LEASE AGREEMENT
5/3/96
[Net Lease]
LEASE AGREEMENT
THIS LEASE AGREEMENT is made this 3 day of May, 1996, between SECURITY CAPITAL
INDUSTRIAL TRUST a Maryland real estate investment trust ("Landlord"), and the
Tenant named below.
Tenant: Novellus Systems, Inc., a California corporation
Tenant's representative, 81 Vista Montana
address, and phone no.: Xxx Xxxx, Xxxxxxxxxx 00000
(000) 000-0000
Premises: That portion of the Building, containing
approximately 16,644 rentable square feet, as
determined by Landlord, as shown on Exhibit A.
Project: Wilsonville Corporate Center Phase II
Building: D: Building more commonly known as 00000 XX 00xx
Xxxxxx, Xxxxxx 000-000, Xxxxxxxxxxx, XX 00000
Tenant's Proportionate Share
of Project: 9.4%
Tenant's Proportionate Share
of Building: 46.23%
Lease Term: Beginning on the Commencement Date and ending on
the last day of the 61st full calendar month
thereafter.
Commencement Date: July 1,1996
Initial Monthly Base Rent $7,260.00
Initial Estimated Monthly 1. Utilities: $ 0.00
Operating Expense Payments:
(estimates only and subject 2. Common Area Charges: $441.00
to adjustment to actual
costs and expenses
according to the 3. Taxes: $922.00
provisions of this Lease)
4. Insurance: $ 70.00
5. Others: $ 0.00
Initial Estimated Monthly Operating
Expense Payments: $1,433.00
Initial Monthly Base Rent and
Operating Expense Payments: $8,693.00
Security Deposit: None
Broker: Xxxx Xxxxx
Addenda: A,B,C,D,E,F,G,H,I,J,K
1. GRANTING CLAUSE. In consideration of the obligation of Tenant to pay
rent as herein provided and in consideration of the other terms, covenants, and
conditions hereof, Landlord leases to Tenant, and Tenant takes from Landlord,
the Premises, to have and to hold for the Lease Term, subject to the terms,
covenants and conditions of this Lease
2. ACCEPTED OF PREMISES. Tenant shall accept the Premises in its
condition as of the Commencement Date, subject to all applicable laws,
ordinances, regulations, covenants and restrictions. Landlord has made no
representation or warranty as to the suitability of the Premises for the conduct
of Tenant's business, and Tenant waives any implied warranty that the Premises
are suitable for Tenant's intended purposes. Except as
provided in Paragraph 10, in no event shall Landlord have any obligation for any
defects in the Premises or any limitation on its use. Landlord shall construct
the Building in a good and workmanlike manner, and in material compliance with
all zoning and building codes which are applicable to the construction thereof.
The taking of possession of the Premises shall be conclusive evidence that
Tenant accepts the Premises and that the Premises were in good condition at the
time possession was taken except for items that are Landlord's responsibility
under Paragraph 10 and any punchlist items agreed to in writing by Landlord and
Tenant.
3. Use. The Premises shall be used only for the purpose of: (i)
receiving, storing, shipping and selling (but limited to wholesale sales)
products, materials and merchandise made and/or distributed by Tenant and for
such other lawful purposes as may be incidental thereto; and (ii) technical
research, development and light manufacturing of products for the semi-conductor
industry, including but not limited to, chemical vapor deposition systems used
in the fabrication of integrated circuits but the use provided for in this
subparagraph (ii) shall be in complete conformance with every provision of this
Lease and be limited to the extent permitted by applicable Legal Requirements
(defined below). Tenant shall not conduct or give notice of any auction,
liquidation, or going out of business sale on the Premises. Tenant will use the
Premises in a careful, safe and proper manner and will not commit waste,
overload the floor or structure of the Premises or subject the Premises to use
that would damage the Premises. Tenant shall not permit any objectionable or
unpleasant odors, smoke, dust, gas, noise, or vibrations to emanate from the
Premises, or take any other action that would constitute a nuisance or would
disturb, unreasonably interfere with, or endanger Landlord or any tenants of the
Project. Outside storage, including without limitation, storage of trucks and
other vehicles, is prohibited without Landlord's prior written consent. Tenant,
at its sole expense, shall use and occupy the Premises in compliance with all
laws, including, without limitation, the Americans With Disabilities Act,
orders, judgments, ordinances, regulations, codes, directives, permits,
licenses, covenants and restrictions now or hereafter applicable to the Premises
(collectively, "Legal Requirements"). The Premises shall not be used as a place
of public accommodation under the Americans With Disabilities Act or similar
state statutes or local ordinances or any regulations promulgated thereunder,
all as may be amended from time to time. Tenant shall, at its expense, make any
alterations or modifications, within or without the Premises, that are required
by Legal Requirements related to Tenant's use or occupation of the Premises,
provided that Tenant shall not be required to make any structural alterations to
the Premises to comply with laws unless such compliance is required because of
Tenant's specific use of the Premises. Tenant will not use or permit the
Premises to be used for any purpose or in any manner that would void Tenant's or
Landlord's insurance, increase the insurance risk, or cause the disallowance of
any sprinkler credits. If any increase in the cost of any insurance on the
Premises or the Project is caused by Tenant's use or occupation of the Premises,
or because Tenant vacates the Premises, then Tenant shall pay the amount of such
increase to Landlord. Any occupation of the Premises by Tenant prior to the
Commencement Data shall be subject to all obligations of Tenant under this
Lease.
4. BASE RENT. Tenant shall pay Base Rent in the amount set forth above.
The first month's Base Rent, the Security Deposit, and the first monthly
installment of estimated Operating Expenses (as hereafter defined) shall be due
and payable on the date hereof, and Tenant promises to pay to Landlord in
advance, without demand, deduction or set-off, monthly installments of Base Rent
on or before the first day of each calendar month succeeding the Commencement
Date. Payments of Base Rent for any fractional calendar month shall be
prorated. All payments required to be made by Tenant to Landlord hereunder
shall be payable at such address as Landlord may specify from time to time by
written notice delivered in accordance herewith. The obligation of Tenant to
pay Base Rent and other sums to Landlord and the obligations of Landlord under
this Lease are independent obligations. Tenant shall have no right at any time
to xxxxx, reduce, or set-off any rent due hereunder except as may be expressly
provided in this Lease. If Tenant is delinquent in any monthly installment of
Base Rent or of estimated Operating Expenses for more than 5 days after the due
date thereof, and after notice as provided below, Tenant shall pay to Landlord
on demand a late charge equal to 5 percent of such delinquent sum. Tenant shall
not be obligated to pay the late charge until Landlord has given Tenant 5 days
written notice of the delinquent payment (which may be given at any time during
the delinquency); provided, however, that such notice shall not be required more
than twice in any 12-month period or four times over the Lease Term. The
provision for such late charge shall be in addition to all of Landlord's other
rights and remedies hereunder or at law and shall not be construed as a penalty.
5. INTENTIONALLY OMITTED.
6. OPERATING EXPENSE PAYMENTS. During each month of the Lease Term, on
the same date that Base Rent is due, Tenant shall pay Landlord an amount equal
to 1/12 of the annual cost, as estimated by Landlord from time to time, of
Tenant's Proportionate Share (hereinafter defined) of Operating Expenses for the
Project. Payments thereof for any fractional calendar month shall be prorated.
The term "Operating Expenses" means all costs and expenses incurred by Landlord
with respect to the ownership, maintenance and operation of the Project
including, but not limited to costs of: Taxes (hereinafter defined) and fees
payable to tax consultants and attorneys for consultation and contesting taxes;
insurance; utilities; maintenance, repair and replacement of all portions of the
Project, including without limitation, paving and parking areas, roads, roofs,
alleys, and driveways, mowing, landscaping, exterior painting, utility lines,
heating, ventilation and air conditioning systems, lighting, electrical systems
and other mechanical and building systems; amounts paid to contractors and
subcontractors for work or services performed in connection with any of the
foregoing; charges or assessments of any association to which the Project is
subject; property management fees payable to a property manager, including any
affiliate of Landlord, or if there is no property manager, an administration fee
of 15 percent of Operating Expenses payable to Landlord; security services, if
any; trash collection, sweeping and removal; and additions or alterations made
by Landlord to the Project or the Building in order to comply with Legal
Requirements (other than those expressly required herein to be made by Tenant)
or that are appropriate to the continued operation of the Project or the
Building as a bulk
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warehouse facility in the market area, provided that the cost of additions or
alterations that are required to be capitalized for federal income tax purposes
shall be amortized on a straight line basis over a period equal to the lesser of
the useful life thereof for federal income tax purposes or 10 years. Operating
Expenses do not include costs, expenses, depreciation or amortization for
capital repairs and capital replacements required to be made by Landlord under
Paragraph 10 of this Lease, debt service under mortgages or ground rent under
ground leases, costs of restoration to the extent of net insurance proceeds
received by Landlord with respect thereto, leasing commissions, or the costs of
renovating space for tenants.
If Tenant's total payments of Operating Expenses for any year are less
than Tenant's Proportionate Share of actual Operating Expenses for such year,
then Tenant shall pay the difference to Landlord within 30 days after demand,
and if more, then Landlord shall retain such excess and credit it against
Tenant's next payments. For purposes of calculating Tenant's Proportionate
Share of Operating Expenses, a year shall mean a calendar year except the first
year, which shall begin on the Commencement Date, and the last year, which shall
end on the expiration of this Lease. With respect to Operating Expenses which
Landlord allocates to the entire Project, Tenant's "Proportionate Share" shall
be the percentage set forth on the first page of this Lease as Tenant's
Proportionate Share of the Project as reasonably adjusted by Landlord in the
future for changes in the physical size of the Premises or the Project; and,
with respect to Operating Expenses which Landlord allocates only to the
Building, Tenant's "Proportionate Share" shall be the percentage set forth on
the first page of this Lease as Tenant's Proportionate Share of the Building as
reasonably adjusted by Landlord in the future for changes in the physical size
of the Premises or the Building. Landlord may equitably increase Tenant's
Proportionate Share for any item of expense or cost reimbursable by Tenant that
relates to a repair, replacement, or service that benefits only the Premises or
only a portion of the Project or Building that includes the Premises or that
varies with occupancy or use. The estimated Operating Expenses for the Premises
set forth on the first page of this Lease are only estimates, and Landlord makes
no guaranty or warranty that such estimates will be accurate.
7. UTILITIES. Tenant shall pay for all water, gas, electricity, heat,
light, power, telephone, sewer, sprinkler services, refuse and trash collection,
and other utilities and services used on the Premises, all maintenance charges
for utilities, and any storm sewer charges or other similar charges for
utilities imposed by any governmental entity or utility provider, together with
any taxes, penalties, surcharges or the like pertaining to Tenant's use of the
Premises. Landlord may cause at Tenant's expense any utilities to be separately
metered or charged directly to Tenant by the provider. Tenant shall pay its
share of all charges for jointly metered utilities based upon consumption, as
reasonably determined by Landlord. No interruption or failure of utilities
shall result in the termination of this Lease or the abatement of rent except
that, notwithstanding anything to the contrary contained in this Paragraph 7, if
an interruption or cessation of utilities, results from a cause within the
Landlord's reasonable control and the Premises are not usable by Tenant for the
conduct of Tenant's business as a result thereof, Base Rent and applicable
Operating Expenses not actually incurred by Tenant shall be abated for the
period which commences 48 hours after the date Tenant gives to Landlord notice
of such interruption until such utilities are restored. Tenant agrees to limit
use of water and sewer for normal restroom use.
8. TAXES. Landlord shall pay all taxes, assessments and governmental
charges (collectively referred to as "Taxes") that accrue against the Project
during the Lease Term, which shall be included as part of the Operating Expenses
charged to Tenant. Landlord may contest by appropriate legal proceedings the
amount, validity, or application of any Taxes or liens thereof. All capital
levies or other taxes assessed or imposed on Landlord upon the rents payable to
Landlord under this Lease and any franchise tax, any excise, transaction, sales
or privilege tax, assessment, levy or charge measured by or based, in whole or
in part, upon such rents from the Premises and/or the Project or any portion
thereof shall be paid by Tenant to Landlord monthly in estimated installments or
upon demand, at the option of Landlord, as additional rent; provided, however,
in no event shall Tenant be liable for any net income taxes imposed on Landlord
unless such net income taxes are in substitution for any Taxes, payable
hereunder. If any such tax or excise is levied or assessed directly against
Tenant, then Tenant shall be responsible for and shall pay the same at such
times and in such manner as the taxing authority shall require. Tenant shall be
liable for all taxes levied or assessed against any personal property or
fixtures placed in the Premises, whether levied or assessed against Landlord or
Tenant. Any special assessment for a local improvement district included in
Taxes shall be paid by Landlord in installments and Taxes shall only include
those installments payable by Landlord during the Lease Term.
9. INSURANCE. Landlord shall maintain all risk property insurance
covering the full replacement cost of the Building. Landlord may, but is not
obligated to, maintain such other insurance and additional coverages as it may
deem necessary, including, but not limited to, commercial liability insurance
and rent loss insurance. All such insurance shall be included as part of the
Operating Expenses charged to Tenant. The Project or Building may be included
in a blanket policy (in which case the cost of such insurance allocable to the
Project or Building will be determined by Landlord based upon the insurers cost
calculations). Tenant shall also reimburse Landlord for any increased premiums
or additional insurance which Landlord reasonably deems necessary as a result of
Tenant's use of the Premises.
Tenant, at its expense, shall maintain during the Lease Term: all risk
property insurance covering the full replacement cost of all property and
improvements installed or placed in the Premises by Tenant at Tenant's expense;
worker's compensation insurance with no less than the minimum limits required by
law; employer's liability insurance with such limits as required by law; and
commercial liability insurance, with a minimum limit of $1,000,000 per
occurrence and a minimum umbrella limit of $1,000,000, for a total minimum
combined general liability and umbrella limit of $2,000,000 (together with such
additional umbrella coverage as Landlord may
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reasonably require) for property damage, personal injuries, or deaths of persons
occurring in or about the Premises. Landlord may from time to time require
reasonable increases in any such limits. The commercial liability policies
shall name Landlord as an additional insured, insure on an occurrence and not a
claims-made basis, be issued by insurance companies which are reasonably
acceptable to Landlord, not be cancelable unless 30 days prior written notice
shall have been given to Landlord, contain a hostile fire endorsement and a
contractual liability endorsement and provide primary coverage to Landlord (any
policy issued to Landlord providing duplicate or similar coverage shall be
deemed excess over Tenant's policies). Such policies or certificates thereof
shall be delivered to Landlord by Tenant upon commencement of the Lease Term and
upon each renewal of said insurance.
The all risk property insurance obtained by Landlord and Tenant shall
include a waiver of subrogation by the insurers and all rights based upon an
assignment from its insured, against Landlord or Tenant, their officers,
directors, employees, managers, agents, invitees and contractors, in connection
with any loss or damage thereby insured against. Neither party nor its
officers, directors, employees, managers, agents, invitees or contractors shall
be liable to the other for loss or damage caused by any risk coverable by all
risk property insurance, and each party waives any claims against the other
party, and its officers, directors, employees, managers, agents, invitees and
contractors for such loss or damage. The failure of a party to insure its
property shall not void this waiver. Landlord and its agents, employees and
contractors shall not be liable for, and Tenant hereby waives all claims against
such parties for, business interruption and losses occasioned thereby sustained
by Tenant or any person claiming through Tenant resulting from any accident or
occurrence in or upon the Premises or the Project from any cause whatsoever,
including without limitation, damage caused in whole or in part, directly or
indirectly, by the negligence of Landlord or its agents, employees or
contractors.
10. LANDLORD'S REPAIRS. Landlord shall maintain, at its expense, the
structural soundness of the roof, foundation, floors, columns and exterior walls
of the Building in good repair, reasonable wear and tear and uninsured losses
and damages caused by Tenant, its agents and contractors excluded. The term
"walls" as used in this Paragraph 10 shall not include windows, glass or plate
glass, doors or overhead doors, special store fronts, dock bumpers, dock plates
or levelers, or office entries. Tenant shall promptly give Landlord written
notice of any repair required by Landlord pursuant to this Paragraph 10, after
which Landlord shall have a reasonable opportunity to repair. After Tenant
takes possession of the Premises, it shall within thirty (30) days thereafter
give notice to Landlord of items of construction that are Landlord's
responsibility that need repair or correction, and Landlord shall promptly
correct such "punchlist" items. Landlord shall also be responsible for
repairing any latent construction defects to the items which are Landlord's
responsibility to maintain at its expense under this Paragraph 10 and the Tenant
Improvements (as defined in Addendum B attacked hereto) which cannot reasonably
have been discovered by Tenant within such 30-day period. The cost of repairing
the construction defects referred to in the previous sentence shall not be
included in Operating Expenses for purposes of Tenant's Proportionate Share
thereof.
11. TENANT'S REPAIRS. Landlord, at Tenant's expense as provided in
Paragraph 6, shall maintain in good repair and condition the parking areas and
other common areas of the Building, including, but not, limited to driveways,
alleys, landscape and grounds surrounding the Premises. Subject to Landlord's
obligation in Paragraph 10 and subject to Paragraphs 9 and 15, Tenant, at its
expense, shall repair, replace and maintained in good condition all portions of
the Premises and all areas, improvements and systems exclusively serving the
Premises including, without limitation, dock and loading arm, truck doors,
plumbing, water and sewer lines up to points of common connection, fire
sprinklers and fire protection systems, entries, doors, ceilings and roof
membrane, windows, interior walls, and the interior side of demising walls,
and heating, ventilation and air conditioning systems. Such repair and
replacements include capital expenditures and repairs whose benefit may extend
beyond the Term. Heating, ventilation and air conditioning systems and other
mechanical and building systems serving the Premises shall be maintained at
Tenant's expense pursuant to maintenance service contracts entered into by
Tenant or, at Landlord's election, by Landlord. The scope of services and
contractors under such maintenance contracts shall be reasonably approved by
Landlord. At Landlord's request, Tenant shall enter into a joint maintenance
agreement with any railroad that services the Premises. If Tenant fails to
perform any repair or replacement for which it is responsible, Landlord may
perform such work and be reimbursed by Tenant within 10 days after demand
therefor. Subject to Paragraphs 9 and 15, Tenant shall bear the full cost of
any repair or replacement to any part of the Building or Project that results
from damage caused by Tenant, its agents, contractors, or invitees and any
repair that benefits only the Premises.
12. TENANT-MADE ALTERATIONS AND TRADE FIXTURES. Any alterations,
additions, or improvements made by or on behalf of Tenant to the Premises
("Tenant-Made Alterations"), other than Tenant's initial improvements (the
"Initial Tenant Improvements") to be made to the Premises as described in
Addendum C attached hereto) and modifications thereto which are not
structural in nature, shall be subject to Landlord's prior written consent.
Tenant shall cause, at its expense, all Tenant-Made Alterations to comply
with insurance requirements and with Legal Requirements and shall construct
at its expense any alteration or modification required by Legal Requirements
as a result of any Tenant-Made Alterations. All Tenant-Made Alterations
shall be constructed in a good and workmanlike manner by contractors
reasonably acceptable to Landlord and only good grades of materials shall be
used. All plans and specifications for any Tenant-Made Alterations shall be
submitted to Landlord for its approval. Landlord may monitor construction of
the Tenant-Made Alterations. Tenant shall reimburse Landlord for its costs
in reviewing plans and specifications and in monitoring construction.
Landlord's right to review plans and specifications and to monitor
construction shall be solely for its own benefit, and Landlord shall have no
duty to see that such plans and specifications or construction comply with
applicable laws, codes, rules and regulations. Tenant shall provide Landlord
with the identities and mailing addresses of all persons performing work or
supplying materials, prior to beginning such construction, and Landlord may
post on and about the Premises notices of
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non-responsibility pursuant to applicable law. Tenant shall furnish security or
make other arrangements satisfactory to Landlord to assure payment for the
completion of all work free and clear of liens and shall provide certificates of
insurance for worker's compensation and other coverage in amounts and from an
insurance company satisfactory to Landlord protecting Landlord against liability
for personal injury or property damage during construction. Upon completion of
any Tenant-Made Alterations, Tenant shall deliver to Landlord sworn statements
setting forth the names of all contractors and subcontractors who did work on
the Tenant-Made Alterations and final lien waivers from all such contractors and
subcontractors. Upon surrender of the Premises, all Tenant-Made Alterations and
any leasehold improvements constructed by Landlord or Tenant shall remain on the
Premises as Landlord's property, except for the following items which shall be
removed: (i) those Initial Tenant Improvements (as depicted on the Preliminary
Plans [as defined in Addendum C, Attachment 1 attached hereto]) constituting (a)
all improvements west of gridline C (except the restrooms, janitorial closet and
full height demising wall on gridline 3, all of which shall remain), (b) the
exterior equipment pad/tank farm (including the canopy and fence), (c) the HVAC
equipment related to the Tenant-Made Alterations to be removed (including
related screening), and (d) all roof equipment (except that supplying the office
area east of gridline C which shall remain); (ii) the Tenant-Made Alterations
which Landlord has specified for removal and which did not require Landlord's
consent; and (iii) the Tenant-Made Alterations which Landlord has specified for
removal in its consent to the same. Tenant shall repair any damage caused by
such removal and return the Premises to the condition required by Paragraph 21
below.
Tenant, at its own cost and expense and without Landlord's prior
approval, may erect such shelves, bins, machinery and trade fixtures
(collectively "Trade Fixtures") in the ordinary course of its business provided
that such items do not alter the basic character of the Premises, do not
overload or damage the Premises, and may be removed without injury to the
Premises, and the construction, erection, and installation thereof complies with
all Legal Requirements and with Landlord's requirements set forth above. Tenant
shall remove its Trade Fixtures and shall repair any damage caused by such
removal.
13. SIGNS. Tenant shall not make any changes to the exterior of the
Premises, install any exterior lights, decorations, balloons, flags, pennants,
banners, or painting, or erect or install any signs, windows or door
lettering, placards, decorations, or advertising media of any type which can be
viewed from the exterior of the Premises, without Landlord's prior written
consent. Upon surrender or vacation of the Premises, Tenant shall have removed
all signs and repair, paint, and/or replace the building face surface to which
its signs are attached. Tenant shall obtain all applicable governmental permits
and approvals for signs and exterior treatments. All signs, decorations,
advertising media, blinds, draperies and other window treatment or bars or other
security installations visible from outside the Premises shall be subject to
Landlord's approval and conform in all respects to Landlord's requirements.
14. PARKING. Tenant shall be entitled to park in common with other
tenants of the Project in those areas designated for nonreserved parking.
Landlord my allocate parking spaces among Tenant and other tenants in the
Project if Landlord determines that such parking facilities are becoming
crowded. Landlord shall not be responsible for enforcing Tenant's parking
rights against any third parties. Tenant shall be allotted a maximum of 35
parking spaces immediately adjacent to the Building. Tenant may also park in
the area directly adjacent to its loading doors provided such parking does
not interfere with the truck maneuvering or truck staging of other tenants in
the Project.
15. RESTORATION. If at any time during the Lease Term the Premises are
damaged by a fire or other casualty, Landlord shall notify Tenant within 30
days after such damage as to the amount of time Landlord reasonably estimates
it will take to restore the Premises. If the restoration time is estimated
to exceed 6 months from the date such casualty occurred, either Landlord or
Tenant may elect to terminate this Lease upon notice to the other party given
no later than 30 days after Landlord's notice. If neither party elects to
terminate this Lease or if Landlord estimates that restoration will xxxx 0
months or less from the date such casualty occurred, then, subject to receipt
of sufficient insurance proceeds (or insurance proceeds which would have been
received had Landlord maintained the insurance it is required to maintain
under Paragraph 9 above), Landlord shall promptly restore the Premises
excluding the improvements installed by Tenant or by Landlord and paid by
Tenant, subject to delays arising from the collection of insurance proceeds
or from Force Majeure events. Tenant at Tenant's expense shall promptly
perform, subject to delays arising from the collection of insurance proceeds,
or from Force Mejeure events, all repairs or restoration not required to be
done by Landlord and shall promptly re-enter the Premises and commence doing
business in accordance with this Lease. Notwithstanding the foregoing, either
party may terminate this Lease if the Premises are damaged during the last
year of the Lease Term and Landlord reasonably estimates that it will take
more than one month to repair such damage. Tenant shall pay to Landlord with
respect to any damage to the Premises the amount of the commercially
reasonably deductible under Landlord's insurance policy (but in no event more
than $10,000) within 10 days after presentment of Landlord's invoice. If the
damage involves the premises of other tenants, Tenant shall pay the portion
of the deductible that the cost of the restoration of the Premises bears to
the total cost of restoration, as determined by Landlord. Base Rent and
Operating Expenses shall be abated for the period of repair and restoration
in the proportion which the area of the Premises, if any, which is not usable
by Tenant bears to the total area of the Premises. Such abatement shall be
the sole remedy of Tenant, and except as provided herein, Tenant waives any
right to terminate the Lease by reason of damage or casualty loss.
16. CONDEMNATION. If any part of the Premises or the Project should be
taken for any public or quasi-public use under governmental law, ordinance, or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof (a "Taking" or "Taken"), and the Taking would prevent or materially
interfere with
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Tenant's use of the Premises or in Landlord's judgment would materially
interfere with or impair its ownership or operation of the Project, then upon
written notice by Landlord this Lease shall terminate and Base Rent shall be
apportioned as of said date. If part of the Premises shall be Taken, and this
Lease is not terminated as provided above, the Base Rent payable hereunder
during the unexpired Lease Term shall be reduced to such extent as may be fair
and reasonable under the circumstances. Tenant shall have the right to share in
the condemnation award (but not to make a separate claim against Landlord) to
the extent of reasonable compensation for the loss of its leasehold interest.
17. ASSIGNMENT AND SUBLETTING. Without Landlord's prior written consent,
which consent will not be unreasonably withheld, Tenant shall not assign this
Lease or sublease the Premises or any part thereof or mortgage, pledge, or
hypothecate its leasehold interest or grant any concession or license within the
Premises and any attempt to do any of the foregoing shall be void and of no
effect. For purposes of this paragraph, a transfer of the ownership interests
controlling Tenant shall be deemed an assignment of this Lease unless such
ownership interests are publicly traded. Notwithstanding the above, Tenant may
assign or sublet the Premises, or any part thereof, to any entity controlling
Tenant, controlled by Tenant or under common control with Tenant (a "Tenant
Affiliate"), without the prior written consent of Landlord. Tenant shall
reimburse Landlord for all of Landlord's reasonable out-of-pocket expenses in
connection with any assignment or sublease. Upon Landlord's receipt of Tenant's
written notice of a desire to assign or sublet the Premises, or any part thereof
(other than to a Tenant Affiliate), Landlord may, by giving written notice to
Tenant within 30 days after receipt of Tenant's notice, terminate this Lease
with respect to the space described in Tenant's notice, as of the date specified
in Tenant's notice for the commencement of the proposed assignment or sublease.
See Addendum H.
Notwithstanding any assignment or subletting, Tenant and any guarantor
or surety of Tenant's obligations under this Lease shall at all times remain
fully responsible and liable for the payment of the rent and for compliance with
all of Tenant's other obligations under this Lease (regardless of whether
Landlord's approval has been obtained for any such assignments or sublettings).
In the event that the rent due and payable by a sublessee, or assignee (or a
combination of the rental payable under such sublease or assignment plus any
bonus or other consideration therefor or incident thereto) exceeds the rental
payable under this Lease, then Tenant shall be bound and obligated to pay
Landlord as additional rent hereunder 50% of such excess rental and other excess
consideration within 10 days following receipt thereof by Tenant.
If this Lease be assigned or if the Premises be subleased (whether in
whole or in part) or in the event of the mortgage, pledge, or hypothecation of
Tenant's leasehold interest or grant of any concession or license within the
Premises or if the Premises be occupied in whole or in part by anyone other than
Tenant, then upon a default by Tenant hereunder Landlord may collect rent from
the assignee, sublessee, mortgagee, pledgee, party to whom the leasehold
interest was hypothecated, concessionee or licensee or other occupant and,
except to the extent set forth in the preceding paragraph, apply the amount
collected to the next rent payable hereunder; and all such rentals collected by
Tenant shall be held in trust for Landlord and immediately forwarded to
Landlord. No such transaction or collection of rent or application thereof by
Landlord, however, shall be deemed a waiver of these provisions or a release of
Tenant from the further performance by Tenant of its covenants, duties, or
obligations hereunder.
18. INDEMNIFICATION. Except for the negligence of Landlord, its agents,
employees or contractors, and to the extent permitted by law, Tenant agrees to
indemnify, defend and hold harmless Landlord, and Landlord's agents, employees
and contractors, from and against any and all losses, liabilities, damages,
costs and expenses (including attorneys' fees) resulting from claims by third
parties for injuries to any person and damage to or theft or misappropriation or
loss of property occurring in or about the Project and arising from the use and
occupancy of the Premises or from any activity, work, or thing done, permitted
or suffered by Tenant in or about the Premises or due to any other act or
omission of Tenant, its subtenants, assignees, invitees, employees, contractors
and agents. The furnishing of insurance required hereunder shall not be deemed
to limit Tenant's obligations under this Paragraph 18. See Addendum 1.
19. INSPECTION AND ACCESS. Landlord and its agents, representatives,
and contractors may enter the Premises at any reasonable time to inspect the
Premises and to make such repairs as may be required or permitted pursuant to
this Lease and for any other business purpose. Landlord and Landlord's
representatives may enter the Premises during business hours for the purpose
of showing the Premises to prospective purchasers and, during the last year
of the Lease Term, to prospective tenants. Landlord may erect a suitable
sign on the Premises stating the Premises are available to let or that the
Project is available for sale. Landlord may grant easements, make public
dedications, designate common areas and create restrictions on or about the
Premises, provided that no such easement, dedication, designation or
restriction materially interferes with Tenant's use or occupancy of the
Premises. At Landlord's request, Tenant shall execute such instruments as may
be necessary for such easements, dedications or restrictions.
20. QUIET ENJOYMENT. If Tenant shall perform all of the covenants and
agreements herein required to be performed by Tenant, Tenant shall, subject to
the terms of this Lease, at all times during the Lease Term, have peaceful and
quiet enjoyment of the Premises against any person claiming by, through or under
Landlord.
21. SURRENDER. Upon termination of the Lease Term or earlier termination
of Tenant's right of possession, Tenant shall surrender the Premises to Landlord
in the same condition as received, broom clean, ordinary wear and tear and
casualty loss and condemnation covered by Paragraphs 15 and 16 excepted. Any
Trade
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Fixtures, Tenant-Made Alterations and property not so removed by Tenant as
permitted or required herein shall be deemed abandoned and may be stored,
removed, and disposed of by Landlord at Tenant's expense, and Tenant waives all
claims against Landlord for any damages resulting from Landlord's retention and
disposition of such property. All obligations of Tenant hereunder not fully
performed as of the termination of the Lease Term shall survive the termination
of the Lease Term, including without limitation, indemnity obligations, payment
obligations with respect to Operating Expenses and obligations concerning the
condition and repair of the Premises.
22. HOLDING OVER. If Tenant retains possession of the Premises after
the termination of the Lease Term, unless otherwise agreed in writing, such
possession shall be subject to immediate termination by Landlord at any time,
and all of the other terms and provisions of this Lease (excluding any
expansion or renewal option or other similar right or option) shall be
applicable during such holdover period, except that Tenant shall pay Landlord
from time to time, upon demand, as Base Rent for the holdover period, an
amount equal to 150% of the Base Rent in effect on the termination date,
computed on a monthly basis for each month or part thereof during such
holding over, provided that if Tenant notifies Landlord at least 180 days
prior to the expiration of the initial Lease Term or Renewal Term (defined
below), as applicable, that it will be holding over, Base Rent for the first
3 months of the holdover period shall be in an amount equal to 115% of the
Base Rent in effect on the termination date. All other payments shall
continue under the terms of this Lease. In addition, Tenant shall be liable
for all damages incurred by Landlord as a result of such holding over. No
holding over by Tenant, whether with or without consent of Landlord, shall
operate to extend this Lease except as otherwise expressly provided, and this
Paragraph 22 shall not be construed as consent for Tenant to retain
possession of the Premises.
23. EVENTS OF DEFAULT. Each of the following events shall be an event of
default ("Event of Default") by Tenant under this Lease:
(i) Tenant shall fail to pay any installment of Base Rent or any
other payment required herein when due, and such failure shall continue for
a period of 5 days from the date such payment was due, provided that such
failure to make any payment for a period of 5 days from the date such
payment was due shall not constitute an Event of Default until 5 days after
Landlord has given Tenant written notice of the delinquent payment (which
may be given at any time during the delinquency), provided further that
such notice shall not be required more than twice in any 12-month period or
four times over the Lease Term.
(ii) Tenant or any guarantor or surety of Tenant's obligations
hereunder shall (A) make a general assignment for the benefit of creditors;
(B) commence any case, proceeding or other action seeking to have an order
for relief entered on its behalf as a debtor or to adjudicate it a bankrupt
or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts or seeking
appointment of a receiver, trustee, custodian or other similar official for
it or for all or of any substantial part of its property (collectively a
"proceeding for relief"); (C) become the subject of any proceeding for
relief which is not dismissed within 60 days of its filing or entry; or (D)
die or suffer a legal disability (if Tenant, guarantor, or surety is an
individual) or be dissolved or otherwise fail to maintain its legal
existence (if Tenant, guarantor or surety is a corporation, partnership or
other entity).
(iii) Any insurance required to be maintained by Tenant pursuant
to this Lease shall be canceled or terminated or shall expire or shall be
reduced or materially changed, except, in each case, as permitted in this
Lease, provided that Tenant shall have failed to renew or replace such
insurance within 24 hours after receipt of written notice from Landlord.
(iv) Tenant shall not occupy or shall vacate the Premises or
shall fail to continuously operate its business at the Premises for the
permitted use set forth herein, whether or not Tenant is in monetary or
other default under this Lease, provided that, Tenant's vacating of the
Premises shall not constitute an Event of Default if, prior to vacating the
Premises, Tenant has made arrangements reasonably acceptable to Landlord
to (a) insure that Tenant's insurance for the Premises will not be voided
or canceled with respect to the Premises as a result of such vacancy, (b)
insure that the Premises are secured and not subject to vandalism, and (c)
insure that the Premises will be properly maintained after such vacation.
Tenant shall inspect the Premises at last once each month and report
monthly in writing to Landlord on the condition of the Premises.
(v) Tenant shall attempt or there shall occur any assignment,
subleasing or other transfer of Tenant's interest in or with respect to
this Lease except as otherwise permitted in this Lease.
(vi) Tenant shall fail to discharge any lien placed upon the
Premises in violation of this Lease within 30 days after any such lien or
encumbrance is filed against the Premises.
(vii) Tenant shall fail to comply with any provision of this Lease
other than those specifically referred to in this Paragraph 23, and except
as otherwise expressly provided herein, such default shall continue for
more than 30 days after Landlord shall have given Tenant written notice of
such default (unless such performance will, due to the nature of the
obligation, require a period of time in excess of 30 days after Landlord
has given Tenant written notice of such default, then such default will
not be deemed to have occurred until after such period as is reasonably
necessary to cure such default provided Tenant is diligently pursuing the
cure of such default).
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24. LANDLORD'S REMEDIES. Upon each occurrence of an Event of Default and
so long as such Event of Default shall be continuing, Landlord may at any time
thereafter at its election: terminate this Lease or Tenant's right of
possession, (but Tenant shall remain liable as hereinafter provided) and/or
pursue any other remedies at law or in equity. Upon the termination of this
Lease or termination of Tenant's right of possession, it shall be lawful for
Landlord, without formal demand or notice of any kind, to re-enter the Premises
by summary dispossession proceedings or any other action or proceeding
authorized by law and to remove Tenant and all persons and property therefrom.
If Landlord re-enters the Premises, Landlord shall have the right to keep in
place and use, or remove and store, all of the furniture, fixtures and equipment
at the Premises.
If Landlord terminates this Lease, Landlord may recover from Tenant
the sum of: all Base Rent and all other amounts accrued hereunder to the date
of such termination; the cost of reletting the whole or any part of the
Premises, including without limitation brokerage fees and/or leasing
commissions incurred by Landlord, and costs of removing and storing Tenant's
or any other occupant's property, repairing, altering, remodeling, or
otherwise putting the Premises into condition acceptable to a new tenant or
tenants, and all reasonable expenses incurred by Landlord in pursuing its
remedies, including reasonable attorneys' fees and court costs; and the
excess of the then present value of the Base Rent and other amounts payable
by Tenant under this Lease as would otherwise have been required to be paid
by Tenant to Landlord during the period following the termination of this
Lease measured from the date of such termination to the expiration date
stated in this Lease, over the present value of any net amounts which Tenant
establishes Landlord can reasonably expect to recover by reletting the
Premises for such period, taking into consideration the availability of
acceptable tenants and other market conditions affecting leasing. Such
present values shall be calculated at a discount rate equal to the 90-day
U.S. Treasury xxxx rate at the date of such termination.
If Landlord terminates Tenant's right of possession (but not this
Lease), Landlord may, but shall be under no obligation to, relet the Premises
for the account of Tenant for such rent and upon such terms as shall be
satisfactory to Landlord without thereby releasing Tenant from any liability
hereunder and without demand or notice of any kind to Tenant. For the purpose
of such reletting Landlord is authorized to make any repairs, changes,
alterations, or additions in or to the Premises as Landlord deems reasonably
necessary or desirable. If the Premises are not relet, then Tenant shall pay to
Landlord as damages a sum equal to the amount of the rental reserved in this
Lease for such period or periods, plus the cost of recovering possession of the
Premises (including attorneys' fees and costs of suit), the unpaid Base Rent and
other amounts accrued hereunder at the time of repossession, and the costs
incurred in any attempt by Landlord to relet the Premises. If the Premises are
relet and a sufficient sum shall not be realized from such reletting [after
first deducting therefrom, for retention by Landlord, the unpaid Base Rent and
other amounts accrued hereunder at the time of reletting, the cost of recovering
possession (including attorneys' fees and costs of suit), all of the costs and
expense of repairs, changes, alterations, and additions, the expense of such
reletting (including without limitation brokerage fees and leasing commissions)
and the cost of collection of the rent accruing therefrom] to satisfy the rent
provided for in this Lease to be paid, then Tenant shall immediately satisfy
and pay any such deficiency. Any such payments due Landlord shall be made upon
demand therefor from time to time and Tenant agrees that Landlord may file suit
to recover any sums falling due from time to time. Notwithstanding any such
reletting without termination, Landlord may at any time thereafter elect in
writing to terminate this Lease for such previous breach.
Exercise by Landlord of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance of surrender of the
Premises and/or a termination of this Lease by Landlord, whether by agreement or
by operation of law, it being understood that such surrender and/or termination
can be effected only by the written agreement of Landlord and Tenant. Any law,
usage, or custom to the contrary notwithstanding, Landlord shall have the right
at all times to enforce the provisions of this Lease in strict accordance with
the terms hereof, and the failure of Landlord at any time to enforce its rights
under this Lease strictly in accordance with same shall not be construed as
having created a custom in any way or manner contrary to the specific terms,
provisions, and covenants of this Lease or as having modified the same. Tenant
and Landlord further agree that forbearance or waiver by Landlord to enforce its
rights pursuant to this Lease or at law or in equity, shall not be a waiver of
Landlord's right to enforce one or more of its rights in connection with any
subsequent default. A receipt by Landlord of rent or other payment with
knowledge of the breach of any covenant hereof shall not be deemed a waiver of
such breach, and no waiver by Landlord of any provision of this Lease shall be
deemed to have been made unless expressed in writing and signed by Landlord. To
the greatest extent permitted by law, Tenant waives the service of notice of
Landlord's intention to re-enter as provided for in any statute, or to institute
legal proceedings to that end, and also waives all right of redemption in case
Tenant shall be dispossessed by a judgment or by warrant of any court or judge.
The terms "enter," "re-enter," "entry" or "re-entry," as used in this Lease, are
not restricted to their technical legal meanings. Any reletting of the Premises
shall be on such terms and conditions as Landlord in its sole discretion may
determine (including without limitation a term different than the remaining
Lease Term, rental concessions, alterations and repair of the Premises, lease of
less than the entire Premises to any tenant and leasing any or all other
portions of the Project before reletting the Premises). Landlord shall not be
liable, not shall Tenant's obligations hereunder be diminished because of,
Landlord's failure to relet the Premises or collect rent due in respect of such
reletting.
25. TENANT'S REMEDIES/LIMITATION OF LIABILITY. Landlord shall not be in
default hereunder unless Landlord fails to perform any of its obligations
hereunder within 30 days after written notice from Tenant specifying such
failure (unless such performance will, due to the nature of the obligation,
require a period of time in excess of 30 days, then after such period of time as
is reasonably necessary). All obligations of Landlord hereunder shall be
construed as covenants, not conditions; and, except as may be otherwise
expressly provided in this Lease, Tenant
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may not terminate this Lease for breach of Landlord's obligations hereunder.
All obligations of Landlord under this Lease will be binding upon Landlord only
during the period of its ownership of the Premises and not thereafter. The term
"Landlord" in this Lease shall mean only the owner, for the time being of the
Premises, and in the event of the transfer by such owner of its interest in the
Premises, such owner shall thereupon be released and discharged from all
obligations of Landlord thereafter accruing, but such obligations shall be
binding during the Lease Term upon each new owner for the duration of such
owner's ownership. Any liability of Landlord under this Lease shall be limited
solely to its interest in the Project, and in no event shall any personal
liability be asserted against Landlord in connection with this Lease nor shall
any recourse be had to any other property or assets of Landlord.
26. WAIVER OF JURY TRIAL. TENANT AND LANDLORD WAIVE ANY RIGHT TO TRIAL BY
JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD AND TENANT ARISING OUT OF THIS
LEASE OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
27. SUBORDINATION. This Lease and Tenant's interest and rights
hereunder are and shall be subject and subordinate at all times to the lien
of any first mortgage, hereafter created on or against the Project or the
Premises, and all amendments, restatements, renewals, modifications,
consolidations, refinancing, assignments and extensions thereof, without the
necessity of any further instrument or act on the part of Tenant. Tenant
agrees, at the election of the holder of any such mortgage, to attorn to any
such holder, provided that, Tenant shall not be obligated to subordinate this
Lease or its interest herein to any future mortgage, deed of trust or ground
lease on the Project unless concurrently with such subordination the holder
of such mortgage or deed of trust or the ground lessor under such ground
lease agrees not to disturb Tenant's possession of the Premises under the
terms of this Lease in the event such holder or ground lessor acquires title
to the Premises through foreclosure, deed in lieu of foreclosure or
otherwise. Tenant agrees upon demand to execute, acknowledge and deliver
such instruments, confirming such subordination and such instruments of
attornment as shall be requested by any such holder. Tenant hereby appoints
Landlord attorney in fact for Tenant irrevocably (such power of attorney
being coupled with an interest) to execute, acknowledge and deliver any such
instrument and instruments for and in the name of the Tenant and to cause any
such instrument to be recorded. Notwithstanding the foregoing, any such
holder may at any time subordinate its mortgage to this Lease, without
Tenant's consent, by notice in writing to Tenant, and thereupon this Lease
shall be deemed prior to such mortgage without regard to their respective
dates of execution, delivery or recording and in that event such holder shall
have the same rights with respect to this Lease as though this Lease had been
executed prior to the execution, delivery and recording of such mortgage and
had been assigned to such holder. The term "mortgage" whenever used in this
Lease shall be deemed to include deeds of trust, security assignments and any
other encumbrances, and any reference to the "holder" of a mortgage shall be
deemed to include the beneficiary under a deed of trust.
28. MECHANIC'S LIENS. Tenant has no express or implied authority to
create or place any lien or encumbrance of any kind upon, or in any manner to
bind the interest of Landlord or Tenant in, the 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. 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
Premises and that it will save and hold Landlord harmless from all loss, cost or
expense based on or arising out of asserted claims or liens against the
leasehold estate or against the interest of Landlord in the Premises or under
this Lease. Tenant shall give Landlord immediate written notice of the placing
of any lien or encumbrance against the Premises and cause such lien or
encumbrance to be discharged within 30 days of the filing or recording thereof,
provided, however, Tenant may contest such liens or encumbrances as long as such
contest prevents foreclosure of the lien or encumbrance and Tenant causes such
lien or encumbrance to be bonded or insured over in a manner satisfactory to
Landlord within such 30 day period.
29. ESTOPPEL CERTIFICATES. Tenant agrees, from time to time, within 10
days after request of Landlord, to execute and deliver to Landlord, or
Landlord's designee, any estoppel certificate requested by Landlord, stating
that this Lease is in full force and effect, the date in which rent has been
paid, that Landlord is not in default hereunder (or specifying in detail the
nature of Landlord's default), the termination date of this Lease and such other
matters pertaining to this Lease as may be requested by Landlord. Tenant's
obligation to furnish each estoppel certificate in a timely fashion is a
material inducement for Landlord's execution of this Lease. No cure or grace
period provided in this Lease shall apply to Tenant's obligations to timely
deliver an estoppel certificate. Tenant hereby irrevocably appoints Landlord as
its attorney in fact to execute on its behalf and in its name any such estoppel
certificate if Tenant fails to execute and deliver the estoppel certificate
within 10 days after Landlord's written request thereof.
30. ENVIRONMENTAL REQUIREMENTS. Except for Hazardous Material contained
in products used by Tenant in de minimis quantities for ordinary cleaning and
office purposes, Tenant shall not permit or cause any party to bring any
Hazardous Material upon the Premises or transport, store, use, generate,
manufacture or release any Hazardous Material in or about the premises
without Landlord's prior written consent. Tenant, at its sole cost and
expense, shall operate its business in the Premises in strict compliance with
all Environmental Requirements and shall remediate in a manner satisfactory
to Landlord any Hazardous Materials released on or from the Project by
Tenant, its agents, employees, contractors, subtenants or invitees. Tenant
shall complete and certify to disclosure statements as requested by Landlord
from time to time relating to Tenant's transportation, storage, use,
generation, manufacture or release of Hazardous Materials on the Premises.
The term "Environmental Requirements" means
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all applicable present and future statutes, regulations, ordinances, rules,
codes, judgments, orders or other similar enactments of any governmental
authority or agency regulating or relating to health, safety, or environmental
conditions on under or about the Premises or the environment, including without
limitation, the following: the Comprehensive Environmental Response,
Compensation and Liability Act; the Resource Conservation and Recovery Act; and
all state and local counterparts thereto, and any regulations or policies
promulgated or issued thereunder. The term "Hazardous Materials" means and
includes any substance, material, waste, pollutant, or contaminant listed or
defined as hazardous or toxic, under any Environmental Requirements, asbestos
and petroleum, including crude oil or any fraction thereof, natural gas liquids,
liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural
gas and such synthetic gas). As defined in Environmental Requirements, Tenant
is and shall be deemed to be the "operator" of Tenant's "facility" and the
"owner" of all Hazardous Materials brought on the Premises by Tenant, its
agents, employees, contractors or invitees, and the wastes, by-products, or
residues generated, resulting, or produced therefrom. See Addendum F.
Tenant shall indemnify, defend, and hold Landlord harmless from and
against any and all losses (including, without limitation, diminution in
value of the Premises or the Project and loss of rental income from the
Project), claims, demands, actions, suits, damages (including, without
limitation, punitive damages), expenses (including, without limitation,
remediation, removal, repair, corrective action, or cleanup expenses, and
costs (including, without limitation, actual attorneys' fees, consultant fees
or expert fees and including, without limitation, removal or management of
any asbestos brought into the property or disturbed in breach of the
requirements of this Paragraph 30, regardless of whether such removal or
management is required by law) which are brought or recoverable against, or
suffered or incurred by Landlord as a result of any release of Hazardous
Materials for which Tenant is obligated to remediate as provided above or any
other breach of the requirements under this Paragraph 30 by Tenant, its
agents, employees, contractors, subtenants, assignees or invitees, regardless
of whether Tenant had knowledge of such noncompliance. The obligations of
Tenant under this Paragraph 30 shall survive any termination of this Lease.
Landlord shall have access to, and a right to perform inspections and
tests of, the Premises to determine Tenant's compliance with Environmental
Requirements, its obligations under this Paragraph 30, or the environmental
condition of the Premises. Access shall be granted to Landlord upon Landlord's
prior notice to Tenant and at such times so as to minimize, so far as may be
reasonable under the circumstances, any disturbance to Tenant's operations.
Such inspections and tests shall be conducted at Landlord's expense, unless such
inspections or tests reveal that Tenant has not complied with any Environmental
Requirement, in which case Tenant shall reimburse Landlord for the reasonable
cost of such inspection and tests. Landlord's receipt of or satisfaction with
any environmental assessment in no way waives any rights that Landlord holds
against Tenant.
31. RULES AND REGULATIONS. Tenant shall, at all times during the Lease
Term and any extension thereof, comply with all reasonable rules and regulations
at any time or from time to time established by Landlord covering use of the
Premises and the Project. The current rules and regulations are attached
hereto. In the event of any conflict between said rules and regulations and
other provisions of this Lease, the other terms and provisions of this Lease
shall control. Landlord shall not have any liability or obligation for the
breach of any rules or regulations by other tenants in the Project.
32. SECURITY SERVICE. Tenant acknowledges and agrees that, while Landlord
may patrol the Project, Landlord is not providing any security services with
respect to the Premises and that Landlord shall not be liable to Tenant for, and
Tenant waives any claim against Landlord with respect to, any loss by theft or
any other damage suffered or incurred by Tenant in connection with any
unauthorized entry into the Premises or any other breach of security with
respect to the Premises.
33. FORCE MAJEURE. Landlord shall not be held responsible for delays in
the performance of its obligations hereunder when caused by strikes, lockouts,
labor disputes, acts of God, inability to obtain labor or materials or
reasonable substitutes therefor, governmental restrictions, governmental
regulations, governmental controls, delay in issuance of permits, enemy or
hostile governmental action, civil commotion, fire or other casualty, and other
causes beyond the reasonable control of Landlord ("Force Majeure").
34. ENTIRE AGREEMENT. This Lease constitutes the complete agreement of
Landlord and Tenant with respect to the subject matter hereof. No
representations, inducements, promises or agreements, oral or written, have
been made by Landlord or Tenant, or anyone acting on behalf of Landlord or
Tenant, which are not contained herein, and any prior agreements, promises,
negotiations, or representations are superseded by this Lease. This Lease
may not be amended except by an instrument in writing signed by both parties
hereto.
35. SEVERABILITY. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws, then and in that
event, it is the intention of the parties hereto that the remainder of this
Lease shall not be affected thereby. 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 or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
36. BROKERS. Tenant represents and warrants that it has dealt with no
broker, agent or other person in connection with this transaction and that no
broker, agent or other person brought about this transaction, other than the
broker, if any, set forth on the first page of this Lease, and Tenant agrees to
indemnify and hold Landlord
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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.
37. MISCELLANEOUS. (a) Any payments or charges due from Tenant to Landlord
hereunder shall be considered rent for all purposes of this Lease.
(b) If and when included within the term "Tenant," as used in this
instrument, there is more than one person, firm or corporation, each shall be
jointly and severally liable for the obligations of Tenant.
(c) All notices required or permitted to be given under this Lease shall
be in writing and shall be sent by registered or certified mail, return receipt
requested, or by a reputable national overnight courier service, postage
prepaid, or by hand delivery addressed to the parties at their addresses below,
and with a copy sent to Landlord at 00000 XXXX 00XX XXXXX, XXXXXX, XXXXXXXX
00000. Either party may by notice given aforesaid change its address for all
subsequent notices. Except where otherwise expressly provided to the contrary,
notice shall be deemed given upon delivery.
(d) Whenever Landlord's consent or approval is called for under this
Lease, such consent or approval shall not be unreasonably withheld or delayed
unless this Lease expressly provides to the contrary.
(e) At Landlord's request from time to time Tenant shall furnish Landlord
with true and complete copies of its most recent annual and quarterly financial
statements prepared by Tenant or Tenant's accountants and any other financial
information or summaries that Tenant typically provides to its lenders or
shareholders.
(f) Neither this Lease nor a memorandum of lease shall be filed by or on
behalf of Tenant in any public record. Landlord may prepare and file, and upon
request by Landlord Tenant will execute, a memorandum of lease.
(g) The normal rule of construction to the effect that any ambiguities are
to be resolved against the drafting party shall not be employed in the
interpretation of this Lease or any exhibits or amendments hereto.
(h) The submission by Landlord to Tenant of this Lease shall have no
binding force or effect, shall not constitute an option for the leasing of the
Premises, nor confer any right or impose any obligations upon either party until
execution of this Lease by both parties.
(i) 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. 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.
(j) Any amount not paid by Tenant within 5 days after its due date in
accordance with the terms of this Lease shall bear interest from such due date
until paid in full at the lesser of the highest rate permitted by applicable law
or 15 percent per year. It is expressly the intent of Landlord and Tenant at
all times to comply with applicable law governing the maximum rate or amount of
any interest payable on or in connection with this Lease. If applicable law is
ever judicially interpreted so as to render usurious any interest called for
under this Lease, or contracted for, charged, taken, reserved, or received with
respect to this Lease, then it is Landlord's and Tenant's express intent that
all excess amounts theretofore collected by Landlord be credited on the
applicable obligation (or, if the obligation has been or would thereby be paid
in full, refunded to Tenant), and the provisions of this Lease immediately shall
be deemed reformed and the amounts thereafter collectible hereunder reduced,
without the necessity of the execution of any new document, so as to comply with
the applicable law, but so as to permit the recovery of the fullest amount
otherwise called for hereunder.
(k) Construction and interpretation of this Lease shall be governed by the
laws of the state in which the Project is located, excluding any principles of
conflicts of laws.
(l) Time is of the essence as to the performance of Tenant's obligations
under this Lease.
(m) All exhibits and addenda attached hereto are hereby incorporated into
this Lease and made a part hereof. In the event of any conflict between such
exhibits or addenda and the terms of this Lease, such exhibits or addenda shall
control.
38. INTENTIONALLY OMITTED.
39. LIMITATION OF LIABILITY OF TRUSTEES, SHAREHOLDERS, AND OFFICERS OF
SECURITY CAPITAL INDUSTRIAL TRUST. Any obligation or liability whatsoever of
Security Capital Industrial Trust, a Maryland real estate investment trust,
which may arise at any time under this Lease or any obligation or liability
which may be incurred by it pursuant to any other instrument, transaction, or
undertaking contemplated hereby shall not be personally binding upon, nor
shall resort for the enforcement thereof be had to the property of, its
trustees, directors, shareholders, officers, employees or agents, regardless
of whether such obligation or liability is in the nature of contract, tort,
or otherwise.
- 11 -
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the
day and year first above written.
TENANT: LANDLORD:
NOVELLUS SYSTEMS, INC., a SECURITY CAPITAL INDUSTRIAL TRUST, a
California corporation Maryland real estate investment trust
By:/s/ [illegible] By:/s/ [illegible]
-------------------------------- ----------------------------------
Title: Treasurer Title: Managing Director
----------------------------
Address: Address:
81 Vista Montana 00000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000 Xxxxxxx, Xxxxxxxxxx 00000
12
Rules and Regulations
---------------------
1. The sidewalk, entries, and driveways of the Project shall not be obstructed
by Tenant, or its agents, or used by them for any purpose other than
ingress and egress to and from the Premises.
2. Except as agreed to by Landlord, Tenant shall not place any objects,
including antennas, outdoor furniture, etc., in the parking areas,
landscaped areas, or other areas outside of its Premises, or on the roof of
the Project.
3. Except for seeing-eye dogs, no animals shall be allowed in the offices,
halls, or corridors in the Project.
4. Tenant shall not disturb the occupants of the Project or adjoining
buildings by the use of any radio or musical instrument or by the making of
loud or improper noises.
5. If Tenant desires telegraphic, telephonic or other electric connections in
the Premises, Landlord or its agent will direct the electrician as to where
and how the wires may be introduced; and, without such direction, no boring
or cutting of wires will be permitted. Any such installation or connection
shall be made at Tenant's expense.
6. Tenant shall not install or operate any steam or gas engine or boiler, or
other mechanical apparatus in the Premises, except as specifically approved
in the Lease. The use of oil, gas or inflammable liquids for heating,
lighting or any other purpose is expressly prohibited, except as
specifically provided for in Addendum F attached hereto. Explosives or
other articles deemed extra hazardous shall not be brought into the
Project.
7. Parking any type of recreational vehicles is specifically prohibited on or
about the Project. Except for the overnight parking of operative vehicles,
no vehicle of any type shall be stored in the parking areas at any time. In
the event that a vehicle is disabled, it shall be removed within 48 hours.
There shall be no "For Sale" or other advertising signs on or about any
parked vehicle. All vehicles shall be parked in the designated parking
areas in conformity with all signs and other markings. All parking will be
open parking, and no reserved parking, numbering or lettering of individual
spaces will be permitted except as specified by Landlord.
8. Tenant shall maintain the Premises free from rodents, insects and other
pests.
9. Landlord reserves the right to exclude or expel from the Project any person
who, in the judgment of Landlord, is intoxicated or under the influence of
liquor or drugs or who shall in any manner do any act in violation of the
Rules and Regulations of the Project.
10. Tenant shall not cause any unnecessary labor by reason of Tenant's
carelessness or indifference in the preservation of good order and
cleanliness. Landlord shall not be responsible to Tenant for any loss of
property on the Premises, however occurring, or for any damage done to the
effects of Tenant by the janitors or any other employee or person.
11. Tenant shall give Landlord prompt notice of any defects in the water, lawn
sprinkler, sewage, gas pipes, electrical lights and fixtures, heating
apparatus, or any other service equipment affecting the Premises.
12. Except as agreed to by Landlord, Tenant shall not permit storage outside
the Premises, including without limitation, outside storage of trucks and
other vehicles, or dumping of waste or refuse or permit any harmful
materials to be placed in any drainage system or sanitary system in or
about the Premises.
13. All moveable trash receptacles provided by the trash disposal firm for the
Premises must be kept in the trash enclosure areas, if any, provided for
that purpose.
14. No auction, public or private, will be permitted on the Premises or the
Project.
15. No awnings shall be placed over the windows in the Premises except with the
prior written consent of Landlord.
16. The Premises shall not be used for lodging, sleeping or cooking or for any
immoral or illegal purposes or for any purpose other than that specified in
the Lease. No gaming devices shall be operated in the Premises.
17. Tenant shall ascertain from Landlord the maximum amount of electrical
current which can safely be used in the Premises, taking into account the
capacity of the electrical wiring in the Project and the Premises and the
needs of other tenants, and shall not use more than such safe capacity.
Landlord's consent to the installation of electric equipment shall not
relieve Tenant from the obligation not to use more electricity than such
safe capacity.
18. Tenant assumes full responsibility for protecting the Premises from theft,
robbery and pilferage.
19. Tenant shall not install or operate on the Premises any machinery or
mechanical devices of a nature not directly related to Tenant's ordinary
use of the Premises and shall keep all such machinery free of vibration,
noise and air waves which may be transmitted beyond the Premises.
- 13 -
ADDENDUM B
CONSTRUCTION
(TURNKEY)
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED May 3, 1996, BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST
and
NOVELLUS SYSTEMS, INC.
(a) Landlord agrees to furnish or perform at Landlord's sole cost and
expense those items of construction and those improvements (the "LANDLORD'S
IMPROVEMENTS") specified below:
* Full height sheet rock demising wall at the north and south ends
of the Premises
* Separate metering of natural gas and electrical and an 800 amp.
277/480 volt 3 phase electrical panel
(b) If Tenant shall desire any changes, Tenant shall so advise Landlord in
writing and Landlord shall determine whether such changes can be made in a
reasonable and feasible manner. Any and all costs of reviewing any requested
changes, and any and all costs of making any changes to the Landlord's
Improvements which Tenant may request and which Landlord may agree to shall be
at Tenant's sole cost and expense and shall be paid to Landlord upon demand and
before execution of the change order.
(c) Landlord shall proceed with and complete the construction of the
Landlord's Improvements. As soon as such improvements have been Substantially
Completed, Landlord shall notify Tenant in writing of the date that the
Landlord's Improvements were Substantially Completed. The Landlord's
Improvements shall be deemed substantially completed ("SUBSTANTIALLY COMPLETED")
when, in the opinion of the construction manager (whether an employee or agent
of Landlord or a third party construction manager), the Premises are
substantially completed except for punch list items which do not prevent in any
material way the use of the Premises for the purposes for which they were
intended.
(d) The failure of Tenant to take possession of or to occupy the Premises
shall not serve to relieve Tenant of obligations arising on the Commencement
Date or delay the payment of rent by Tenant. Subject to applicable ordinances
and building codes governing Tenant's right to occupy or perform in the
Premises, Tenant shall be allowed to install its tenant improvements, machinery,
equipment, fixtures, or other property, on the Premises during the final stages
of completion of construction provided that Tenant does not thereby interfere
with the completion of construction or cause any labor dispute as a result of
such installations, and provided further that Tenant does hereby agree to
indemnify, defend, and hold Landlord harmless from any loss or damage to such
property, and all liability, loss, or damage arising from any injury to the
Project or the property of Landlord, its contractors, subcontractors, or
materialmen, and any death or personal injury to any person or persons arising
out of such installations. Any such occupancy or performance in the Premises
shall be in accordance with the provisions governing Tenant-Made Alterations and
Trade Fixtures in the Lease, and shall be subject to Tenant providing to
Landlord satisfactory evidence of insurance for personal injury and property
damage related to such installations and satisfactory payment arrangements with
respect to installations permitted hereunder. Delay in putting Tenant in
possession of the Premises shall not serve to extend the term of this Lease or
to make Landlord liable for any damages arising therefrom.
(e) Except for incomplete punch list items, Tenant upon the Commencement
Date shall have and hold the Premises as the same shall then be without any
liability or obligation on the part of Landlord for making any further
alterations or improvements of any kind in or about the Premises.
ADDENDUM C
CONSTRUCTION
(ALLOWANCE)
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED May 3, 1996, BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST
and
NOVELLUS SYSTEMS, INC.
a. INITIAL TENANT IMPROVEMENTS; ALLOWANCE. The leasehold improvements to be
constructed by Tenant (the "INITIAL TENANT IMPROVEMENTS"), at Tenant's sole
cost and expense (except for the hereinbelow described "ALLOWANCE"), are
generally described in the preliminary plans and specifications (the
"PRELIMINARY PLANS") identified on Attachment 1 to this Addendum and shall
be constructed in accordance with the Final Plans to be submitted by Tenant
and reviewed and approved by Landlord in accordance with the provisions of
Paragraph (b) of this Addendum.
Landlord shall have no obligation to construct or to pay for the
construction of the Initial Tenant Improvements. However, in addition to
Landlord's obligation to perform the Landlord's Improvements in accordance
with Addendum B above, Landlord agrees to contribute toward the cost of
construction of the Initial Tenant Improvements the cash sum of up to
$120,000.00 (the "ALLOWANCE"). The construction costs that may be
reimbursed from the Allowance shall include only the following: costs of
labor, equipment, supplies and materials furnished for construction of the
Initial Tenant Improvements; government fees and charges for required
permits, plan checks, and inspections for the Initial Tenant Improvements;
charges of Tenant's design professionals; and charges of Landlord's design
professionals for review of plans and monitoring of construction or
installation of the Initial Tenant Improvements. No other costs, fees or
expenses of the Initial Tenant Improvements shall be reimbursable out of
the Allowance.
Landlord's payment of the Allowance, or such portion thereof as Tenant may
be entitled to, shall be made within thirty (30) days after each and all of
the following conditions shall have been satisfied: (1) the Initial Tenant
Improvements shall have been substantially completed in accordance with the
Final Plans; (2) Tenant shall have delivered to Landlord satisfactory
evidence that all mechanics lien rights of all contractors, suppliers,
subcontractors, or materialmen furnishing labor, supplies or materials in
the construction or installation of the Initial Tenant Improvements have
been unconditionally waived, released, or extinguished; (3) Tenant shall
have delivered to Landlord paid receipts or other written evidence
satisfactorily substantiating the actual amount of the construction costs
of the Initial Tenant Improvements; (4) Tenant shall have delivered to
Landlord a temporary or final certificate of occupancy for the Premises; (5)
Tenant shall not then be in default of any of the provisions of the Lease;
(6) Tenant shall have occupied and opened for business at the Premises; and
(7) Tenant has submitted to Landlord the following: (i) original "jobsite
copy" of the permit drawings; (ii) permit cards signed off by the building
inspector; (iii) a recorded copy of the Notice of Completion issued by the
building inspector of the City of Wilsonville; (iv) "as-built" drawings of
the electrical, HVAC, plumbing and fire protection system; (v) one copy of
all warranties and maintenance and operating manuals; (vi) a letter from
Tenant's architect certifying that the Initial Tenant Improvements were
completed in accordance with the Final Plans (defined below); and (vii) a
copy of the Tenant's Contractor's (defined below) Application for Payment
(ALA Document G702), certified by Tenant's architect. If Landlord claims
any credits against the Allowance for any costs paid directly by Landlord
to third parties, Landlord shall provide Tenant with evidence of payment of
such costs.
b. PREPARATION AND REVIEW OF PLANS FOR INITIAL TENANT IMPROVEMENTS. The
Preliminary Plans identified on Attachment I to this Addendum C have been
approved by Landlord and signed by Landlord and Tenant for identification.
However, such Preliminary Plans shall not be used by Tenant for the
purposes of constructing or installing the Initial Tenant Improvements.
Tenant, using licensed architectural and engineering firms selected by
Tenant and approved by Landlord (which approval shall not be unreasonably
withheld or delayed), shall prepare or cause to be prepared and submitted,
concurrently, and in each case by receipted courier or delivery service, to
(i) Landlord's construction representative, (i) Xxxx Xxxxxx, 00000 Xxxxxxx
Xxxx., Xxxxxxx, Xxxxxxxxxx 00000, and (ii) Landlord's offices at 00000 Xxxx
00xx Xxxxx, Xxxxxx, Xxxxxxxx 00000, attn: Xx. Xxxxxx Xxxxxx, for Landlord's
review, complete and final architectural and engineering drawings and
specifications (hereinafter collectively referred to as the "FINAL PLANS"),
consistent with the description of the Initial Tenant Improvements set
forth on the Preliminary Plans. Subject to the provisions of Paragraph (c)
of this Addendum C, Landlord agrees that Tenant may commence construction
of the Initial Tenant Improvements prior to finalization of the Final Plans
and Landlord agrees that it shall cooperate with Tenant to review and
approve portions of the Final Plans for different stages or elements of the
work, or proposed Final Plans submitted at less than 100% completion, so
that construction can proceed on a "fast track" basis. The approval
process for all such portions of the Final Plans shall be substantially as
set forth below, but any objection by Landlord to Final Plans submitted to
Landlord may not be inconsistent with previously approved portions of the
Final Plans. However, in no event shall any portion of the Initial Tenant
Improvements be constructed or installed unless and until Landlord has
approved (or is deemed to have approved) Final Plans at 100% completion for
such portion of the work.
Each set of proposed Final Plans furnished by Tenant shall include at least
two (2) sets of prints. The Final Plans shall be compatible with the
design, construction, and equipment of the Building, and shall be capable
of logical measurement and construction. Unless Landlord shall otherwise
agree in writing, the Final Plans shall be signed/stamped by Tenant's
architect or engineer, as applicable, and shall include (to the extent
relevant or applicable to the portion of the work for which Tenant is
seeking Final Plan approval) each and all of the following: (i) a Partition
(Floor) Plan, @ 1/8" = 1'-0" minimum scale, including partition types,
partition construction sections and details, and door/frame/hardware
schedules; (ii) a Reflected Ceiling Plan, @ 1/8" = 1'-0" minimum scale,
including ceiling construction and specifications for ceiling lighting
fixtures; (iii) a Telephone/Electrical/Communications Plan, @ 1/8" = 1'-0"
minimum scale, including a complete schedule, cross-referenced to said
plan, of Tenant's telephone/electrical/communications equipment and
providing said equipment's electrical power specifications,
requirements and heat output; (iv) a Finish Plan, including all finish
specifications and U.L. and/or County "approval numbers" where required;
(v) Elevations, @ 1/2" - 1'-0" minimum scale; interior, of all walls, with
detail/section cross-references where appropriate; exterior, of Tenant's
portion of the perimeter Building-front wall, clearly indicating the
appearance of Tenant's space, including its signage, at/through Tenant's
perimeter Building window wall (if any); (vi) details and sections, scale
as required, for all partition types, structural elements and connections,
and custom installations where they occur (HVAC, lighting, etc.); (vii)
details and sections, scale as required, for all signage and graphics;
(viii) a Structural Engineering Plan, locating and detailing any
modifications to the Building required to attach and/or support the Initial
Tenant Improvements or Tenant's trade fixtures or equipment (this plan must
be signed/stamped by a structural engineer licensed in the State in which
the Premises are situated); (ix) Electrical Engineering Plans, for both
electrical power and for lighting, including but not limited to: circulating
diagrams; panel schedules; electrical equipment and lighting fixture
schedules and specifications; and electrical equipment and lighting fixture
electrical load tabulations (these plans and calculations must be
signed/stamped by an electrical engineer licensed in the State in which the
Premises are situated); (x) Mechanical Engineering Plans, for both plumbing
and for HVAC, including but not limited to: plumbing water and waste line
plans; HVAC supply, return and exhaust plans; and HVAC tabulations for
electrical equipment and lighting heat loads, cooling loads and air supply
(these plans and calculations must be signed/stamped by a mechanical
engineer licensed in the State in which the Premises are situated); (xi) a
Fire Protection Plan, locating and detailing any fire protection/fire
suppression system as may be required by code or other regulations
governing Tenant's operations in the Premises (this plan must be
signed/stamped by a fire protection engineer licensed in the State in which
the Premises are situated); and (xii) any other or additional plans as may
be related to Tenant's specific use of the Premises, such as plans for
rooms, enclosures, equipment or devices related to Tenant's permitted
storage or use of Hazardous Materials at the Premises (if any), or as may
be required by local city ordinance or building code.
Tenant shall submit all Final Plans (or portions thereof) concurrently to
Landlord's construction representative and offices, as designated above,
for Landlord review and approval. Landlord shall have five (5) business
days after Landlord's receipt of the proposed Final Plans (or each such
portion thereof) to review the same and notify Tenant in writing of any
comments or required changes, or to otherwise give its approval or
disapproval of such proposed Final Plans (or the portion thereof submitted
to Landlord). If Landlord fails to give written comments to or disapprove
the Final Plans (or the portion thereof submitted to Landlord) within such
five (5) business day period, then Landlord shall be deemed to have
approved the Final Plans (or portion thereof) as submitted. Tenant shall
have five (5) business days following its receipt of Landlord's comments
and objections to redraw the proposed Final Plans (or portion thereof
submitted to Landlord) in compliance with Landlord's request and to
resubmit the same for Landlord's final review and approval or comment
within three (3) business days of Landlord's receipt of such revised plans.
Such process shall be repeated as necessary until final approval or deemed
approval by Landlord of the proposed Final Plans (or each portion thereof),
at 100% completion, has been obtained. Landlord may at any time by written
notice given in accordance with the notice provisions of the Lease change
the name and/or address of the designated Landlord's construction
representative to receive plans delivered by Tenant to Landlord.
In the event that Tenant disagrees with any of the changes to the proposed
Final Plans (or portion thereof) required by Landlord, then Landlord and
Tenant shall consult with respect thereto and each party shall use all
reasonable efforts to promptly resolve any disputed elements of such
proposed Final Plans (or portion thereof). Landlord and Tenant agree that
if after consultation with each other and their respective architects they
are unable to resolve any disputed items with three (3) business days of
Landlord's written objection, then within three (3) business days thereafter
(i) Landlord's architect shall select an architect who is unaffiliated with
Landlord or Tenant to resolve the dispute (the "Arbitrator'), and (ii) each
party shall state to the Arbitrator its final position in writing as
respects the disputed matter(s). The Arbitrator shall decide on each
disputed matter within three (3) business days of submission of such
matter, based solely on such written submissions and the consistency of the
parties' submissions with the Preliminary Plans or previously approved
portions of the Final Plans, as applicable, the Tenant's permitted use of
the Premises; and the general nature and design of the Project and adjacent
properties. The parties consent to the jurisdiction of any appropriate
court to enforce and enter judgments upon the decision of the Arbitrator.
The losing party shall pay the cost of the Arbitrator, but each party shall
otherwise bear its own costs and expenses in connection with the dispute.
For purposes hereof, "business days" shall be all calendar days except
Sundays and holidays observed by national banks in Clackamas County,
Oregon, but Saturdays shall not constitute or be a business day for
purposes of delivery of documents by one party to the other.
Notwithstanding the preceding provisions of this Paragraph (b), under no
circumstances whatsoever shall (i) any combustible materials be utilized
above finished ceiling or in any concealed space, (ii) any structural load,
temporary or permanent, be exerted on any part of the Building without the
prior written approval of Landlord, or (iii) any holes be cut or drilled in
any part of the roof or other portion of the Building shall without the
prior written approval of Landlord.
In the event that Tenant proposes any changes to the Final Plans (or any
portion thereof) after the same have been approved by Landlord, Landlord
shall not unreasonably withhold its consent to any such changes, provided
the changes do not, in Landlord's reasonable opinion, adversely affect the
Building structure, systems, or equipment, or the external appearance of
the Premises.
As soon as the Final Plans (or a portion thereof sufficient to permit
commencement of construction or installation of the Initial Tenant
Improvements, if Tenant elects to proceed with a "fast track" construction)
are mutually agreed upon, Tenant shall use diligent efforts to obtain all
required permits, authorizations, and licenses from appropriate
governmental authorities for construction of the Initial Tenant
Improvements (or such portion thereof, as applicable). Tenant shall be
solely responsible for obtaining any business or other license or permit
required for the conduct of its business at the Premises.
c. CONSTRUCTION OF THE INITIAL TENANT IMPROVEMENTS. Construction or
installation of the Initial Tenant Improvements shall be performed by a
licensed general contractor or contractors selected by Tenant and approved
by Landlord, such approval not to be unreasonably withheld or delayed (the
"TENANT'S CONTRACTOR," whether one or more), pursuant to a written
construction contract negotiated and entered into by and between the
Tenant's Contractor and Tenant and approved by Landlord (such approval not
to be unreasonably withheld or delayed). Each such contract shall (i)
obligate Tenant's Contractor to work in harmony with the employees,
contractors and suppliers of Landlord involved
in the construction work being performed by Landlord pursuant to Addendum B
to the Lease, and to comply with all rules and regulations of Landlord of
general applicability relating to construction activities in the Project,
(ii) name Landlord as an additional indemnitee under the provisions of the
contract whereby the Tenant's Contractor holds Tenant harmless from and
against any and all claims, damages, losses, liabilities and expenses
arising out of or resulting from the performance of such work, (iii) name
Landlord as a beneficiary of (and a party entitled to enforce) all of the
warranties of the Tenant's Contractor with respect to the work performed
thereunder and the obligation of the Tenant's Contractor to replace
defective materials and correct defective workmanship for a period of not
less than one (1) year following substantial completion of the work under
such contract, (iv) evidence the agreement of the Tenant's Contractor that
the provisions of the Lease shall control over the provisions of the
contract with respect to distribution or use of insurance proceed, in the
event of a casualty during construction, and (v) evidence the waiver and
release by the Tenant's Contractor of any lien or right to assert a lien on
all or any portion of the fee estate of Landlord in and to the Project as a
result of the work performed or to be performed thereunder (and obligating
the Tenant's Contractor to include a substantially similar release and
waiver provision in all subcontracts and purchase orders entered under or
pursuant to the contract).
Tenant acknowledges and understands that all roof penetrations involved in
the construction of the Initial Tenant Improvements must be performed by
the Building shell roofing contractor. All costs, fees and expenses
incurred with such contractor in performing such work shall be a cost of
the Initial Tenant Improvements, payable in accordance with the provisions
of this Addendum. Tenant or Tenant's Contractor shall be responsible for
all water, gas, electricity, sewer or other utilities used or consumed at
the Premises during the construction of the Initial Tenant Improvements.
Tenant specifically agrees to carry, or cause the Tenant's Contractor to
carry, during all such times as the Tenant's work is being performed, (a)
builder's risk completed value insurance on the Initial Tenant
Improvements, in an amount not less than Four Million Dollars
($4,000,000.00), (b) a policy of insurance covering commercial general
liability, in an amount not less than One Million Dollars ($1,000,000.00),
combined single limit for bodily injury and property damage per occurrence
(and combined single limit coverage of $2,000,000.00 in the aggregate), and
automobile liability coverage (including owned, non-owned and hired
vehicles) in an amount not less than One Million Dollars ($1,000,000.00)
combined single limit (each person, each accident), and endorsed to show
Landlord as an additional insured, and (c) workers' compensation insurance
as required by law, endorsed to show a waiver of subrogation by the insurer
to any claim the Tenant's Contractor may have against Landlord. Tenant shall
not commence construction of the Initial Tenant Improvements (or any
portion thereof) until Landlord has issued to Tenant a written
authorization to proceed with construction, which Landlord agrees to issue
to Tenant within one (1) business day after Tenant has delivered to
Landlord's construction representative (i) certificates of the insurance
policies described above, (ii) copies of all permits required for
construction of the Initial Tenant Improvements (or applicable portion
thereof, if Tenant elects to proceed with a "fast track" construction) and
a copy of the permitted Final Plans (or applicable portion thereof) as
approved by the appropriate governmental agency, (iii) a copy of each
signed construction contract for the Initial Tenant Improvements (a copy of
each subsequently signed contract shall be forwarded to Landlord's
construction representative without request or demand, promptly after
execution thereof and prior to the performance of any work thereunder), and
(iv) list of names, addresses and phone numbers of all subcontractors,
contractors and suppliers involved in performing the Initial Tenant
Improvements. All of the construction work shall be the responsibility of
and supervised by Tenant.
d. REQUIREMENTS FOR TENANT'S WORK. All of Tenant's construction with
respect to the Premises shall be performed in substantial compliance with
this Addendum and the Final Plans therefor previously approved in writing
by Landlord (and any changes thereto approved by Landlord as herein
provided), and in a good and workmanlike manner, utilizing only new
materials. All such work shall be performed by Tenant in strict compliance
with all applicable building codes, regulations and all other legal
requirements. All materials utilized in the construction of Tenant's work
must be confined to within the Premises. All trash and construction debris
not located wholly within the Premises must be removed each day from the
Project at the sole cost and expense of Tenant. Landlord shall have the
right at all times to monitor the work for compliance with the requirements
of this Addendum. If Landlord determines that any such requirements are
not being strictly complied with, Landlord may immediately require the
cessation of all work being performed in or around the Premises or the
Project until such time as Landlord is satisfied that the applicable
requirements will be observed. Any approval given by Landlord with respect
to Tenant's construction or the Preliminary Plans or Final Plans therefor,
and/or any monitoring of Tenant's work by Landlord, shall not make Landlord
liable or responsible in any way for the condition, quality or function of
such matters or constitute any undertaking, warranty or representation by
Landlord with respect to any of such matters. So long as Landlord reviews
and responds to the plan submission to Landlord as provided in this
Addendum, no delays in plan approval, and no delays in construction of the
Initial Tenant Improvements, shall delay the Commencement Date of the
Lease.
e. NO LIENS; INDEMNIFICATION. Tenant shall have no authority to place any
lien upon the Premises or the Project, or any portion thereof or interest
therein, nor shall Tenant have any authority in any way to bind Landlord,
and any attempt to do so shall be void and of no effect. If, because of
any actual or alleged act or omission of Tenant, or Tenant's Contractor, or
any subcontractors or materialmen, any lien, affidavit, charge or order for
the payment of money shall be filed against Landlord, the Premises, the
Project, or any portion thereof or interest therein, whether or not such
lien, affidavit, charge or order is valid or enforceable, Tenant shall, at
its sole cost and expense, cause the same to be discharged of record by
payment, bonding or otherwise no later than fifteen (15) days after notice
to Tenant of the filing thereof, but in any event prior to the foreclosure
thereof.
With respect to the contract for labor or materials for construction of the
Initial Tenant Improvements, Tenant acts as principal and not as the agent
of Landlord. Landlord expressly disclaims liability for the cost of labor
performed for or supplies or materials furnished to Tenant. Landlord may
post one or more "notices of non-responsibility" for Tenant's work on the
Project. No contractor of Tenant is intended to be a third-party
beneficiary with respect to the Allowance, or the agreement of Landlord to
make such Allowance available for payment of or reimbursement for the
costs of construction of the Initial Tenant Improvements. Tenant agrees to
indemnify, defend and hold Landlord, the Premises and the Project, harmless
from all claims (including all costs and expenses of defending against such
claims) arising or alleged to arise from any act or omission of Tenant or
Tenant's agents, employees, contractor, subcontractors, suppliers,
materialmen, architects, designers, surveyors, engineers, consultants,
laborers, or invitees, or arising from any bodily injury or property damage
occurring or alleged to have occurred incident to any of the work to be
performed by Tenant or its contractors or subcontractors with respect to
the Premises.
Default by Tenant under this Addendum C shall constitute a default by
Tenant under the Lease for all purposes.
Attachment 1
to
ADDENDUM C
IDENTIFICATION OF PRELIMINARY PLANS:
The "PRELIMINARY PLANS" for the Initial Tenant Improvements heretofore
approved by Landlord are identified as the plans prepared by Architectural/
Technologies; bearing Project No. 96208, dated April 11, 1996, and consisting of
5 sheets signed by Landlord and Tenant.
ADDENDUM D
BASE RENT ADJUSTMENTS
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED MAY 3, 1996, BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST
and
NOVELLUS SYSTEMS, INC.
Base Rent shall equal the following amounts for the respective periods set
forth below:
Period Monthly Base Rent
------ -----------------
month 0 to month 1 $0.00 (Tenant to pay its Proportionate
Share of Operating Expenses,
however, for this time period)
month 2 to month 37 $7,260.00
month 38 to month 61 $8,085.00
ADDENDUM E
RENEWAL OPTION
(BASEBALL ARBITRATION)
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED MAY 3, 1996, BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST
and
NOVELLUS SYSTEMS, INC.
(a) Provided that as of the time of the giving of the Extension Notice
and the Commencement Date of the Extension Term (as such terms are defined
below), (x) Tenant is any of the Tenant originally named herein, a Tenant
Affiliate, or an assignee of Tenant consented to by Landlord who will
maintain the same use as the Tenant at the Premises and has assumed all of
Tenant's obligations under the Lease, (y) Tenant actually occupies all of the
Premises initially demised under this Lease and any space added to the
Premises, and (z) no Event of Default exists, or would exist but for the
passage of time or the giving of notice, or both; then Tenant shall have the
right to extend the Lease Term for an additional term of 5 years (such
additional term is hereinafter called the "EXTENSION TERM") commencing on the
day following the expiration of the Lease Term (hereinafter referred to as
the "COMMENCEMENT DATE OF THE EXTENSION TERM"). Tenant must give Landlord
notice (hereinafter called the "EXTENSION NOTICE") of its election to extend
the term of the Lease Term at least 6 months, but not more than 9 months,
prior to the scheduled expiration date of the Lease Term.
(b) The Base Rent payable by Tenant to Landlord during the Extension Term
shall be the greater of:
(i) the Base Rent in effect on the expiration of the Lease Term (if
the Base Rent is stated as an annual or other periodic rate, adjusted for
the length of the Lease Term), and
(ii) the Fair Market Rent, as defined and determined pursuant to
Paragraphs (c), (d), and (e) below.
(c) The term "FAIR MARKET RENT" of the Premises shall mean the Base Rent,
expressed as an annual rent per square foot of floor area, which Landlord would
have received from leasing the Premises (which shall be valued for purposes of
this determination as warehouse shell space with power, light and heat and 3,000
square feet of office space) for the Extension Term to an unaffiliated person
which is not then a tenant in the Project, assuming that such space were to be
delivered in "as-is" condition, and taking into account the rental which such
other tenant would most likely have paid for such premises, including market
escalations, provided that Fair Market Rent shall not in any event be less than
the Base Rent for the Premise as of the expiration of the Lease Term. Fair
Market Rent shall not be reduced by reason of any costs or expenses saved by
Landlord by reason of Landlord's not having to find a new tenant for the
Premises (including without limitation brokerage commissions, cost of
improvements necessary to prepare the space for such tenant's occupancy, rent
concession, or lost rental income during any vacancy period). Fair Market Rent
means only the rent component defined as Base Rent in the Lease and does not
include reimbursements and payments by Tenant to Landlord with respect to
operating expenses and other items payable or reimbursable by Tenant under the
Lease. In addition to its obligation to pay Base Rent (as determined herein),
Tenant shall continue to pay and reimburse Landlord as set forth in the Lease
with respect to such operating expenses and other items with respect to the
Premises during the Extension Term. The arbitration process described below
shall be limited to the determination of the Base Rent and shall not affect or
otherwise reduce or modify the Tenant's obligation to pay or reimburse Landlord
for such operating expenses and other reimbursable items.
(d) Landlord shall notify Tenant of its determination of the Fair Market
Rent (which shall be made in Landlord's sole discretion and shall in any event
be not less than the Base Rent in effect as of the expiration of the Lease Term)
for the Extension Term, and Tenant shall advise Landlord of any objection within
10 days of receipt of Landlord's notice. Failure to respond within the 10-day
period shall constitute Tenant's acceptance of such Fair Market Rent. If Tenant
objects, Landlord and Tenant shall commence negotiations to attempt to agree
upon the Fair Market Rent within 30 days of Landlord's receipt of Tenant's
notice. If the parties cannot agree, each acting in good faith but without any
obligation to agree, then the Lease Term shall not be extended and shall
terminate on its scheduled termination date and Tenant shall have no further
right hereunder or any remedy by reason of the parties' failure to agree unless
Tenant or Landlord invokes the arbitration procedure provided below to determine
the Fair Market Rent.
(e) Arbitration to determine the Fair Market Rent shall be in accordance
with the Real Estate Valuation Arbitration Rules of the American Arbitration
Association. Unless otherwise required by state law, arbitration shall be
conducted in the metropolitan area where the Project is located by a single
arbitrator unaffiliated with either party. Either party may elect to arbitrate
by sending written notice to the other party and the Regional Office of the
American Arbitration Association within 5 days after the 30-day negotiating
period provided in paragraph (d), invoking the binding arbitration provisions of
this paragraph. Landlord and Tenant shall each submit to the arbitrator their
respective proposal of Fair Market Rent. The arbitrator must choose between the
Landlord's proposal and the Tenant's proposal and may not compromise between the
two or select some other amount. Notwithstanding any other provision herein,
the Fair Market Rent determined by the arbitrator shall not be less than, and
the arbitrator shall have no authority to determine a Fair Market Rent less
than, the Base Rent in effect as of the scheduled expiration of the Lease Term.
The cost of the arbitration shall be paid by Landlord if the Fair Market Rent is
that proposed by Landlord and by Tenant if the Fair Market Rent is that proposed
by Tenant; and shall be borne equally otherwise. If the arbitrator has not
determined the Fair Market Rent as of the end of the Lease Term, Tenant shall
pay 105 percent of the Base Rent in effect under the Lease as of the end of the
Lease Term until the Fair Market Rent is determined as provided herein. Upon
such determination, Landlord and Tenant shall make the appropriate adjustments
to the payments between them.
(f) The parties consent to the jurisdiction of any appropriate court to
enforce the arbitration provisions of this Addendum and to enter judgment upon
the decision of the arbitrator.
(g) Except for the Base Rent as determined above, Tenant's occupancy of
the Premises during the Extension Term shall be on the same terms and conditions
as are in effect immediately prior to the expiration of the initial Lease Term;
provided, however, Tenant shall have no further right to extend the Lease Term
pursuant to this addendum or to any allowances, credits or abatements or options
to expand, contract, renew or extend the Lease.
(h) If Tenant does not send the Extension Notice within the period set
forth in Paragraph (a), Tenant's right to extend the Lease Term shall
automatically terminate. Time is of the essence as to the giving of the
Extension Notice and the notice of Tenant's objection under Paragraph (d).
(i) Landlord shall have no obligation to refurbish or otherwise improve
the Premises for the Extension Term. The Premises shall be tendered on the
Commencement Date of the Extension Term in "as-is" condition.
(j) If the Lease is extended for the Extension Term, then Landlord shall
prepare and Tenant shall execute an amendment to the Lease confirming the
extension of the Lease Term and the other provisions applicable thereto.
(k) If Tenant exercises its right to extend the term of the Lease for the
Extension Term pursuant to this Addendum, the term "Lease Term" as used in the
Lease, shall be construed to include, when practicable, the Extension Term
except as provided in (g) above.
- 2 -
ADDENDUM F
STORAGE AND USE OF PERMITTED HAZARDOUS MATERIALS
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED May 3, 1996, BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST
and
NOVELLUS SYSTEMS, INC.
(a) PERMITTED HAZARDOUS MATERIALS AND USE.
Tenant has requested Landlord's consent to use the Hazardous Materials
listed below in its business at the Premises (the "PERMITTED HAZARDOUS
MATERIALS") . Subject to the conditions set forth herein, Landlord hereby
consents to the Use (hereinafter defined) of the Permitted Hazardous Materials.
Any Permitted Hazardous Materials on the Premises will be generated, used,
received, maintained, treated, stored, or disposed in a manner consistent with
good engineering practice and in compliance with all Environmental Requirements.
(b) PERMITTED HAZARDOUS MATERIALS (INCLUDING MAXIMUM QUANTITIES).
Typ. Quantity Max. Quantity Compound
------------- ------------- --------
20 gal 100 gal. CU200 Plating Solution
1.5 kg 3 kg. CupraSelect
1.5 kg 3 kg. (3-hexyne) Cu (hfac)
500 g 1 kg hfac
500 g 1 kg TDEAT
1 gal. 5 gal. IPA
1 gal. 5 gal. Acetone
17 gal. 30 gal. sulfuric acid
15 gal. 15 gal. sodium hydroxide
195 ft(3) 390 ft(3) hydrogen
10 lbs. 10 lbs. nitrogen tri-fluoride
50 lbs. 100 lbs. ammonia
232 ft(3) 464 ft(3) helium
337 ft(3) 674 ft(3) oxygen
1300 ft(3) 1700 ft(3) nitrogen
1 gal. 5 gal. hydrochloric acid (HCI)
250 gr. 500 gr. urea
250 gr. 500 gr. thlourea
(c) USE: All of the Permitted Hazardous Materials will be used for
research and development of thin film deposition equipment.
(d) NO CURRENT INVESTIGATION. Tenant represents and warrants that it is
not currently subject to an inquiry, regulatory investigation, enforcement
order, or any other proceeding regarding the generation, use, treatment,
storage, or disposal of a Hazardous Material.
(e) NOTICE AND REPORTING. Tenant immediately shall notify Landlord in
writing of any spill, release, discharge, or disposal of any Hazardous Material
in, on or under the Premises or the Project. All reporting obligations imposed
by Environmental Requirements are strictly the responsibility of Tenant. Tenant
shall supply to Landlord within 5 business days after Tenant first receives or
sends the same, copies of all claims, reports, complaints, notices, warnings or
asserted violations relating in any way to Tenant's use of the Premises.
(f) INDEMNIFICATION. Tenant's indemnity obligation under the Lease with
respect to Hazardous Materials shall include indemnification for the
liabilities, expenses and other losses described therein as a result of the Use
of the Hazardous Materials or the breach of Tenant's obligations or
representations set forth above. It is the intent of this provision that Tenant
be strictly liable to Landlord as a result of the Use of Hazardous Materials
without regard to the fault or negligence of Tenant, Landlord or any third
party.
(g) DISPOSAL UPON LEASE TERMINATIONS. At the expiration or earlier
termination of the Lease, Tenant, at it sole cost and expense, shall: (i) remove
and dispose off-site any drums, containers, receptacles, structures,
or tanks storing or containing Hazardous Materials (or which have stored or
contained Hazardous Materials) and the contents thereof; (ii) remove, empty, and
purge all underground and above ground storage tank systems, including connected
piping, of all vapors, liquids, sludges and residues; and (iii) restore the
Premises to its original condition. Such activities shall be performed in
compliance with all Environmental Requirements and to the satisfaction of
Landlord. Landlord's satisfaction with such activities or the condition of the
Premises does not waive, or release Tenant from, any obligations hereunder.
- 2 -
ADDENDUM G
SIGN CRITERIA
WILSONVILLE CORPORATE CENTER PHASE II
TENANT IDENTIFICATION SIGNS
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED May 3, 1996, BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST
and
NOVELLUS SYSTEMS, INC.
BASIC IDENTIFICATION SIGN:
Each Tenant is allowed a basic identification sign to display company name in
11" microgramma letters the color of which shall match the accent stripe on the
building (Xxxxxxx Xxxxxxxx BC 8621 to match Xxxxxx O'Brien D-120 "Ink"). Logos
or symbols of the same construction as letters are allowed a maximum of 20" in
any one dimension, color may be determined by Tenant and approved by ownership.
Letters and logos are to be non-illuminated and individually mounted with the
building facade providing the background. Corporate or company names will be
listed in capital letters only, no lower case letters are allowed. Letter
height will remain consistent at 11" with the length of the sign varying
according to the length of the name displayed. Logos or symbols are to be
centered from top to bottom in the sign area. Names will be mounted below the
accent stripe, and to the left or right side depending upon Tenant's front door
location. Logo placement is dependent upon sign location. This Tenant building
sign will be restricted to company or corporate name and logo or symbol only, no
division names, descriptions of services or slogans are allowed in this sign
area.
WINDOW SIGNS
Identity signs displaying trademarks or logos may be used on the glass panel to
the left or the right of the entrance door depending upon location of basic
identification sign (see above), i.e., if identification sign is mounted to the
RIGHT of the outside window frame, then window sign would be placed on glass
panel to the left of the entrance door (see Exhibit A). These signs may be
either painted or pressure sensitive vinyl or a combination of both. Company
names shall be listed in 3" white pressure sensitive capital letters in the
microgramma style. Logos and symbols may be in corporate colors as determined
by Tenant. Tenant is required to submit a layout to the ownership for final
approval.
REAR LOADING SIGNS:
Each Tenant will be allowed to identify its rear door for shipping and receiving
purposes. The company name shall be placed on a 36" x 24" aluminum panel
adjacent to the rear doors. The aluminum panel shall be painted to match the
building.
Copy shall consist of 3" dark blue vinyl capital letters only in Futura Bold
style. Company names and logos only are allowed.
MANAGEMENT RESERVES THE RIGHT TO DENY ANY COPY IT CONSIDERS UNSUITABLE. LAYOUT
IS TO BE APPROVED BY BUILDING MANAGEMENT. THE COST OF ALL LETTERING AND LOGOS
WILL BE THE RESPONSIBILITY OF THE TENANT. NO OTHER SIGNS ARE ALLOWED IN THE
WINDOWS OR DOORS.
ADDENDUM H
ASSIGNMENT AND SUBLETTING (CONSENT)
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED May 3, 1996, BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST
and
NOVELLUS SYSTEMS, INC.
In the event any of the terms and conditions of this Addendum H conflict
with any of the terms and conditions of Paragraph 17 of the Lease, the
conflicting terms and conditions of this Addendum H shall supersede and control.
(a) Landlord shall not unreasonably withhold its consent to Tenant's
request for permission to assign the Lease or sublease all or part of the
Premises. It shall be reasonable for the Landlord to withhold its consent to
any assignment or sublease in any of the following instances:
(i) The assignee or subleases does not have a net worth calculated
according to generally accepted accounting principles at least equal to
$5,000,000; provided that the criterion contained in this subparagraph (i)
may not serve as a basis for Landlord to reasonably withhold its consent if
at the time of such assignment or subletting to an entity whose net worth
calculated according to generally accepted accounting principles is less
than $5,000,000, Tenant provides Landlord with an unconditional,
irrevocable $115,000 letter of credit in a form, from a bank, and
containing terms, satisfactory to Landlord, securing Tenant's, and such
assignee's or sublessee's, obligation to (a) demolish and remove from the
Premises all improvements Tenant is obligated to remove in accordance
with Paragraphs 12 and 21 of the Lease, and (b) after such demolition and
removal, restore the Premises to the condition required by such Paragraphs
12 and 21. Unless otherwise permitted by Landlord, such letter of credit
must stay in effect until after all of Tenant's, and such assignee's or
sublessee's, obligations under the Lease have been completely satisfied.
(ii) The intended use of the Premises by the assignee or
sublessee is not reasonably satisfactory to Landlord;
(iii) The intended use of the Premises by the assignee or
sublessee would materially increase the pedestrian or vehicular traffic to
the Premises or the Project;
(iv) Occupancy of the Premises by the assignee or sublessee
would, in Landlord's opinion, violate any agreement binding upon Landlord
or the Project with regard to the identity of tenants, usage in the
Project, or similar matters;
(v) The identity or business reputation of the assignee or
sublessee will, in the good faith judgment of Landlord, tend to damage the
goodwill or reputation of the Project;
(vi) The assignment or sublet is to another tenant in the Project
and is at rates which are below those charged by Landlord for comparable
space in the Project;
(vii) In the case of a sublease, the subtenant has not
acknowledged that the Lease controls over any inconsistent provision in the
sublease; or
(viii) The proposed assignee or sublessee is a government entity.
The foregoing criteria shall not exclude any other reasonable basis for
Landlord to refuse its consent to such assignment or sublease.
(b) Any approved assignment or sublease shall be expressly subject to the
terms and conditions of the Lease.
(c) Tenant shall provide to Landlord all information concerning the
assignee or sublessee as Landlord may request.
(d) Landlord may revoke its consent immediately and without notice if, as
of the effective date of the assignment or sublease, there has occurred and is
continuing any default under the Lease.
ADDENDUM I
INDEMNIFICATION BY LANDLORD
ATTACHED TO AND A PART OF THE LEASE AGREEMENT
DATED May 3, 1996, BETWEEN
SECURITY CAPITAL INDUSTRIAL TRUST
and
NOVELLUS SYSTEMS, INC.
Landlord covenants and agrees to indemnify and save Tenant, its employees
and agents harmless of and from any and all claims, costs, expenses and
liabilities, including, without limitation, attorneys' fees, arising on
account of or by reason of claims by third parties for injuries or death to
persons or damages to property resulting from the negligence or willful
misconduct of Landlord or its agents, employees, or contractors, to the
extent not attributable to any negligence of Tenant, any assignee or
subtenant of Tenant, or their respective employees, agents, or contractors.
If a claim under the foregoing indemnity is made against the indemnitee which
the indemnitee believes to be covered by an indemnitor's indemnification
obligations hereunder, the indemnitee shall promptly notify the indemnitor of
the claim and, in such notice shall offer to the indemnitor the opportunity
to assume the defense of the claim within 10 business days after receipt of
the notice (with counsel reasonably acceptable to the indemnitee). If the
indemnitor timely elects to assume the defense of the claim, the indemnitor
shall have the right to settle the claim on any terms it considers reasonable
and without the indemnitee's prior written consent, as long as the settlement
shall not require the indemnitee to render any performance or pay any
consideration, and the indemnitee shall not have the right to settle any such
claim. If the indemnitor fails timely to elect to assume the defense of the
claim or fails to defend the claim with diligence, then the indemnitee shall
have the right to take over the defense of the claim and to settle the claim
on any terms the indemnitee considers reasonable. Any such settlement shall
be valid as against the indemnitor. If the indemnitor assumes the defense of
a claim, the indemnitee may employ its own counsel but such employment shall
be at the sole expense of the indemnitee. If any such claim arises out of
the negligence of both Landlord and Tenant, responsibility for such claim
shall be allocated between Landlord and Tenant based on their respective
degrees of negligence. This indemnity does not cover claims arising from the
presence or release of Hazardous Materials.
