxxx Partners No. 33, Ltd. KLA Instruments Corporation
---------------------------------- ---------------------------
0000 Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 000 000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000
-------------------------------------- ------------------------------------
Xxxxxx, Xxxxx 00000 Richardson, Texas
------------------- -----------------
EXECUTED by Landlord and Tenant on the date below stated as their
respective Dates of Execution.
LANDLORD TENANT
Xxxxxxx-Xxxx Partners No. 33, Ltd. KLA Instruments Corporation
---------------------------------- ---------------------------
By: /s/ XXXX X. XXXXXXXXXXX By: /s/
-------------------------------- ---------------------------------
Xxxx X. Xxxxxxxxxxx, Attorney-in-Fact /s/
------------------------------------- ------------------------------------
(Type Name and Title) (Type Name and Title)
Date of Execution: Date of Execution:
4/21/89, 198__ ______, ____________________, 1989
-10-
11
EXHIBIT "A"
Being a tract of land situated in the Xxxxxx Xxxxxxxx Survey, Abstract No. 265
City of Xxxxxxxxxx, Xxxxxx County, Texas and being more particularly describes
as follows:
BEGINNING at an Iron rod set for corner situated In the intersection of the
North line of Apollo Road and the West line of International Parkway;
THENCE S 89 degree 22' 17" W along the North line of said Apollo Road a distance
of 185.95 feet to an Iron rod set for corner, said rod also being the beginning
of a curve to the right and having a central angle of 08 degree 35' 53", a
radius of 1300.32', and a tangent of 97.75':
THENCE along said curving line of Apollo Road an are distance of 195.13 feet to
an Iron rod set for corner;
THENCE N 82 degree 01' 50" W and continuing along said North line of Apollo Road
a distance of 1.95 feet to an Iron rod set for corner, said rod also being the
beginning of a curve to the left and having a central angle of 03 degree 36'
58", a radius of 1456.13', and a tangent of 45.97';
THENCE along said curving line of Apollo Road an are distance of 91.90 feet to
an Iron rod set for corner;
THENCE N 00 degree 37' 43" W departing the North line of Apollo Road a distance
of 569.19 feet to an Iron rod set for corner;
THENCE N 89 degree 22' 17" E a distance of 473.52 feet to an Iron rod set for
corner, said rod also being on the West line of aforementioned International
Parkway;
THENCE S 00 degree 37' 43" E along said West line of International Parkway a
distance of 594.96 feet to the POINT OF BEGINNING and containing 6.4016 acres of
278,852 square feet of land more or less.
[CHART OMITTED]
12
EXHIBIT "B"
See Space Plans
Plans and Specifications for Construction to follow!
13
EXHIBIT "C"
RULES AND REGULATIONS
The following Rules and Regulations are prescribed by Landlord in order
to provide and maintain, to the best of Landlord's ability, orderly, clean and
desirable leased premises building and parking facilities for the Tenants
therein and to regulate conduct in and use of leased premises, the building and
parking facilities in such a manner as to minimize interference by others in the
proper use of leased premises by Tenant. In the following Rules and Regulations,
all references to Tenant include not only the Tenant, but, also, Tenant's
agents, servants, employees, invitees, licensees, visitors, assignees, and/or
sublessees:
1. Tenant shall not block or obstruct any of the entries, passages,
doors, hallways, or stairways of building or parking area, or place, empty, or
throw any rubbish, litter, trash, or material of any nature into such areas, or
permit such areas to be used at any time except for ingress or egress of
Tenants.
2. Landlord will not be responsible for lost or stolen personal
property, equipment, money, or any article taken from the leased premises,
building, or parking facilities regardless of how or when loss occurs.
3. The plumbing facilities shall not be used for any other purpose than
that for which they are constructed, and no foreign substance of any kind shall
be placed therein, and the expense of any breakage, stoppage, or damage
resulting from a violation of this provision shall be borne by Tenant.
4. Tenant shall permit Landlord, during the six (6) months prior to the
termination of this lease to show leased premises during business or nonbusiness
hours to prospective lessees and to advertise leased premises for rent.
5. Any additional keys required by Tenant during the term of the lease
shall be requested from Landlord and shall be paid for by Tenant upon delivery
of keys to premises, In the event new locks are requested by Tenant, then all
costs associated with such request (including hardware, installation and keys)
shall be paid by Tenant.
6. The common parking facilities are available for use by any and all
Tenants. Landlord reserves the right to assign or allocate parking in the event
of conflicts, abuse or improper use of these common parking facilities. It is
generally understood that any Tenant should utilize only those parking spaces
immediately adjacent to that Tenant's specific leased premises.
Proper use of the common parking facilities is deemed to be that use
which is occasioned by the normal in and out traffic required by the Tenant, in
the normal course of the Tenant's business operations.
Vehicles that are abandoned, disabled, have expired registration
stickers, obstructing any means of ingress or egress to any leased premises, or
in any way a general nuisance or hazard are subject to removal without notice by
Landlord's designated wrecker and towing service. All costs associated with such
removal shall be at the Tenant's/Vehicle Owner's expense.
7. Tenant shall not use the building, leased premises, or parking
facilities for housing, lodging, or sleeping purposes without the express
consent of Landlord in writing.
14
EXHIBIT "D"
Options
Right of First Refusal
Landlord will provide Tenant with notice that adjacent space has been offered to
another prospective user.
Tenant shall have five (5) business days to execute this Right of First Refusal
by signing a new Lease Agreement for the adjacent area.
If Tenant elects not to lease adjacent space, this Right of First Refusal is
then cancelled and considered null and void.
Renewal option
Tenant shall have, and is hereby granted, one (1) option to renew and to extend
the term of this Lease for a period of thirty-six (36) months (the "Renewal
Term"), such option to follow consecutively upon the expiration of the initial
sixty (60) month term of this Lease, provided that at the time such option to
renew is exercised, this Lease shall be in full force and effect and Tenant
shall not be in default hereunder. Such option shall be exercised, if at all, by
Tenant giving written notice of its intention to renew and extend the term of
this Lease to Landlord at least one hundred eighty (180) days before the
expiration of the initial sixty (60) month term of this Lease. Any assignment or
subletting by Tenant in violation or breach of Paragraph 10 of this Lease shall
terminate all rights of renewal and extension set forth herein. The renewal, if
elected by Tenant, shall be under all of the terms and conditions of this Lease
except Basic Rental (below provided), except the amount of Security Deposit,
which will be increased in an amount corresponding to the new Basic Rental, and
except that no further renewal option shall exist.
Commencing with the first (1st) day of the first (1st) calendar month for the
Renewal Term, the applicable annual Basic Rental for each calendar month for the
Renewal Term shall be adjusted so that it is equal to the prevailing market rate
per annum for comparable space available in buildings of a quality similar to
the Building within reasonable proximity thereto at such time, provided however,
in no event shall such adjusted Basic Rental be less than the product of
multiplying the number of months of the Renewal Term by the Monthly Rental
Payment for the last full month of the Lease Term.
[?? Text Illegible ??]
15
AMENDMENT, MODIFICATION AND RATIFICATION OF LEASE
July 13, 1989
This Amendment, Modification and Ratification of Lease is executed on
the date last below stated by and between Xxxxxxx-Xxxx Partners No. 33, Ltd.
("Landlord"), and KLA Instruments Corporation ("Tenant").
By Commercial Lease Agreement (the "Lease"), dated June 21, 1989,
Landlord leased to Tenant 3,151 square feet of office space in the building
described as International Corporate Park II, located at 000 Xxxxxxxxxxxxx
Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx, for a term of Sixty (60) months,
beginning January 1, 1990. Tenant has requested that additional space in the
building be added to the Lease, and Landlord and Tenant have agreed upon such
expansion in accordance with the terms of this Amendment. References in this
Amendment are to the numbered Paragraphs in the Lease.
In consideration of the mutual obligations and benefits hereof, Landlord
and Tenant agree as follows:
1. Beginning January 1, 1990, and ending on the Termination date, December 31,
1994, the 840 square foot portion of the building marked on a floor plan
thereof and attached hereto as Exhibit "A" dated July 13, 1989 incorporated
herein by reference, shall be added to the Leased Premises under all the
terms, conditions and obligations of the Lease, except as otherwise herein
expressly provided. Total square footage leased to Tenant shall be 3,991 s.f.
and Tenant's address shall not change.
2. Base Rentals for this Sixty month (60) period with respect to the Total
Leased Premises is One Hundred Thirty Seven Thousand Seven Hundred and No/100
Dollars ($137,700.00) payable as Base Rentals under the Lease in monthly
installments of Two Thousand Two Hundred Ninety-five and No/100 ($2,295.00)
each beginning January 1, 1990.
3. With respect to the Total Rentable Space, the expense stop (Paragraph 6(a))
shall be $0.75 p.s.f., and Tenant's pro rata share of Tax and Insurance
expenses with respect to the Total Rentable Space shall now be Twenty-four
and 2/10 24.2%.
4. Except as expressly hereby modified, the Lease is hereby ratified and
affirmed in all respects.
LANDLORD: TENANT:
XXXXXXX-XXXX PARTNERS NO. 33, LTD. KLA INSTRUMENTS CORPORATION
/s/ XXXX X. XXXXXXXXXXX /s/ XXXXXX XXXX 7-19-89
------------------------------------- -------------------------------
Xxxx X. Xxxxxxxxxxx, Attorney-in-Fact Xxxxxx Xxxx, Treasurer
16
?? along said curving line of Apollo Road an arc distance of 195.13 feet to an
iron rod set for corner;
THENCE N 82 degree 01' 50" W and continuing along said North line of Apollo Road
a distance of 1.95 feet to an iron rod set for corner, said rod also being the
beginning of a curve to the left and having a central angle of 03 degree 36'
58", a radius of 1456.13', and a tangent of 45.97';
THENCE along said curving line of Apollo Road an arc distance of 91.90 feet to
an iron rod set for corner;
THENCE N 00 degree 37' 43" W departing the North line of Apollo Road a distance
of 569.19 feet to an iron rod set for corner;
THENCE N 89 degree 22' 17" E a distance of 473.52 feet to an iron rod set for
corner, said rod also being on the West line of aforementioned International
Parkway;
THENCE S 00 degree 37' 43" E along said West line of International Parkway a
distance of 594.96 feet to the POINT OF BEGINNING and containing 6,4016 acres of
278,852 square feet of land more or less.
[CHART OMITTED]
17
SECOND, AMENDMENT, MODIFICATION AND RATIFICATION OF LEASE
June 29, 1990
This Second Amendment, Modification and Ratification of Lease is
executed on the date last below stated by and between Xxxxxx Real Estate
Corporation and KLA Instruments Corporation ("Tenant").
By Commercial Lease Agreement (the "Lease"), dated June 21, 1989 and
amended on 7-19-89 Landlord leased to Tenant 3,991 square feet of office space
in the building described as International Corporate Park II, located at 000
Xxxxxxxxxxxxx Xxxxxxx, Xxxxx 000. Richardson, Texas, for a term of Sixty (60)
months, beginning January 1, 1990. Tenant has requested that additional space in
the building be added to the Lease, and Landlord and Tenant have agreed upon
such expansion in accordance with the terms of this second amendment. References
in this Amendment are to the numbered Paragraphs in the Lease.
In consideration of the mutual obligations and benefits hereof, Landlord
and Tenant agree as follows:
1. Beginning November 1, 1990, and ending on the new Termination date September
30, 1995, the 760 square foot portion of the building marked on a floor plan
thereof and attached hereto as Exhibit "A" dated June 29, 1990 Incorporated
herein by reference, shall be added to the Leased Premises under all the
terms, conditions and obligations of the Lease, except as otherwise herein
expressly provided. Total square footage leased to Tenant shall be 4,751 s.f.
and Tenant's address shall not change.
2. Base Rentals for this new sixty month (60) period with respect to the Total
Leased Premises is One Hundred Seventy-five Thousand Seven Hundred Forty and
No/100 ($175,740.00) payable as Base Rentals under the Lease in monthly
Installments of Two Thousand Nine Hundred Twenty-Nine and No/100 ($2,929.00)
each beginning November 1, 1990.
3. With respect to the Total Rentable Space, the expense stop (Paragraph 6(a))
shall be $0.75 p.s.f., and Tenant's pro rata share of Tax and Insurance
expenses and Common Area Maintenance with respect to the Total Rentable Space
shall now be Twenty-eight percent and 8/10 (28.8%).
4. Except as expressly hereby modified, the Lease is hereby ratified and
affirmed in all respects.
LANDLORD: TENANT:
XXXXXX REAL ESTATE CORPORATION KLA INSTRUMENTS CORPORATION
/s/ Signature Illegible /s/ F.S. XXXXXXX ROM
------------------------------ ---------------------------------
Director of F.S. XXXXXXX ROM,
/s/ XXXX PEFELY
---------------------------------
CONTROLLER, XXXX PEFELY
18
[EXHIBIT OMITTED]
19
THIRD AMENDMENT OF COMMERCIAL LEASE AGREEMENT
THIS THIRD AMENDMENT OF COMMERCIAL LEASE AGREEMENT (the "Amendment"), is
entered into as of the ?? day of ??, 1995 by and between XXXXXX REAL ESTATE
CORPORATION, a Delaware corporation ("Landlord"), and KLA INSTRUMENTS
CORPORATION, a DELAWARE corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Xxxxxxx-Xxxx Partners No. 33, Ltd. ("Original Landlord") and
Tenant, entered into that certain Commercial Lease Agreement executed by
Original Landlord on or about June 21, 1989 (the "Commercial Lease") pursuant to
which Original Landlord agreed to lease to Tenant the premises (the "Original
Premises") consisting of Suite 209 containing approximately 3,151 rentable
square feet of floor area in the Building, as more fully described in the
Commercial Lease, situated in International Corporate Park, Phase II located at
000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxx.
WHEREAS, Original Landlord and Tenant, amended the Commercial Lease by
entering into that certain Amendment, Modification and Ratification of Lease
(the "First Amendment") dated July 13, 1989 pursuant to which 000 xxxxxxxx
xxxxxx xxxx xx xxxxx xxxx were added to the Original Premises and the Commercial
Lease was otherwise amended as set forth therein.
WHEREAS, Landlord and Tenant further amended the Commercial Lease by
entering into that certain Second Amendment, Modification and Ratification of
Lease (the "Second Amendment") dated June 29, 1990 pursuant to which 000
xxxxxxxx xxxxxx xxxx xx xxxxx xxxx were added to the Leased Premises and the
Commercial Lease was otherwise amended as set forth therein (the Commercial
Lease, the First Amendment and the Second Amendment are collectively referred to
herein as the "Lease").
WHEREAS, Landlord and Tenant desire to (i) extend the term of the Lease
for a period of five (5) years, (ii) add to the Leased Premises the Additional
Premises (as hereinafter defined), and (iii) amend certain other terms and
provisions of the Lease as set forth herein.
NOW, THEREFORE, for and in consideration of the mutual terms and
conditions set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
1. "Additional Premises" means 1,923 rentable square feet of floor area
in the Building as depicted on Schedule 1 attached hereto and made a part hereof
for all purposes.
2. "Additional Premises Commencement Date" means the earlier of (i)
October 1, 1995, or (ii) the date on which Tenant first occupies the Additional
Premises (or any part thereof) for the conduct of its business.
3. Effective as of the Additional Premises Commencement Date, the
Additional Premises shall be part of the Leased Premises, and all references in
the Lease and herein to the "Leased Premises" and/or the "Premises" shall be
deemed to collectively refer to the Premises and the Additional Premises.
4. Section 4 of the Lease is hereby amended to provide that the
Termination Date is September 30, 2000.
5. From the Additional Premises Commencement Date through the remainder
of the term of the Lease, annual Base Rent for the Leased Premises shall be
$48,386.50, payable in monthly payments of $4,032.21 (pro-rated for partial
calendar months as set forth in the Lease).
6. As of the Additional Premises Commencement Date the pro rata share to
be paid by Tenant (referenced in Subparagraph 6(a)(1) of the Original Lease,
Paragraph 3 of the First Amendment and Paragraph 3 of the Second Amendment) is
changed to reflect that the Leased Premises contain 40.52% of the rentable area
of the Building.
7. The Tax and Insurance Differential (see Paragraph 6(a) of the Lease)
shall be adjusted as of October 1, 1995 to reflect a 1995 base year expense
stop. In other words,
20
commencing October 1, 1995 for any calendar year (or applicable portion thereof)
the Tax and Insurance Differential shall be the amount by which Tax and
Insurance Expenses for such calendar year (or applicable portion thereof) exceed
the Tax and Insurance Expenses for calendar year 1995 (or the applicable
prorated portion thereof).
8. Paragraph 6(b) of the Lease is hereby amended as follows:
(a) As of October 1, 1995, the first sentence of Paragraph 6(b)
of the Lease is hereby amended to reflect a 1995 base year expense stop.
In other words, commencing October 1, 1995 for any calendar year (or
applicable portion thereof) Tenant shall be obligated to pay its pro
rata share of the amount by which the Common Area Maintenance Expenses
for such calendar year (or applicable portion thereof) exceed the Common
Area Maintenance Expenses for calendar year 1995 (or the applicable
prorated portion thereof).
(b) In the event that during all or any portion of any calendar
year the Building is not fully rented or fully occupied, Landlord may
elect to make an appropriate adjustment in the Common Area Maintenance
Expenses for such calendar year by determining the Common Area
Maintenance Expenses that would have been incurred had the Building been
ninety-five (95%) rented and occupied, and the amount so determined
shall be deemed to have been the Common Area Maintenance Expenses for
the applicable period.
(c) Notwithstanding anything to the contrary contained in this
Amendment or in the Lease, for purposes of calculating Common Area
Maintenance Expenses for the period beginning January 1, 1996 and for
each year thereafter (or portion hereof) for the remainder of the term
of the Lease, the components of Common Area Maintenance Expenses
involving management fees and wages and fringe benefits payable to
employees of Landlord shall not annually increase by more than eight
percent (8%) in the aggregate and calculated on a cumulative and
compounded basis.
9. Notwithstanding anything in Paragraph 7(a) of the Lease to the
contrary Landlord and Tenant hereby agree as follows:
In the event the maintenance contractor engaged pursuant to
Paragraph 7(d) of the Lease reasonably determines that it is
necessary to replace the heating and air conditioning system(s)
serving the Leased Premises (the "HVAC"), Landlord shall cause
such HVAC to be replaced and the monthly Base Rent payments
under the Lease shall immediately be increased by an amount
which would cause the full amount of all costs incurred by
Landlord for the HVAC replacement, together with interest
thereon at the rate of twelve percent (12%) per annum, to be
repaid to Landlord over a five (5) year period. Nothing in the
immediately preceding sentence shall in any way obviate Tenant's
obligations under the Lease to maintain and repair the HVAC.
10. Notwithstanding anything in the Lease to the contrary, construction
of leasehold improvements (the "Leasehold Improvements") in the Leased Premises
and the Construction Allowance as defined in Schedule 2 hereof, shall be
governed by Schedule 2 attached hereto and made a part hereof for all purposes.
11. Tenant shall be responsible, at Tenant's sole cost and expense, for
compliance with the law commonly known as the "Americans With Disabilities Act",
as amended ("ADA") as such compliance relates to the Leased Premises. Tenant
shall be responsible, at Tenant's sole cost and expense, for compliance with any
and all present and future laws, rules and/or regulations regarding air quality
as such compliance relates to the Leased Premises. Landlord shall be responsible
for compliance with the ADA as such compliance relates to the common areas of
the Building. Any expenses incurred by Landlord in connection with such
compliance shall be included in Common Area Maintenance Expenses.
12. Exhibit D of the Lease is hereby deleted from the Lease in its
entirety. Schedule 3 attached hereto is hereby made a part of the Lease and a
part hereof for all purposes.
13. All capitalized terms used in this Amendment and not otherwise
defined herein, shall have the meaning ascribed to such terms in the Lease.
2
21
14. The Lease, as amended herein, is hereby ratified and confirmed and
shall continue in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first set forth above.
LANDLORD:
XXXXXX REAL ESTATE CORPORATION,
a Delaware corporation
By: /s/Signature Illegible
--------------------------------
Name: /s/Signature Illegible
------------------------------
Title: /s/Signature Illegible
-----------------------------
TENANT:
KLA INSTRUMENTS CORPORATION,
a ___________ corporation
By: /s/Signature Illegible
--------------------------------
Name:
------------------------------
Title:
-----------------------------
3
22
SCHEDULE 1
[CHART OMITTED]
1
23
SCHEDULE 2
LEASEHOLD IMPROVEMENTS
1. Construction of Leasehold Improvements. Tenant shall retain its own
contractor to construct and install leasehold improvements in or respecting the
Leased Premises (the "Leasehold Improvements"), pursuant to a written
construction contract (the "Construction Contract") and subject to and in
accordance with this Schedule 2. Landlord and Tenant expressly understand and
agree (i) that Landlord shall have no responsibility or obligation for the
construction and installation of the Leasehold Improvements in and to or
respecting the Leased Premises, and (ii) Landlord shall have no responsibility
or obligation to pay for any of the Leasehold Improvements, except for the
Construction Allowance.
2. Tenant's Contractor. Landlord shall have the right to approve
Tenant's selection of the contractor ("Tenant's Contractor") to construct the
Leasehold Improvements. Landlord shall have no obligation or duty to ensure
timely completion of, or supervise or manage in any way, the construction of the
Leasehold Improvements, and Landlord shall have no obligation to provide
builder's risk or other insurance on behalf of Tenant or Tenant's Contractor.
Landlord will cooperate with Tenant in the manner provided in subparagraphs (a)
and (b) below.
(a) Access. Tenant shall be entitled to immediate possession of
the Leased Premises for the purpose of constructing Tenant's Leasehold
Improvements. Landlord shall take reasonable steps to provide any
contractors and/or subcontractors engaged by Tenant and approved by
Landlord with access to the common areas of the Building and to the
Leased Premises as is reasonably necessary in order to allow Tenant to
construct the Leasehold Improvements, subject to such requirements,
rules and regulations as Landlord may reasonably impose from time to
time.
(b) Water and Electrical Power. Landlord will provide to Tenant
and Tenant's Contractor water and electrical power to the Leased
Premises 24 hours per day, 7 days per week during the period of
construction of the Leasehold Improvements.
3. Construction Allowance.
(a) Landlord shall provide to Tenant an allowance (the
"Construction Allowance") not to exceed $38,992.00 to be used by Tenant
to construct and install the Leasehold Improvements in the Leased
Premises upon the terms and conditions set forth in this Schedule 2.
Landlord and Tenant agree that Landlord shall own the Leasehold
Improvements as constructed by Tenant and Tenant shall have no right or
interest in the Leasehold Improvements except as a lessee hereunder. The
cost of the Leasehold Improvements shall include all costs of labor and
materials for the physical improvements to the Leased Premises
including, but not limited to, partitioning, doors, frames, hardware,
millwork, finishes, mechanical work and electrical work, plus fees and
overhead to Tenant's Contractor. Any portion of the Construction
Allowance not used for construction of the Leasehold Improvements shall
be forfeited by Tenant and Tenant shall not receive such unused portion
of the Construction Allowance or any credit therefor.
(b) Landlord shall disburse the Construction Allowance to Tenant
to enable Tenant to make progress payments to pay costs of constructing
and installing the Leasehold Improvements until the Construction
Allowance has been fully exhausted; provided, that Landlord shall not be
obligated to disburse funds for materials stored off-site, and provided
further, that Landlord receives from Tenant and is reasonably satisfied
with the form and content of (a) a request for payment, (b) a copy of a
certificate signed by Tenant's architect certifying the percentage of
completion of the Leasehold Improvements and approving payment of an
amount at least equal to the amount set forth in Tenant's request for
payment, (c) partial releases of liens and/or lien waivers from Tenant's
Contractor and subcontractors requesting payment, and (d) a copy of the
Construction Contract (collectively, the "Back-Up"). Landlord shall not
be obligated to make any payment of the Construction Allowance at any
time there is an
1
24
unbonded lien outstanding against the Building or the Leased Premises or
Tenant's interest therein by reason of work done, or claimed to have
been done, or materials supplied, or claimed to have been supplied, to
or for Tenant or the Leased Premises or if the conditions to advances of
the Construction Allowance are not satisfied. Notwithstanding anything
in this Paragraph 3 to the contrary Landlord shall not be required to
make more than one (1) advance during any calendar month.
4. Compliance of Leased Premises. Tenant shall be responsible for
complying with laws, ordinances and regulations applicable to the Leasehold
Improvements.
5. Plans. Tenant's architect shall, at Tenant's expense, prepare all
plans and documents for the construction of the Leasehold Improvements, it being
understood and agreed, however, that all such plans and documents shall be
subject to Landlord's written approval. Tenant shall submit to Landlord final
working drawings for all Leasehold Improvements and such final working drawings
shall be subject to Landlord's prior approval. If there are any significant
changes by Tenant from the improvements set forth in the final working drawings
referred to above, each such change must receive the prior written approval of
Landlord. In the event of any change in the working drawings, Tenant shall, upon
completion of the Leasehold Improvements, furnish Landlord with an accurate
"as-built" plan of the portion of the Leasehold Improvements covered by such
changes as constructed. All design, construction and installation of the
Leasehold Improvements shall conform to the requirements of applicable building,
plumbing and electrical codes and the requirements of any authority having
jurisdiction with respect to such work. All plans and working drawings submitted
to Landlord for approval shall be deemed approved by Landlord on the fifteenth
(15th) business day after submission unless Landlord notifies Tenant to the
contrary.
6. Construction Contractors. Landlord shall have the right to approve
the mechanical, electrical and structural contractors and engineers retained by
Tenant or Tenant's Contractor. The mechanical, electrical and structural
contractors and engineers retained by Tenant or Tenant's Contractor shall be
deemed approved by Landlord on the fifteenth (15th) business day after their
names are submitted to Landlord unless Landlord notifies Tenant to the contrary.
Any contractors and/or subcontractors engaged shall comply with all standards
and regulations established by Landlord in its reasonable discretion, provided
that same have been furnished to Tenant in advance by Landlord. Such contractors
and subcontractors shall coordinate their efforts to ensure timely completion of
all work. During construction of any improvements, all contractors and
subcontractors shall coordinate with Landlord the movement of equipment and
materials. All contractors and subcontractors shall ensure that the work be
conducted in such manner so as to maintain harmonious labor relations and not to
interfere with Landlord's operation of the Building and/or the use of the
Building by other tenants. Tenant shall provide Landlord with a copy of the
Construction Contract for Landlord's approval, prior to full execution thereof.
In addition, Tenant shall provide Landlord with all reasonable information that
Landlord may request concerning the construction and installation of the
Leasehold Improvements. Tenant shall maintain builder's risk and other insurance
during the construction of the Leasehold Improvements in conformity with
Tenant's obligations to maintain insurance as set forth in the Lease and shall
provide Landlord with certificates evidencing such builder's risk and other
insurance.
7. Landlord's Approval. Any approval by Landlord or its architects of
any of Tenant's drawings, plans and specifications which are prepared in
connection with the construction of the Leasehold Improvements or any inspection
by Landlord of the Leasehold Improvements shall not in any way be construed or
operate to bind Landlord or to constitute a representation or warranty of
Landlord as to the adequacy of sufficiency of such drawings, plans and
specifications or the Leasehold Improvements to which they relate, for any use,
purpose or condition, but such approval shall merely be the consent of Landlord
as may be required hereunder in connection with the construction of Leasehold
Improvements.
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SCHEDULE 3
RENEWAL OPTION
Tenant shall have the right to renew and extend the term of this Lease
with respect to the Leased Premises then subject to this Lease for the Renewal
Term (herein so called) upon and subject to the following terms and conditions:
1. Tenant may extend this Lease for one (1) Renewal Term of five (5)
years by Tenant's giving written notice thereof to Landlord no later than April
1, 2000. The Renewal Term shall commence immediately upon the expiration of the
original term of this Lease (as extended by the Third Amendment of Commercial
Lease Agreement), and upon exercise of the renewal option the date of expiration
of the term of this Lease shall automatically become the last day of the Renewal
Term.
2. The exercise by Tenant of the renewal option set forth herein must be
made, if at all, by written notice executed by Tenant and delivered to Landlord
on or before the date set forth hereinabove. Once Tenant shall exercise the
renewal option, Tenant may not thereafter revoke such exercise. Tenant shall not
have the right to exercise the renewal option if Tenant is in default under this
Lease, either at the time Tenant gives notice of its election to renew, or
immediately prior to the commencement of the Renewal Term. Tenant's failure to
exercise timely the renewal option for any reason whatsoever shall conclusively
be deemed a waiver of such renewal option.
3. Tenant shall take the Leased Premises "as is" for the Renewal Term
and Landlord shall have no obligation to make any improvements or alterations to
the Leased Premises.
4. Base Rent for the Renewal Term shall be at the Fair Market Value Rate
(hereinafter defined) multiplied by the number of net rentable square feet of
floor space in the Leased Premises, provided, however, that in no event shall
the Base Rent for the Renewal Term be less than the Base Rent in effect
immediately prior to the expiration of the original term of this Lease (as
extended by the Third Amendment of Commercial Lease Agreement). For purposes
hereof the "Fair Market Value Rate" means the fair market rental rate per square
foot of net rentable square feet of floor space in the Leased Premises which
Landlord is charging for a comparable lease term at the appropriate time for
comparable tenants leasing space of comparable size similarly situated in the
Building.
5. Except as set forth in this Schedule 3, the leasing of the Leased
Premises for the Renewal Term shall be upon the same terms and conditions as are
applicable for the original term of this Lease (as extended by the Third
Amendment of Commercial Lease Agreement), and shall be upon and subject to all
of the provisions of this Lease, including without limitation the obligation of
Tenant to pay the amounts set forth in Paragraph 4 above.
3
