Exhibit 10.84
LEASE AGREEMENT
THIS LEASE AGREEMENT is entered into as of the 22nd day of January,
2001, by Plazamerica, Inc, a California corporation ("Landlord") and
Xxxxxxxxxx Laboratories, Inc, a Texas corporation ("Tenant"), to evidence
that:
LEASE OF THE PREMISES
Landlord LEASES, DEMISES and LETS to Tenant and Tenant leases from
Landlord the land described in Exhibit "A" attached to this Lease (the
"Land"), the building on the Land (the "Building") and the other
improvements, including the parking areas, owned by Landlord on the Land
(the "Other Improvements"). The Land, the Building and the Other
Improvements are referred to collectively as the "Premises" in this Lease.
The term of this Lease (the "Term") will begin on the earlier to occur of
(i) the date the Premises are Substantially Complete (hereinafter defined),
(ii) June 15, 2001, or (iii) the date Tenant commences business operations
from the Premises (the "Commencement Date"), and shall end ten (10) Lease
Years (hereinafter defined) from the 1st day of the month following the
Commencement Date, unless the Commencement Date occurs on the 1st day of a
month, in which event the first Lease Year shall begin on the Commencement
Date. The term "Substantially Complete" means that the improvements to be
constructed by Tenant as contemplated in the Addendum attached hereto have
been completed in substantial accordance with the plans and specifications
therefor, the Premises is capable of being occupied for its intended purpose
and a certificate of occupancy has been issued for the Premises. The term
"Lease Year" shall mean a period of twelve (12) consecutive calendar months.
This Lease is made on and subject to all of the provisions, terms, covenants
and conditions set out below.
BASIC LEASE INFORMATION
A. Base Rent: $ (SEE ADDENDUM)
B. Security Deposit $ (SEE ADDENDUM)
C. Permitted Use: General office, laboratory and warehouse, only.
D. Address of Landlord: Plazamerica, Inc.
00000 Xxxxxx Xxxxxx, Xxxxx X-0
Xxxxx Xxx Xxxxxxx, XX 00000
Attention: Leasing Department
E. Address of Tenant: Xxxxxxxxxx Laboratories, Inc.
0000 Xxxxxx Xxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
F. Leased Premises: The premises as defined herein consists of
approximately 000,000 xxxxxx xxxx xx xxxx xxxx and approximately 51,205
square feet of building area. The parties hereto agree and acknowledge that
all square footages set forth herein, and in the Supplemental Terms,
Covenants And Conditions of the Lease, are only approximations, and the
parties to this Lease have agreed that the monthly rental payments as set
forth in the Lease and the Lease Addendum are true and correct in substance
as consideration.
SUPPLEMENTAL TERMS, COVENANTS AND CONDITIONS
Landlord leases the Premises to Tenant and Tenant accepts and agrees to
use and possess the Premises on the following Supplemental Terms, Covenants
and Conditions. References below to the "Basic Lease Information" are
references to the information set out above. If a conflict exists between
the Basic Lease Information and the provisions below, the provisions below
will control.
1. Rent. Tenant will pay Landlord, without demand, setoff or deduction
except as otherwise expressly provided herein, a net monthly rental (the
"Base Rent") as specified in the Basic Lease Information. The Base Rent
will be due on the first day of each calendar month during the Term, except
Base Rent for the first full month of the Term shall be deposited with
Landlord contemporaneously with the delivery by Tenant to Landlord of this
Lease. Tenant will pay all amounts due to Landlord under this Lease at the
address specified in the Basic Lease Information or elsewhere as designated
from time to time in notice from Landlord to Tenant; and all amounts payable
by Tenant under this Lease in addition to Base Rent are additional rentals,
excluding only any amounts expressly designated as not being rent.
2. Use of the Leased Premises. Tenant will use and occupy the Premises
for the Permitted Use specified in the Basic Lease Information and for no
other purpose. Tenant must use and maintain the Premises in a clean,
careful, safe and proper manner and in compliance with all applicable laws
(including environmental protection laws), ordinances, orders, rules and
regulations of all governmental bodies. Tenant will not in any manner
deface or injure the Premises or overload the floors of the Building; and
subject only to Paragraph 14 below, Tenant must pay Landlord on demand for
any damage occurring to the Premises during the Term which Tenant fails to
promptly repair in accordance with the provisions of this Lease. Tenant will
conduct its business and occupy the Premises and will control its agents,
employees, licensees and invitees in a manner that will not create any
nuisance or illegally interfere with any of the owners or occupants of
surrounding properties, and in full compliance with the easements,
covenants, and restrictions which are scheduled on Exhibit "D" attached
hereto and made a part hereof.
3. Condition and Acceptance of the Leased Premises. The occupancy of
the Premises by Tenant shall constitute the acknowledgment and agreement of
Tenant that Tenant has inspected the Premises, that Tenant is fully familiar
with the physical condition of the Premises, that Tenant has received the
same in good order and condition and that the Premises comply in all
respects with the requirements of this Lease and are specifically suitable
to Tenant's purpose. LANDLORD AND TENANT AGREE THAT LANDLORD MAKES NO
WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, CONCERNING THE REPAIR OR
CONDITION OF THE PREMISES OR THE FITNESS OR SUITABILITY OF THE PREMISES FOR
TENANT'S INTENDED USE, OTHER THAN AS EXPRESSLY SET FORTH IN THIS LEASE.
EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, TENANT HEREBY EXPRESSLY
AND SPECIFICALLY WAIVES ALL SUCH WARRANTIES. (SEE ADDENDUM)
4. Payment of Taxes and Insurance. Tenant will periodically pay rent
in addition to the Base Rent to cover "Taxes" and "Insurance Costs" (both as
defined below). Within thirty (30) days after receipt of any invoice for
Taxes or Insurance Costs, or as soon after such thirty (30) day period as
reasonably possible, Landlord will deliver a copy of the invoice to Tenant.
Tenant must pay Landlord the amount due under the invoice no later than the
later of (i) ten (10) days after receipt of the invoice, or (ii) fifteen
(15) days prior to the date on which payment on the invoice is due by
Landlord. If for any reason Landlord does not receive an invoice for Taxes
or Insurance Costs due with respect to the Premises, Landlord may prepare
and deliver a statement for such Taxes and Insurance Costs to Tenant
together with evidence reasonably supporting the amounts shown in such
statement, and such statement will have the same force as an invoice for the
purposes of this paragraph. Landlord may, in its sole discretion, make a
reasonable and good faith estimate of the annual amount for Taxes and
Insurance Costs and xxxx same to Tenant on a monthly basis in twelve (12)
equal installments; provided, however, within thirty (30) days after the
actual invoices are received by Landlord, any overpayment or underpayment
will be refunded or paid to either Tenant or Landlord, as the case may be.
As used herein, "Taxes" means all ad valorem taxes, charges, impositions and
liens for public improvements, and assessments against the Premises,
together with interest, penalties or other charges which may accrue thereon
as a result of Tenant's failure to promptly pay the amounts due under this
Paragraph 4. As used herein, "Insurance Costs" shall mean the costs and
expenses incurred by Landlord for the insurance required to be carried by
Landlord pursuant to Paragraph 11 below. Landlord shall use its good faith
efforts to ensure that the Insurance Costs are as cost effective as is
reasonably practical under the circumstances. Tenant shall have the right
to contest the amount or validity of the Taxes by appropriate administration
and legal proceedings brought either in its own name, Landlord's name or
jointly and Landlord, as Tenant may deem appropriate, by counsel selected
and engaged by Tenant. Landlord shall execute and deliver to Tenant
whatever documents may be necessary or proper to permit Tenant to so contest
such Taxes or which may be necessary to secure payment of any refund which
may result from any such proceedings, and Landlord hereby irrevocably
designates Tenant as its attorney-in-fact to execute such documents. If the
Premises shall constitute a separate tax lot, any such proceedings shall be
undertaken at the sole cost and expense of Tenant and any refund resulting
therefrom shall, to the extent of the Taxes paid for the fiscal tax year or
years being contested, belong solely to Tenant; on the other hand, if the
Premises is part of the larger parcel for tax assessment purposes, any
refund resulting from such a proceeding brought either by Tenant or Landlord
or by them jointly shall be applied and paid first to reimburse the party or
parties who brought the proceeding for the costs and expenses of such
proceeding borne by such party or parties and then to reimburse Tenant for
the difference between the amount it paid for Taxes for each tax year
covered in whole or in part by the fiscal tax year or years involved in such
proceeding and the amount Tenant would have been required to pay for such
tax year if the taxes for such fiscal tax year or years had been assessed in
accordance with the decision rendered in such proceeding, together with
interest on the amount of such difference at the annual rate allowed by the
court on the overpayment of taxes, and any remaining balance shall be paid
to Landlord.
5. Landlord's Repairs. Landlord, at its own cost and expense, shall
maintain only the roof (including any roof membrane), the foundation and the
structural soundness of the exterior walls of the Building in good repair,
reasonable wear and tear excluded. Landlord's duty to maintain shall
include the duty to replace as necessary or appropriate. Additionally,
Landlord shall be responsible for repairing and replacing the parking areas
of the Premises (the "Parking Areas") to the extent that such replacement or
repairs are due to latent defects in the Parking Areas existing prior to the
date of this Lease. The term "walls" as used herein shall not include
windows, glass or plate glass, doors, special store fronts or office
entries. Tenant shall immediately give Landlord written notice of defect or
need for repairs.
6. Tenant's Repairs.
(a) Tenant, at its own cost and expense, shall (i) maintain all
parts of the Premises, including, without limitation, the Parking Areas,
landscape and grounds (except those portions of the Premises for which
Landlord is expressly responsible hereunder), in good condition and (ii)
promptly make all necessary repairs and replacements thereto.
(b) Tenant, at its own cost and expense, shall enter into a
regularly scheduled preventive maintenance/service contract with a
maintenance contractor approved by Landlord for servicing all hot water,
heating and air conditioning systems and equipment within the Premises. The
service contract must include all services required by the equipment
manufacturer in its operations/maintenance manual necessary to avoid
invalidating any service warranties and must become effective not later than
the Commencement Date.
7. Utilities.
(a) Landlord agrees to provide normal water, gas and electricity
service to the Premises. Not later than ten (10) days after the Landlord
delivers the Premises to Tenant for Early Occupancy as provided in Paragraph
1 of the Addendum to Lease, Tenant shall contract for and pay in its own
name all of such utilities and services, including, without limitation, all
water, gas, heat, light, power, telephone, sewer, and sprinkler charges,
together with any taxes, penalties, surcharges or the like pertaining to the
Tenant's use of the Premises, and any deposits or maintenance charges for
utilities.
(b) No interruption or malfunction of any utility service, or if
either the quantity or character of any utility service is changed or is no
longer available to or is no longer suitable for Tenant's requirements,
shall constitute an eviction or disturbance of Tenant's use or possession of
the Premises or a breach by Landlord of any of Landlord's obligations
hereunder or render Landlord liable or responsible to Tenant for any damage
which Tenant may sustain or incur or entitle Tenant to be relieved from any
of Tenant's obligations hereunder, including, without limitation, the
obligation to pay rent, or grant Tenant any right to set-off, abatement, or
recoupment. The failure by Landlord to furnish, or any slowdown, stoppage
or interruption of, any utility service resulting from causes beyond the
control of Landlord, including without limitation, Landlord's compliance
with any voluntary or similar governmental or business guidelines now or
hereafter published or any requirements now or hereafter established by any
governmental agency, board or bureau having jurisdiction over the operation
of the Building, shall not render Landlord liable in any respect for damages
to either persons, property, or business, or be construed as an eviction of
Tenant or work an abatement of rent, nor relieve Tenant of Tenant's
obligations for fulfillment of any covenant or agreement hereof.
8. Alterations and Additions. Except as hereinafter provided, Tenant
shall not make any alterations, additions or improvements to the Premises
without the prior written consent of Landlord. Tenant may, without
Landlord's consent, make interior, non-structural alterations which do not
affect electrical, mechanical or plumbing systems, and which do not exceed
$20,000.00 per occurrence and $200,000.00 in the aggregate over the term of
the Lease. In addition, Tenant, at its own cost and expense, may erect such
shelves, bins, machinery and trade fixtures as it desires provided that: (a)
such items do not alter the basic character of the Premises or the Building
and/or improvements of which the Premises are a part; (b) such items do not
overload or damage the same; and (c) such items may be removed without
injury to the Premises. All alterations, installations, removals and
restoration shall be performed in a good and workmanlike manner so as not to
damage or alter the primary structure or structural qualities of the
Building and other improvements situated on the Premises and shall comply
with all applicable governmental laws, ordinances, regulations and with
Landlord's specifications and requirements. All alterations, additions and
improvements made to or fixtures placed in the Premises (other than movable
office furniture and equipment not attached to the Building and Tenant's
trade fixtures) will be deemed a part of the Building and the property of
Landlord when placed in the Premises. At the expiration or termination of
the Term, Landlord may require the removal of any or all alterations,
personal property and equipment from the Premises, and the restoration of
the Premises to its prior condition, except for reasonable wear and tear, at
Tenant's expense; provided, however, under no circumstances shall Tenant be
required to remove the alterations being installed by Tenant pursuant to
Paragraph 3 of the Addendum or restore the Premises to a condition existing
prior to the construction of such alterations. Unless Landlord requires
their removal pursuant to this Lease, all alterations made to the Premises
shall remain upon and be surrendered with the Premises at the expiration or
termination of the Term. All personal property and equipment on or about
the Premises, other than that which is affixed to the Premises so that it
cannot be removed without material damage to the Premises or the Building,
shall be removed from the Premises by Tenant (if it is not in default) at
the expiration or termination of the Term. All removals by Tenant will be
accomplished in a good and workmanlike manner so as not to damage any
portion of the Premises or Building, and Tenant will promptly repair and
restore all damage done. If Tenant does not so remove any property which it
has the right or duty to remove, Landlord may immediately either claim that
Tenant has abandoned the property, or remove, store and dispose of it in any
manner Landlord may choose, at Tenant's cost, and without liability to
Tenant or any other party.
9. Signs. Tenant may install any signs which are directly or
indirectly related to its permitted use so long as the same comply with all
applicable laws, ordinances, rules and regulations and any covenants and
restrictions which are scheduled on Exhibit "D" attached hereto. Landlord
shall, at no expense to Landlord, cooperate with Tenant in applying for
permits and approval for such signage. Tenant shall repair, paint and/or
replace the Building facia surface to which its signs are attached upon
vacation of the Premises, or the removal or alteration of its signage.
Except as permitted in the first sentence of this Paragraph 9, Tenant shall
not (i) make any changes to the exterior of the Premises, (ii) install any
exterior lights, decorations, balloons, flags pennants, banners or painting,
or (iii) 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. All
signs, decorations, advertising media, blinds, draperies and other window
treatment or bars or other security installations visible from the outside
of the Premises shall conform in all respects with all applicable laws,
ordinances, rules and regulations and any covenants and restrictions which
are scheduled on Exhibit "D" attached hereto and made a part hereof.
10. Mechanic's Liens. Nothing in this Lease constitutes the consent or
request of Landlord, express or implied, to any contractor, subcontractor,
laborer or materialman for the performance of any labor or the furnishing of
any materials for any specific improvement, alteration or repair to the
Premises. Nor does anything herein contained or in any other agreement made
by Landlord and Tenant in connection with this Lease give Tenant any right,
power or authority to contract for or permit the rendering of any services
or the furnishing of any materials that would give rise to the filing of any
mechanic's or other liens against the interest of Landlord in the Premises.
If any lien is filed against the Premises because of work performed,
materials supplied or an obligation incurred by or at the request of (or
alleged request of) Tenant, then Tenant will within thirty (30) days after
notice of the filing of such lien cause the same to be discharged of record
or bond around the same in accordance with Section 53.171 et. seq. of the
Texas Property Code. If Tenant fails to discharge or bond around the lien
within such period, then, in addition to any other right or remedy of
Landlord, Landlord may (but will not be obligated to) discharge the same
either by paying the amount claimed to be due or by procuring the discharge
by deposit in court or bonding. Any amount paid by Landlord to discharge
the lien, and all reasonable legal and other expenses of Landlord, including
reasonable attorneys' fees, in defending any such action or in or about
procuring the discharge of the lien will be repaid by Tenant on demand.
11. Insurance. At all times during the term of this Lease, Landlord
shall maintain a policy or policies of all risk extended coverage insurance
on the Building in an amount equal to not less than 100% of the replacement
cost thereof issued by and binding upon an insurance company licensed to do
business in the State of Texas and having an A.M. Best Rating of "A-VI" or
better. At Tenant's request from time to time, Landlord shall provide
Tenant with a current certificate of insurance evidencing Landlord's
compliance with this Paragraph 11. Tenant, at its own expense, will procure
and maintain throughout the Term and any extensions or renewals of the Term
worker's compensation and comprehensive general liability insurance,
including contractual liability endorsement, against claims for bodily
injury, death and/or property damage occurring in or resulting from the
Premises, including injury, death and/or damage caused by the condition of
or any defect in the Premises. The policies evidencing such insurance must
be in broad form reasonably satisfactory to Landlord, must name Landlord as
an additional insured, must be issued by insurance companies reasonably
acceptable to Landlord, and must afford immediate protection to the limit of
not less than $2,000,000 inclusive for each occurrence. With respect to
each policy evidencing such comprehensive general liability insurance,
Tenant will obtain any available endorsements reasonably required by
Landlord, and Tenant will deliver a copy of the policy or a certificate
evidencing the same to Landlord. In addition, Tenant will obtain and
deliver to Landlord a written obligation on the part of each of its
insurance companies to notify Landlord at least fifteen (15) days prior to
any cancellation of or material change to such insurance. If Tenant fails
to comply with these requirements relating to insurance, then, in addition
to any other right or remedy of Landlord, Landlord may (but will not be
obligated to) obtain such insurance and charge Tenant the premium cost
thereof.
12. Tenant's Indemnification of Landlord. Tenant will indemnify and
hold Landlord harmless from all fines, suits, costs and liability of every
kind arising because of: (i) any violation or nonperformance by Tenant of
any representation or covenant contained in this Lease; (ii) bodily injury,
death and/or damage to property occurring in or resulting from any
occurrence in the Premises during the Term; and (iii) any bodily injury,
death and/or property damage that is incident to, arises out of, or is in
any way caused by the negligence or misconduct of Tenant or any of its
agents, employees, contractors, licensees or invitees. THE INDEMNITY SET
OUT IN THE PRECEDING SENTENCE WILL NOT BE IMPAIRED OR AFFECTED BY NEGLIGENCE
ON THE PART OF LANDLORD OR ANYONE ACTING FOR LANDLORD.
13. Liability of Landlord. Tenant accepts responsibility for keeping
all personal property and equipment in the Premises adequately insured and
for maintaining adequate business interruption insurance. Tenant waives for
itself and its insurers all rights of recovery against Landlord, Landlord's
agents, officers and employees, for any damage or loss, whether caused by
Landlord's negligence or otherwise, to the personal property and equipment
in the Premises and for any theft thereof and for direct or consequential
damages arising because of any interruption of Tenant's business in the
Premises. Because the preceding sentence will preclude any recovery by
Tenant or Tenant's insurers against Landlord for damage to or theft of
Tenant's property in the Premises and for any interruption of Tenant's
business in the Premises, Tenant agrees immediately to notify its insurers
of the terms of this Paragraph.
14. Casualty Damage.
(a) If the Building is damaged by fire or other casualty to the
extent that, in the judgment of an independent architect selected by
Landlord, the same cannot be fully repaired within 210 days after the date
the casualty occurs (the "Casualty Date"), then either Landlord or Tenant
may terminate this Lease by notifying the other within thirty (30) days
after the date the architect makes his determination, in which event the
rent under this Lease will be abated as of the Casualty Date. If this Lease
is not terminated, then within sixty (60) days after the Casualty Date, or
such greater period as may be reasonably necessary, Landlord will commence
to repair and restore the Premises and any portion of the Building required
for access to the Premises, and will diligently complete the same, but
Landlord is not required (a) to expend more for such repairs than the net
insurance proceeds (after any payment required under any mortgage affecting
the Premises) reasonably allocable to the Premises, or (b) to rebuild,
repair or replace any of Tenant's personal property, furniture, furnishings,
fixtures or equipment, all of which Tenant shall promptly and as soon as
reasonably possible repair and replace at its sole cost and expense. In the
event Landlord does not either (a) commence the repairs to the Building
within the time required herein or (b) complete the repairs to the Building
within 210 days after the Casualty Date, Tenant may terminate this Lease by
written notice thereof to Landlord given no later than thirty (30) days
following the date on which Landlord was to commence or complete such
repairs, as the case may be.
(b) If the Building is damaged by fire or other casualty during
the last twelve (12) months of the Term to the extent that, in the judgment
of an independent architect selected by Landlord, the same cannot be fully
repaired within sixty (60) days after the Casualty Date, then either
Landlord or Tenant may cancel this Lease as of the date of the fire or
casualty by notice to the other within thirty (30) days after the architect
makes his determination.
(c) Landlord will not be liable for any inconvenience or annoyance
to Tenant or injury to the business of Tenant resulting in any way from
damage caused by fire or other casualty or the repair of such damage, except
that, subject to the provisions of the next sentence, Landlord shall allow
Tenant a fair diminution of rent during the time and to the extent all or
part of the Premises are rendered unfit for occupancy because of fire or
other casualty. If the Premises is damaged by fire or other casualty
resulting from the intentional acts of Tenant or any employee, officer,
contractor, agent, subtenant, or licensee of Tenant, rent hereunder shall
not be abated.
(d) Notwithstanding anything in the other Paragraphs of this Lease
(including, without limitation, Paragraph 4 above) to the contrary, Landlord
and Tenant each waive any right of recovery against the other, and the
other's agents, officers, or employees, for any damage or loss to the
Building or its contents resulting from fire or other "casualty" (as defined
in subparagraph (a) above). However, without limiting any waivers in other
Paragraphs of this Lease, the waiver set out in this paragraph shall be
effective insofar, but only insofar, as compensation for such damage or loss
is actually recoverable by the waiving party (net of the costs of
collection) under a valid and collectible insurance policy; provided, that
if no such compensation is available to the waiving party because it has
failed to maintain an insurance policy covering such damage or loss with an
insurance company qualified to do business in Texas and with a replacement
cost endorsement (if such endorsement is available), then the waiver set out
in this paragraph shall not be limited to available insurance proceeds.
15. Eminent Domain.
(a) If the whole or any portion of the Premises materially
necessary to Tenant's use thereof is taken for any public or quasi-public
use, by right of eminent domain or otherwise, or should be sold in lieu of
such taking, then this Lease will terminate as of the date when title to the
Premises or the applicable portion vests in the condemning authority, and
any Base Rent or additional rent paid for the period after such termination
shall be refunded to Tenant. Following any such taking or sale of any
portion of the Premises, if this Lease is not terminated pursuant to the
immediately preceding sentence, the Base Rent payable by Tenant will be
reduced in proportion to the square footage of the Building taken (if any)
and Landlord will restore the Premises to the extent feasible; provided,
however, Landlord will not be required to spend more for such restoration
than the net proceeds of the taking or sale available to Landlord.
(b) All damages awarded for any taking of all or any part of the
Premises under the power of eminent domain and all proceeds from any sale in
lieu of such taking will be paid to Landlord, whether designated as
compensation for the diminution in value of Tenant's leasehold or for the
fee of the Premises. However, Landlord will not be entitled to any separate
award made to Tenant for loss or damage to Tenant's removable personal
property and trade fixtures. Nor will Landlord be entitled to any award
made to Tenant because of the interruption of Tenant's business, unless the
award is combined with or reduces an award for the diminution in value of
Tenant's leasehold.
16. Surrender Upon Termination.
(a) Upon the expiration or termination of this Lease, whether
caused by lapse of time or otherwise, Tenant will immediately surrender
possession of the Premises to Landlord in as good a condition as existed on
the date hereof, reasonable wear and tear, damage by casualty and any repair
or maintenance which Tenant is not required to make pursuant to the terms of
this Lease, excepted. Tenant will also deliver to Landlord all keys to the
Premises. If possession is not immediately surrendered, Landlord may enter
and take control of the Premises and remove Tenant and any other person who
may be occupying them.
(b) All alterations, additions or improvements made to the
Premises by or on behalf of Tenant (except trade fixtures) will remain on
the Premises without compensation to Tenant. However, Landlord may notify
Tenant to remove all alterations, additions or improvements made by Tenant
during the Term which Landlord specified as requiring removal at the time
Landlord approved the installation of same pursuant to Paragraph 8 above and
to repair any damage caused to the Premises by such removal. If so
notified, Tenant agrees to comply within the later of ten (10) days
following the date of such notice or the date upon which this Lease expires
or is terminated, whichever is later. Such removal and repair will be at
Tenant's expense.
(c) Tenant shall remove any furniture, trade fixtures and any
movable equipment installed by it upon the termination of this Lease. Such
removal must be accomplished in a good and workmanlike manner so as not to
damage the Premises. All furniture, trade fixtures and equipment not
promptly removed when this Lease is terminated will be presumed abandoned by
Tenant and Landlord may, at its option, take possession of such property and
either declare it to be abandoned by notifying Tenant thereof, or remove it
and store it or dispose of it at Tenant's expense.
17. Holding Over. If Tenant continues to hold the Premises after the
expiration or other termination of this Lease without the written consent of
Landlord, Tenant must, throughout the entire holdover period: (i) pay Base
Rent at a rate of 150% of the rate applicable immediately prior to the
holdover period, and (ii) continue to perform every other obligation
required of Tenant hereunder. Nonetheless, holding over by Tenant after the
expiration or other termination of the Term will not be construed to extend
the Term. Tenant agrees to indemnify Landlord against all claims for damages
resulting from any delay by Landlord in delivering possession of the
Premises to another tenant or prospective tenant caused by Tenant's holding
over. Any holding over with the written consent of Landlord will convert
this Lease to a lease from month-to-month, subject to all the terms and
conditions contained herein.
18. Assignment and Subletting.
(a) Tenant acknowledges that without the prior written consent of
Landlord (which consent shall not be unreasonably withheld or delayed),
Tenant does not have the right or power to assign or in any manner transfer
this Lease or any estate or interest hereunder. Further, without Landlord's
prior written consent (which consent shall not be unreasonably withheld or
delayed), Tenant shall not: (i) permit any assignment of this Lease or any
estate or interest hereunder, voluntarily or by operation of law; (ii)
sublet the Premises or any part thereof; (iii) grant any license, concession
or other right of occupancy of any portion of the Premises; or (iv) permit
the Premises to be possessed by any parties other than Tenant, its agents
and employees (hereinafter the above are individually and collectively
referred to as "Transfer"). Consent by Landlord to one or more Transfers
will not operate as a waiver of Landlord's rights as to any subsequent
Transfers. Notwithstanding any assignment or subletting, Tenant shall at
all times remain fully liable for the payment of the rent herein specified
and for compliance with all of Tenant's other obligations hereunder. If an
event of default (as defined below) should occur when this Lease is assigned
or any part of the Premises are sublet, Landlord, in addition to any other
remedies provided in this Lease or available at law, may at its option
collect directly from any assignee or subtenant all rents becoming due to
Tenant and apply them against any sums due from Tenant. Tenant hereby
authorizes and directs any assignee or subtenant to make such payments of
rent directly to Landlord upon request from Landlord. No collection by
Landlord from any assignee or subtenant will constitute a novation or a
release of Tenant or any guarantor of Tenant's obligations from the further
performance of Tenant's obligations. Nor will Landlord's receipt of rent
from any transferee, assignee, subtenant, or occupant of the Premises
constitute a waiver of Tenant's covenant against assignment and subletting.
Any attempted Transfer, assignment, sublease, mortgage or encumbrance by
Tenant in violation of this Paragraph will be void.
(b) Should Tenant desire to make a Transfer requiring Landlord's
consent, Tenant shall give Landlord not less than forty-five (45) days
prior written notice thereof and at the same time as giving such notice and
requesting Landlord's consent, submit a copy of the Transfer documents to
Landlord, together with a processing fee of $750.00, and notify Landlord of
the proposed commencement date of the Transfer, the name of the proposed
Transferee (accompanied by evidence of the nature, character, and financial
condition of the Transferee and its business which Landlord believes is
necessary for its determination), and all terms and conditions (including
rental) of or relating to the Transfer. If Landlord grants any request of
Tenant to assign this Lease or sublet any part of the Premises, such
assignment or subletting will be subject to all the terms and conditions of
this Lease, including conditions as to use and occupancy of the Premises.
Under no circumstances will Tenant be relieved from any obligation under
this Lease during any period that the Premises are sublet or this Lease is
assigned. If the consideration Tenant receives for any Transfer exceeds the
rent payable under this Lease for the same period and portion of the
Premises, seventy-five (75%) of the excess shall be immediately due and
payable by Tenant to Landlord as additional rent under this Lease.
(c) Notwithstanding anything to the contrary contained in this
Paragraph 18, Tenant may, without Landlord's prior written consent, but with
at least ten (10) days prior written notice to Landlord, (i) assign this
Lease to an entity into which Tenant is merged or consolidated or to an
entity which substantially all of Tenant's assets are transferred and (ii)
assign or sublet the Premises, or any part thereof, to an entity controlling
Tenant, controlled by Tenant or under common control with Tenant.
(d) If this Lease is assigned to any person or entity pursuant to
the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et. seq., (the
"Bankruptcy Code"), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid
or delivered to Tenant, shall be and remain the exclusive property of Tenant
and shall not constitute property of Tenant or of the estate of Tenant
within the meaning of the Bankruptcy Code. Any and all monies or other
considerations constituting Tenant's property under the preceding sentence
not paid or delivered to Tenant shall be held in trust for the benefit of
Tenant and be promptly paid or delivered to Tenant. The inclusion of this
subparagraph in this Lease is not intended as, and shall not be construed
as, the Landlord's consent to an assignment and/or assumption of this Lease.
(e) Any person or entity to which this Lease is assigned pursuant
to the provisions of the Bankruptcy Code shall be deemed, without further
act or deed, to have assumed all of the obligations arising under this Lease
on or after the date of such assignment. Any such assignee shall upon
demand execute and deliver to Tenant an instrument confirming such
assumption. The inclusion of this subparagraph in this Lease is not
intended as, and shall not be construed as, the Landlord's consent to an
assignment and/or assumption of this Lease.
(f) This Lease is a contract under which applicable law excuses
Tenant from accepting performance from (or rendering performance to) any
person or entity other than Tenant within the meaning of Sections 365(c) and
365(e)(2) of the Bankruptcy Code, or any successor or substitute statutes.
19. Transfers by Landlord. Landlord retains the right to transfer, in
whole or in part, the Premises and all of Landlord's rights and obligations
under this Lease. Upon the transfer of all of Landlord's rights and
obligations under this Lease, Landlord's obligations hereunder shall cease.
20. Estoppel Certificate. Tenant will, at any time and from time to
time during the Term, within fifteen (15) days after requested by Landlord,
execute, acknowledge, and deliver a statement in form satisfactory to
Landlord certifying: (i) that Tenant is in possession of the Premises under
the terms of this Lease; (ii) that this Lease is unmodified and in full
force (or, if there have been modifications, that this Lease is in full
force as modified and setting forth the modifications); (iii) the dates to
which the rent has been paid; (iv) that to the knowledge of Tenant no
default exists under this Lease (or specifying all defaults of which Tenant
has knowledge); and (v) other matters as may be reasonably requested by
Landlord. Any such statement by Tenant may be relied upon by any
prospective purchaser or mortgagee of the Premises or any interest therein,
and as between Tenant and such prospective purchaser or mortgagee, the
statement will be binding upon Tenant for all purposes.
21. Quiet Enjoyment. Subject to the other provisions in this Lease
and, specifically, to the condition that Tenant pay all rent when due and
keep and fulfill all of the terms, covenants, agreements and conditions to
be performed by Tenant, Tenant will peaceably and quietly enjoy the Premises
during the Term without any disturbance from Landlord or from any other
person claiming an interest in the Premises.
22. Subordination. This Lease is subject and subordinate to any
mortgage or deed of trust which now or may in the future affect the Land or
any interest of Landlord in the Building, and to all increases, renewals,
modifications, consolidations, replacements, and extensions thereof. This
Paragraph is self operative. No further instrument is required to effect
the subordination of this Lease to any such mortgage or deed of trust. In
confirmation of the subordination, however, Tenant agrees to execute,
acknowledge, and deliver promptly any certificate or instrument requested by
Landlord that evidences the subordination. Tenant agrees that if
proceedings are brought for the foreclosure of any such mortgage or deed of
trust or if the Premises are sold in lieu of foreclosure, Tenant will attorn
to the purchaser at the foreclosure or sale in lieu thereof upon the
purchaser's request. This Lease and all rights of Tenant are further
subject and subordinate to the matters specified on Exhibit "D" hereto.
Landlord represents and warrants to Tenant that at the time this Lease is
fully executed no mortgage or deed of trust lien will affect the Premises.
Notwithstanding anything to the contrary contained in this Paragraph 22, the
subordination of any rights hereunder to any future mortgage holder of the
Premises shall be conditioned upon such future mortgage holder's execution
and delivery of a subordination, non-disturbance and attornment agreement in
a form reasonably acceptable to Tenant and such mortgage holder.
23. Certain Rights Reserved by Landlord. Landlord has the following
rights, exercisable without causing an eviction (constructive or actual) or
disturbance of Tenant's possession of the Premises and without giving rise
to any claim for setoff or abatement of rent:
(a) after giving Tenant forty eight (48) hours' advance notice
(except in the event of an emergency, when no notice shall be required with
respect to making repairs), to enter upon the Premises at reasonable hours
to inspect, clean or make repairs or alterations (without implying any
obligation to do so) and to show the Premises to prospective lenders or
purchasers or, during the last six (6) months of the Term, prospective
tenants and, if the Premises are vacated, to prepare them for reoccupancy;
and
(b) to approve the weight, size and location of safes and other
heavy equipment and articles in the Premises and to require that all such
items and all furniture be moved into and out of the Building in the manner
reasonably directed by Landlord (movements of Tenant's property into or out
of the Building and within the Building are entirely at the risk and
responsibility of Tenant).
24. Default by Tenant. The occurrence of any one of the following
events will be an event of default by Tenant under this Lease:
(a) Tenant shall fail to pay Landlord when due any rental or other
sum of money required under this Lease, and such failure shall continue for
a period of five (5) business days after Landlord has given notice to Tenant
that such payment is past due.
(b) Tenant shall fail to perform or observe any term, covenant or
condition of this Lease (other than a failure to timely pay rent or other
charges) and Tenant fails to cure such failure within thirty (30) days after
notice thereof is given by Landlord, but if the failure is of a nature that
it cannot be cured within such 30 day period, Tenant shall not have
committed an event of default if Tenant commences the curing of the failure
within such thirty (30) day period and thereafter diligently pursues the
curing of same.
(c) Tenant shall become insolvent, or shall admit in writing its
inability to pay its debts when due, shall make a transfer in fraud of its
creditors, or shall make a general assignment or arrangement for the benefit
of creditors, or all or substantially all of Tenant's assets or Tenant's
interest in this Lease are levied on by execution or other legal process and
such levy is not set aside within sixty (60) days after the occurrence of
same.
(d) A petition shall be filed by Tenant to have Tenant adjudged a
bankrupt, or a petition for reorganization or arrangement under any law
relating to bankruptcy shall be filed by Tenant, or any such petitions shall
be filed against Tenant and shall not be removed within sixty (60) days.
(e) A receiver or trustee shall be appointed for all or
substantially all the assets of Tenant or for Tenant's interest in this
Lease.
(f) Tenant shall abandon the Premises.
25. Remedies of Landlord
(a) The various rights, elections and remedies of Landlord
contained in this Lease are cumulative. Upon the occurrence of any event of
default by Tenant, Landlord shall have the option, without any notice to
Tenant (except as expressly provided below) and with or without judicial
process, to pursue any one or more of the following remedies:
(i) Landlord may terminate this Lease, in which event Tenant
shall immediately surrender the Premises to Landlord.
(ii) Landlord may enter upon and take custodial possession of
the Premises by picking the locks if necessary, lock out or remove
Tenant and any other person occupying the Premises and alter the
locks and other security devices at the Premises, all without
Landlord being deemed guilty of trespass or becoming liable for
any resulting loss or damage and without causing a termination or
forfeiture of this Lease or of the Tenant's obligation to pay
rent.
(iii) Landlord may enter the Premises and take possession of
and remove any and all personal property situated in the Premises,
without liability for trespass or conversion. If Landlord takes
possession of and removes Tenant's personal property from the
Premises, then until Tenant reclaims the property, Landlord may
(but shall not be required to) store such personal property in a
public warehouse or elsewhere at the cost of and for the account
of Tenant without the resort to legal process and without becoming
liable for any resulting loss or damage.
(iv) Landlord may perform on behalf of Tenant any obligation
of Tenant under this Lease which Tenant has failed to perform, and
the cost of the performance will be deemed additional rental and
will be payable by Tenant to Landlord upon demand.
Landlord's pursuit of any remedy specified in this Lease will not constitute
an election to pursue that remedy only, nor preclude Landlord from pursuing
any other remedy available at law or in equity, nor constitute a forfeiture
or waiver of any rent or other amount due to Landlord as described below.
(b) In the event Landlord enters and takes possession of the
Premises without causing a termination of this Lease, Landlord will have the
right to relet the Premises as agent for Tenant, in the name of Tenant or
Landlord or otherwise, on such terms as Landlord deems advisable. Landlord
will not be required to incur any expense to relet the Premises and the
failure of Landlord to relet the Premises shall not reduce Tenant's
liability for monthly rentals and other charges due under this Lease or for
damages. Landlord will not be obligated to relet for less than the then
market value of the Premises or to relet the Premises when other comparable
rental space offered by Landlord is available. Without causing a
termination or forfeiture of this Lease after an event of default by Tenant,
Landlord may: (i) relet the Premises for a term or terms to expire at the
same time as, earlier than, or subsequent to, the expiration of the Term;
(ii) remodel or change the use and character of the Premises; (iii) grant
rent concessions in reletting the Premises if necessary in Landlord's
judgment, without reducing Tenant's obligation for rentals specified in this
Lease; and (iv) relet all or any portion of the Premises as a part of a
larger area. Subject to the next subparagraph (c), Landlord may retain the
excess, if any, of the rent earned from reletting the Premises over the
rentals specified in this Lease.
(c) No re-entry or reletting of the Premises or any filing or
service of an unlawful detainer action or similar action will be construed
as an election by Landlord to terminate or accept a forfeiture of this Lease
or to accept a surrender of the Premises after an event of default by
Tenant, unless a written notice of such intention is given by Landlord to
Tenant; but notwithstanding any such action without such notice, Landlord
may at any time thereafter elect to terminate this Lease by notifying
Tenant.
(d) Upon the termination of this Lease because of an event of
default by Tenant, Landlord will be entitled to recover all unpaid rentals
that have accrued through the date of termination plus the costs of
performing any of Tenant's obligations (other than the payment of rent) that
should have been but were not satisfied as of the date of such termination.
In addition, Landlord will be entitled to recover, not as rent or a penalty
but as compensation for Landlord's loss of the benefit of its bargain with
Tenant, the difference between (i) an amount equal to the present value of
the rent and any other sums that this Lease provides Tenant will pay for the
remainder of the Term and for the balance of any then effective extension of
the Term, and (ii) the present value of the net future rentals for such
period that will be or with reasonable efforts could be collected by
Landlord by reletting the Premises.
(e) After an event of default by Tenant, Landlord may recover from
Tenant from time to time and Tenant shall pay to Landlord upon demand,
whether or not Landlord has relet the Premises or terminated this Lease, (i)
such expenses as Landlord may incur in recovering possession of the
Premises, terminating this Lease, placing the Premises in good order and
condition and altering or repairing the same for reletting; and (ii) all
other expenses, commissions and charges incurred by Landlord in exercising
any remedy or as a result of the event of default by Tenant.
(f) In the event that any future amount owing to Landlord or
offsetting an amount owing to Landlord is to be discounted to present value
under this Lease, the present value shall be determined by discounting at
the per annum rate equal to the Discount Rate (as published in the Money
Rates table of The Wall Street Journal one (1) business day following the
date of the event of default), plus one and one-half percent (1 1/2%).
(g) This Paragraph 25 shall be enforceable to the maximum extent
not prohibited by applicable law, and the unenforceability of any provision
in this Paragraph shall not render any other provision unenforceable.
(h) Notwithstanding anything in this Lease to the contrary all
amounts payable by Tenant to or on behalf of Landlord under the Lease,
whether or not expressly denominated as rent, shall constitute rent for the
purposes of Section 502(b)(7) of the Bankruptcy Code, or any successor or
substitute statutes.
26. Late Payment Charge. In the event Tenant fails to pay any rent
specified in this Lease within five (5) business days after it is due, then
Tenant agrees to pay to Landlord as a late payment charge an amount equal to
five percent (5%) of the rent in arrears.
27. No Waivers. No waiver by Landlord of any provision of this Lease
will be deemed a waiver of any other provision or of any subsequent breach
by Tenant. Landlord's consent to or approval of any act will not be deemed
to render unnecessary the obtaining of Landlord's consent to or approval of
any subsequent act by Tenant. Landlord's acceptance of rent will not
constitute a waiver of any preceding breach by Tenant of this Lease,
regardless of Landlord's knowledge of the preceding breach at the time
Landlord accepts the rent. Any payment by Tenant or receipt by Landlord of
a lesser amount than the Base Rent and additional rental stipulated in this
Lease will be deemed to be on account of the earliest stipulated rental.
Notwithstanding any endorsement or statement on any check or any letter
accompanying any check or payment of Base Rent or additional rental,
Landlord may accept such check or payment without prejudice to Landlord's
right to hold the Tenant in default and recover the balance of any Base Rent
or additional rental due and pursue any other remedy provided in this Lease.
Landlord's failure to take any action in regard to Tenant's default,
regardless of how long, will not constitute a waiver of such default. Any
waiver of Tenant's default must be in writing and signed by Landlord. Any
written waiver by Landlord will constitute a waiver only in the specific
circumstances described in the waiver.
28. Default by Landlord
(a) All covenants of Tenant in this Lease are independent
covenants, not conditioned upon Landlord's satisfaction of its obligations
hereunder, except to the extent otherwise specifically provided herein.
(b) If Landlord defaults in the performance of any of its
obligations under this Lease, it will have thirty (30) days to cure after
Tenant notifies Landlord of the default; or if the default is of a nature to
require more than thirty (30) days to remedy, Landlord will have the time
reasonably necessary to cure it, provided Landlord commences the cure within
such thirty (30) day period and thereafter diligently pursues the cure to
completion.
(c) Tenant agrees to serve a notice of claimed default or breach
by Landlord upon the lender (if any) holding a first mortgage or deed of
trust against the Premises (herein called "Landlord's Mortgagee") if Tenant
has been made aware in writing of the name and address of such lender.
Notwithstanding anything to the contrary contained herein, Tenant will not
exercise any remedy hereunder because of a default by Landlord before
allowing Landlord's Mortgagee an additional fifteen (15) days beyond the
same period following such notice to cure the default or breach as is
allowed Landlord. But this subparagraph (c) will not be interpreted as
creating or broadening any right of Tenant because of a default by Landlord.
(d) In the event of a default by Landlord, Tenant shall not have
the right to terminate this Lease, but shall be entitled to an action for
damages. The liability of Landlord to Tenant for any default by Landlord
under the terms of this Lease is limited to the interest of Landlord in the
Premises (including current and future rents payable hereunder, insurance
proceeds and condemnation proceeds), it being intended that Landlord not be
personally liable for any judgment or deficiency.
29. Attorneys' Fees. If, because either party fails to cure a breach
of this Lease within any permitted cure period, the other party incurs
attorneys' fees, then the breaching party will reimburse the other party for
such fees upon demand.
30. Notices. Any notice or document required or permitted to be
delivered under this Lease must be in writing and will be deemed to be
delivered, whether actually received or not, upon first attempted delivery
if hand delivered or postmarked by the U. S. Postal Service, postage
prepaid, registered or certified mail, return receipt requested, or sent by
courier or Express Mail where evidence of delivery is retained, addressed to
the parties at their respective addresses as set out in the Basic Lease
Information, or at such other address as they specify by written notice
delivered in accordance with this Paragraph.
31. Time of Essence. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is
specified.
32. Severability. A determination that any term or provision of this
Lease, or the application thereof to any person or circumstance, is invalid
or unenforceable, will not affect the remainder of this Lease or the
application of such term or provision to persons or circumstances other than
those as to which it is invalid or unenforceable.
33. Authority. If Tenant is a corporation, Tenant will deliver
certified resolutions to Landlord, upon request, evidencing that the
execution and delivery of this Lease has been duly authorized and properly
executed, and will deliver such other evidence of existence, authority and
good standing as Landlord shall reasonably require.
34. Recordation. Tenant hereby agrees that it will not file this Lease
of record.
35. Successors and Assigns. The conditions, covenants and agreements
contained in this Lease will be binding upon and, subject to the provisions
as to assignment and subletting, inure to the benefit of the parties, their
respective heirs, executors, administrators, successors and assigns.
36. Paragraph Headings. The paragraph headings contained in this Lease
are for convenience only and will in no way enlarge or limit the scope or
meaning of the various and several provisions.
37. No Merger. There shall be no merger of this Lease or of Tenant's
leasehold estate with the fee estate in the Premises by reason of the fact
that the same person may acquire or hold, directly or indirectly, both all
or any interest in this Lease or the leasehold estate and all or any
interest in the fee estate.
38. Construction. Tenant acknowledges that it has read and negotiated
this Lease in its entirety and is familiar with and understands all its
terms and provisions. Accordingly, Tenant agrees that if a dispute arises,
this Lease will not be construed in favor of either party, nor shall the
authorship of this Lease be a factor in any such construction.
39. Survival. All obligations of Tenant hereunder not fully performed
as of the expiration or earlier termination of the Term shall survive the
expiration or earlier termination of the Term, including without limitation,
all payment obligations with respect to Taxes and Insurance and all
obligations concerning the condition and repair of the Premises. Upon the
expiration or earlier termination of the Term, and prior to Tenant vacating
the Premises, Tenant shall pay to Landlord the amount, as estimated by
Landlord, of Tenant's obligation hereunder for Taxes and Insurance for the
year in which the Lease expires or terminates. All such amounts shall be
used and held by Landlord for payment of such obligations of Tenant
hereunder, with Tenant being liable for any additional costs therefore upon
demand by Landlord, or with any excess to be returned to Tenant after all
such obligations have been determined and satisfied as the case may be.
40. Environmental Liability.
(a) As used herein, "Environmental Laws" shall mean all statutes,
rules and regulations and orders of all applicable state, federal and county
governmental authorities relating to health or the environment, including
without limitation Section 311 of the Federal Water Pollution Control Act,
33 U.S.C. Section 1317, Section 1004 of the Federal Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., and the Comprehensive
Environmental Response Compensation and Liability Act, 42 U.S.C. Section
9601, et seq., or any successor or substitute statutes.
(b) The term "Hazardous Substances", as used in this Lease, shall
mean pollutants, contaminants, toxic or hazardous wastes, or any other
substances (including asbestos), the removal of which is required or the use
of which is restricted, prohibited or penalized by any "Environmental Laws".
(c) Tenant agrees that (i) all Hazardous Substances used on the
Premises will be used and stored in accordance with Environmental Laws, (ii)
the Premises will not be used in any manner for the storage of any Hazardous
Substances except for the storage of such materials that are used in the
ordinary course of Tenant's business (the "Permitted Materials"), provided
such Permitted Materials are properly stored in a manner and location
meeting all Environmental Laws; (iii) no portion of the Premises will be
used as a landfill or a dump, (iv) Tenant will not install any underground
tanks of any type, (v) Tenant will not allow any surface or subsurface
conditions to exist or come into existence that constitute or, with the
passage of time, constitute a public nuisance, (vi) Tenant will not permit
any Hazardous Substances to be brought onto the Premises except for the
Permitted Materials, and if so brought thereon, the same shall be promptly
removed or remediated, with proper disposal, and all required cleanup or
remediation procedures shall be diligently undertaken pursuant to all
Environmental Laws.
(d) Tenant acknowledges receipt of the Final Voluntary Compliance
Certificate of Completion ("VCP") issued by the Texas Natural Resource
Conservation Commission, a copy of which is attached hereto as Exhibit "C"
and incorporated by reference herein.
(e) Landlord agrees not to bring any Hazardous Substances upon the
Premises without Tenant's prior written consent. Except for the Hazardous
Substances specifically identified and disclosed in (i) that certain
Response Action Completion Report dated July 2000, prepared by Halff
Associates, Inc. for Hitachi Semiconductor (America), Inc. and (ii) that
certain Level II Asbestos Survey dated June 24, 1999, prepared by Industrial
Hygiene & Safety Technology, Inc. for Halff Associates, Inc., Landlord shall
indemnify, defend and hold Tenant harmless from and against any and all
losses, claims, demands, actions, suits, damages, expenses, and costs which
are brought or recoverable against, or suffered or incurred by Tenant as a
result of any release of Hazardous Substances on or about the Premises (i)
to the extent caused by Landlord, its agents or employees, and for which
Landlord is obligated to remediate in accordance with any Environmental Laws
or (ii) relating to any condition existing prior to Tenant's occupancy of
the Premises, to the extent not attributable, in whole or in part, to
Tenant's use or occupancy of the Premises.
41. Landlord's Lien.
(a) In addition to any statutory lien for rent in Landlord's
favor, Landlord shall have and Tenant hereby grants to Landlord a continuing
security interest for all rent and other sums of money which have been or
which will become due hereunder from Tenant now or hereafter situated at the
Premises (the "Collateral"). The Collateral shall not be removed from the
Premises without the consent of Landlord; provided, however, Tenant shall
have the right to sell its inventory in the ordinary course of business. In
the event any of the Collateral is removed from the Premises in violation of
the covenant in the preceding sentence, the security interest shall continue
in the Collateral and all proceeds and products of the Collateral,
regardless of location. Upon an event of default hereunder by Tenant, in
addition to all other rights and remedies, Landlord shall have all rights
and remedies under the Uniform Commercial Code, including without
limitation, the right to sell the Collateral described in this Paragraph at
public or private sale upon five (5) days notice by Landlord. Tenant hereby
agrees to execute such other instruments necessary or desirable under
applicable law to perfect the security interest hereby created. Landlord
and Tenant agree that this Lease and security agreement serve as a financing
statement and that a copy, photographic or other reproduction of this
portion of this Lease may be filed of record by Landlord and have the same
force and effect as the original. This security agreement and financing
statement also covers fixtures located at the Premises subject to this Lease
and legally described in Exhibit "A" attached hereto and incorporated herein
by reference and is to be filed for record in the real estate records.
(b) Notwithstanding Paragraph 41(a), Landlord agrees that it will
subordinate its security interest and Landlord's lien to the security
interest of Tenant's supplier or institutional financial source for so long
as the rental account of Tenant under this Lease is current (or brought
current) provided that Landlord approves the transaction as being reasonably
necessary for Tenant's operations at the Premises, and further provided that
the subordination must be limited to a specified transaction and specified
items of the fixtures, equipment or inventory involved in the transaction.
42. Exhibits. The following numbered exhibits are attached hereto and
incorporated herein and made a part of this Lease for all purposes:
Exhibit "A" - Legal Description
Exhibit "B" - Renewal Option
Exhibit "C" - VCP
Exhibit "D" - Title Exceptions
Addendum to Lease
43. Entire Agreement; Amendments. This Lease supersedes any and all
prior agreements with respect to the Premises between the parties and no
oral statements, representations or prior written matter will be binding.
Nothing contained in this Lease will give rise to duties or covenants on the
part of the Landlord, express or implied, other than the express duties and
covenants set forth herein. This Lease shall not be amended or added to in
any way except by written instruments executed by both parties or their
respective successors in interest.
44. Security Deposit. On the date this Lease is executed by Tenant,
Tenant shall deliver to Landlord the security deposit specified in the Basic
Lease Information to be held by Landlord as a security deposit (the
"Security Deposit") in accordance with the provisions of the Addendum To
Lease paragraph 2 attached hereto and incorporated by reference herein. The
Security Deposit shall be held by Landlord without liability for interest
and as security for the performance by Tenant of Tenant's covenants and
obligations under this Lease, it being expressly understood that the
Security Deposit shall not be considered an advance payment of rent or a
measure of Tenant's liability for damages in case of default by Tenant.
Landlord may, from time to time, without prejudice to any other remedy, use
the Security Deposit to the extent necessary to make good any arrearages of
rent or to satisfy any other covenant or obligation of Tenant hereunder.
Following any such application of the Security Deposit, Tenant shall pay to
Landlord on demand the amount so applied in order to restore the Security
Deposit to its original amount. If Tenant is not in default at the
termination of this Lease, the balance of the Security Deposit remaining
after any such application shall be returned by Landlord to Tenant. If
Landlord transfers its interest in the Premises during the term of this
Lease, Landlord may assign the Security Deposit to the transferee and upon
assumption by such transferee of liability for the Security Deposit,
Landlord shall have no further liability for the return of such Security
Deposit.
45. Force Majeure. Whenever a period of time is herein prescribed for
the taking of any action by Landlord or Tenant, the party responsible for
taking such action shall not be liable or responsible for, and there shall
be excluded from the computation of such period of time, any delays due to
strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions, or any other cause
whatsoever beyond the control of the party responsible for taking such
action; provided, however, the provisions of this Section 45 shall never be
construed as allowing an extension of time with respect to the payment of
money owing by one party hereunder to the other party hereunder.
46. Landlord's Representations, Warranties and Covenants:
Landlord represents and warrants that:
(a) Landlord has full right and lawful authority to enter into and
perform the Landlord's obligations under this Lease for the full term hereof
and has good and indefeasible title to the Premises in fee simple, free and
clear of all contracts, leases, tenancies, agreements, easements,
restrictions upon use or occupancy or other restrictions, violations,
mortgages and other liens, encumbrances or exceptions to title of any nature
whatsoever affecting the Premises, except for the matters specifically set
forth on Exhibit "D" hereto; and
(b) to Landlord's current actual knowledge, as of the date hereof
all HVAC and other mechanical systems for the Premises are in good working
order. In addition, Landlord shall warrant for a period of twelve (12)
months from the Commencement Date the condition of the now existing chiller
serving the Premises, and during such period agrees to repair or replace the
same at Landlord's sole cost and expense.
[The Signature Page Follows]
IN WITNESS WHEREOF, this Lease is executed by the parties on the day
and year first written above.
LANDLORD:
PLAZAMERICA, INC.,
a California corporation
By: _____________________________________
Name (printed): _________________________
Title: __________________________________
TENANT:
XXXXXXXXXX LABORATORIES, INC.,
a Texas corporation
By: _____________________________________
Name (printed): _________________________
Title: __________________________________
EXHIBIT "A"
DESCRIPTION OF LAND
Being all Lots in WALNUT HILL DISTRIBUTION CENTER-NORTH, SEVENTH
INSTALLMENT, an Addition to the City of Irving, Texas, according to the
Revised Map thereof recorded in Volume 81223, Page 1 of the Map Records of
Dallas County, Texas.
EXHIBIT "B"
RENEWAL OPTION
Provided that, at the time of Tenant's exercise of the Option (defined
below), this Lease is then in full force and effect and there is no uncured
event of default under this Lease, Tenant shall have the option ("Option")
to renew this Lease as follows:
Tenant may, by notifying Landlord of its election in writing not less
than six (6) months prior to the end of the Term (as the same may be
extended), renew this Lease for two separate, successive additional term(s)
(hereinafter "First Renewal Term" and "Second Renewal Term", respectively)
beginning on the date next following the expiration date of the Term or
First Renewal Term as applicable and continuing for sixty (60) months
thereafter. Such renewal shall include the Premises, as well as any other
space within the Building then being leased by Tenant as of the date of
termination of the Term. The renewal of this Lease will be upon the same
terms, covenants, and conditions applicable during the Term, as provided in
the Lease, except that (a) the Base Rental payable during the First Renewal
Term shall be an amount equal to the existing "market rental rate" (as
defined below) as of the date on which the First Renewal Term commences, (b)
the Base Rental payable during the Second Renewal Term shall be an amount
equal to the existing "market rental rate" as of the date on which the
Second Renewal Term commences, and (c) the defined term "Term" shall be
deemed to include the First Renewal Term, and if exercised, the Second
Renewal Term. As used herein, the phrase "market rental rate" shall mean
the then prevailing market rate for comparable space in the vicinity of the
Premises, taking into account the size of the Lease, the length of the
renewal term and the credit of Tenant, taking into consideration whether
tenant finish or brokerage commission will be payable. The failure of
Tenant to exercise the Option within the time period set forth herein shall
constitute a waiver and termination of such Option. In addition, any
termination of this Lease during the Term shall terminate the Option.
EXHIBIT "C"
VCP
[ LOGO ]
Xxxxxx X. Xxxxxx, Chairman
R.B. "Xxxxx" Xxxxxxx, Commissioner
Xxxx X. Xxxxx, Commissioner
Xxxxxxx X. Xxxxxx, Executive Director
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
Protecting Texas by Reducing and Preventing Pollution
August 23, 2000
Xx. Xxxx Xxxxxxx
Xxxxxx & Xxxxx, LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx XX 00000-0000
Re: Hitachi Semiconductor (America), Inc. Ul Site Located at 0000 Xxxxxx
Xxxx Xxxx, Xxxxxx, Xxxxxx Xxxxxx; Voluntary Cleanup Program (VCP)
No. 1106
Dear Xx. Xxxxxxx:
The Texas Natural Resource Conservation Commission (TNRCC) has reviewed
the reports entitled Affected Property Assessment Report (APAR) dated May
16, 2000 and the Response Action Completion Report (RACR) dated July 13,
2000 for the above referenced site. The information provided in the
reports demonstrate attainment of Texas Risk Reduction Remedy A, Tier 1
in accordance with 30 Texas Administrative Code (TAC) S350.32. Therefore,
the TNRCC agrees that no further action is necessary and issues the
enclosed Certificate of Completion (COC).
You may contact me with any questions or comments you have at (512) 239-
6226
Sincerely,
/S/
Xxxxxxx X. Xxxxxxx, Project Manager
Voluntary Cleanup Section
Remediation Division
KMF/ts
Enclosures
X.X. Xxx 00000 . Xxxxxx, Xxxxx 00000-0000 . 512/239-1000
Internet address: xxx.xxxxx.xxxxx.xx.xx
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
[LOGO]
VOLUNTARY CLEANUP PROGRAM
FINAL CERTIFICATE OF COMPLETION
As provided for in S361.609. Subchapter S, Solid Waste Disposal Act (SWDA),
Texas Health and Safety Code.
I, XXXXXXXXXX X. XXXXXX. P.E. DIRECTOR OF THE REMEDIATION DIVISION, TEXAS
NATURAL ESOURCE CONSERVATION COMMISSION, CERTIFY UNDER S361.609, SWDA. TEXAS
HEALTH AND ND SAFETY CODE, THAT NECESSARY RESPONSE ACTIONS HAVE BEEN
COMPLETED FOR VCP NO. 1106 AS OF AUGUST 16, 2000 FOR THE TRACT(S) OF LAND
DESCRIBED IN EXHIBIT "A" . BASED ON THE AFFIDAVIT OF COMPLETION OF RESPONSE
ACTION EXHIBIT "B" AND WHICH ARE FURTHER DESCRIBED IN THE APPROVED FINAL
REPORT FOR THE SITE AND DOES NOT REQUIRE MAINTENANCE OF ENGINEERING CONTROL,
REMEDIATION SYSTEMS, POST CLOSURE CARE OR NON-PERMANENT INSTITUTIONAL
CONTROLS AN APPLICANT WHO ON THE DATE OF APPLICATION SUBMITTAL WAS NOT A
RESPONSIBLE PARTY UNDER S361.271 OR S361.275(g), SWDA AND ALL PERSONS WHO
WERE NOT RESPONSIBLE PARTIES UNDER S361.271 OR S361.275(g), SWDA (eg.,
FUTURE OWNERS, FUTURE LESSEES, FUTURE OPERATORS AND LENDERS) ON THE DATE OF
ISSUANCE OF THIS CERTIFICATE ARE QUA LIFIED TO OBTAIN THE PROTECTION FROM
LIABILITY PROVIDED BY S361.610, SUBCHAPTER S, SWDA.
EXECUTED this 22nd day of August, 2000
/s/
------------------------------------
Xxxxxxxxxx X. Xxxxxx, P.E., Director
Remediation Division
STATE OF TEXAS
XXXXXX COUNTY
BEFORE ME, on this the 22nd day of August, personally appeared
Xxxxxxxxxx X. Xxxxxx, P.E., Director, Remediation Division, of the Texas
Natural Resource Conservation Commission, known to me to be the person and
agent of said commission whose name is subscribed to the foregoing
instrument, and she acknowledged to me that she executed the same for the
purposes and in the capacity therein expressed.
GIVEN UNDER MY HAND AND SEAL. OF OFFICE, this the 22nd day of August , 2000
/s/
-------------------------------------------
Notary Public in and for the State of Texas
[NOTARY STAMP]
EXHIBIT "A"
TEXAS NATURAL RESOURCE CONSERVATION COMMISSION
VOLUNTARY CLEANUP PROGRAM
LEGAL DESCRIPTION OF THE HITACHI U1 FACILITY - 0000 XXXXXX XXXX XXXX,
XXXXXX, XXXXXX XXXXXX TEXAS
VCP No. 1106
The Ul Site. 0000 Xxxxxx Xxxx Xxxx, Xxxxxx, Xxxxxx Xxxxxx, Xxxxx is a
6.4589 acre tract, located at 0000 Xxxxxx Xxxx Xxxxxx. Xxxxxx Xxxxxx.
Texas in the (Xxxxxxx Xxxxxxx Survey Abstract (No. 147) and the
(B.B.B. & C.R.R. Co. Survey). Abstract (No. 214), and being all of
Walnut Hill Distribution Center - North, Seventh Installment and
Addition to the City of Irving. recorded in Volume (No.81223) , Page
(No.I) of the Deed of Records Dallas County, Texas, said 6.4589 acre
property is more particularly described as follows:
( See the enclosed metes and bounds for a more detailed description)
EXHIBIT "B"
TEXAS NATURAL RESOURCE CONSERVATION COMISSION
VOLUNTARY CLEANUP PROGRAM
AFFIDAVIT OF COMPLETION OF RESPONSE ACTION
Hitachi Semiconductor (America), Inc. (the Applicant) has completed
response actions; if necessary pursuant to Chapter 361. Subchapter S,
SWDA, at the tract of land described in Exhibit "A" to this
certificate that pertains to Hitachi UI Facility (the Site), VCP No.
1106 located at 0000 Xxxxxx Xxxx Xxxx xx Xxxxxx, (Xxxxxx Xxxxxx),
Xxxxx. The Site was owned by NEC Partners A-1 LP at the time the
application to participate in the Voluntary Cleanup Program was filed.
The Applicant has submitted and received approval from the Texas
Natural Resource Conservation Commission Voluntary Cleanup Section on
all plans and reports required by the Voluntary Cleanup Agreement.
The plans and reports were prepared using a prudent degree of inquiry
of the Hitachi U1 Facility consistent with accepted industry standards
to identify all hazardous substances, waste and contaminated media of
regulatory concern. The response actions for the Hitachi U1 Facility
have achieved response action levels acceptable for Residential land
use as determined by the standards of the TNRCC. The response action
eliminated substantial present or future risk to public health and
safety and to the environment from releases and threatened releases of
hazardous substances and/or contaminants at or from the Hitachi U1
Facility. The Applicant has not acquired this certificate of
completion by fraud, misrepresentation, or knowing failure to disclose
material information. Further information concerning the response
action at this Site may be found in the final report at the central
office of the TNRCC under VCP No. 1106.
The preceding is true and correct to the best of my knowledge and
belief
By:/s/ 8/9/00
-------------------------------------
Print Name Yuji Ogasaward/Senior
Vice President & Secretary
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of Santa Xxxxx
On August 8, 2000 before me, Xxxxx X. Iwameto Notary Public
personally appeared Yuji Ogasaward
[ ] personally known to me
[ X ] proved to me on the basis of
satisfactory evidence
to be the person whose name is subscribed
to the within instrument and acknowledged
to me that he executed the same in his
authorized capacity, and that by his
signature on the instrument the person, or
the entity upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
[ NOTARY SEAL ]
/s/
---------------------------
Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable
to persons relying on the document and could prevent fraudulent removal and
reattachment of this form, to another document.
Description of Attached Document
Title or Type of Document: Affidavit of Completion of Response Action
------------------------------------------
Document Date: August 9, 2000 Number of Pages: one, single sided
-------------- -------------------
Signer(s) Other Than Named Above: None
----------------------------------
Capacity Claimed by Signer
Signers Name Yuji Ogasaward
-------------------
[ ] Individual
[ X ] Corporate Officer - Title(s): Sr. VP & Secretary
[ ] Partner [ ] Limited [ ] General
[ ] Attorney in Fact
[ ] Trustee
[ ] Guardian or Conservator
[ ] Other:
Signer Is Representing Hitachi Semiconductor (America) Inc.
PROPERTY DESCRIPTION
BEING a 6.4589 acre tract of land situated in the Xxxxxxx Xxxxxxx Survey,
Abstract No. 147 and the B.B.B, & C.R.R. Co. Survey, Abstract No. 214,
and being all of Walnut Hill Distribution Center - North, Seventh
Installment, and Addition to the City of Irving according to the plat
thereof recorded in Volume 81223, Page, 1, Map Records, Dallas County
Texas, and being more particularly described as follows:
BEGINNING at a 5/8" iron rod found for corner in the west line of Walnut
Hill Lane (110' R.O.W.) said corner being a the intersection of said west
line with the south line of Westridge Drive (60' ROW.), said corner also
being at the beginning of a curve to the left having a central angle of
13 54'04", a radius of 1091.62 feet, a tangent distance of 133.08 feet
and a chord distance and bearing of S 15 35'29' E. 264.20 feet;
THENCE with the said west line of Walnut Will Lane and along said curve
to the left, an arc distance of 264.85 feet to a 5/8" iron rod set for
corner, said corner also being the northeast corner of the NEC America
Addition, an Addition to the City of Irving, as recorded in Volume 00000,
Xxxx 0000, Xxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx;
THENCE S 79 01'41" W, departing said west line and along the north line
of said Addition, a distance of 689.71 feet to a 5/8" iron rod set for
corner at the northwest corner of said Addition and in the northeast line
of the Dallas-Ft.Worth Regional Airport;
THENCE N 44 46'10" W, along said northeast line, a distance of 22.50 feet
to a 5/8 iron rod set for corner;
THENCE N 44 46'14" W, continuing along said northeast line, a distance of
388.12 feet to a 5/8' iron rod set for corner, said corner also being the
southeast corner of lots 1, 2, and 0, Xxxxxxxxxx Xxxxxxxxxxx, Xxxxxx Xxxx
Business Park, Xxxxxx XXX, Xxxxx 0, an Addition to the City of Irving as
recorded in Volume 00000, Xxxx 000, Xxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx;
THENCE N 45 13'46" E, along the southeast line of said Addition, a
distance of 302.89 feet to a 5/8' iron rod found for corner in the
aforementioned south line of Westridge Drive, said corner also being at
the beginning of a curve to the left having a central angle of 46 45'17",
a radius of 641.32 feet, a tangent distance of 277.22 feet and a chord
bearing and distance of S 73 41'44" E, 508.93 feet;
THENCE with said south line of Westridge Drive and along said curve to
the left, an arc distance of 523.33 feet to a 5/8" iron rod found for
corner;
THENCE N 82 55'37" E, continuing along said south line, a distance of
193.25 feet to the POINT OF BEGINNING and containing 281,349 square feet
or 6.4589 acres of land, more or less.
A-101828. 1
PROPERTY DESCRIPTION
Hitachi Semiconductor (America) Inc. U-1 Site
VCP Number 1106
[ PROPERTY SURVEY APPEARS HERE ]
EXHIBIT "D"
TITLE EXCEPTIONS
1. Restrictive covenants filed in Volume 73166, Page 1001; Volume 76229,
Page 2437; Volume 77154, Page 1096, Volume 79122, Page 749; and in
Volume 82071, Page 3241 of the Deed Records of Dallas County, Texas.
2. The following, all according to plat recorded in Volume 81223, Page 1,
of the Map Records of Dallas County, Texas:
a. Building setback line fifty (50) feet in width along the East
property line.
b. Building setback line thirty (30) feet in width along the North
property line.
c. Utility easement fifteen (15) feet in width along the North, East
and Southwest property line.
d. Utility easement five (5) feet in width along the Southeast
property line.
e. Drainage and utility easement seven and one-half (7.5) feet in
width along the Northwest property line.
1. Annual maintenance charge and/or current assessments as set out in
instrument dated August 22, 1973, and recorded in Volume 73166, Page
1001 of the Deed Records of Dallas County, Texas.
2. Avigation Release in favor of the City of Irving as reflected on the
plat.
3. Dallas-Fort Worth Regional Airport Ordinance No. 71-100, recorded in
Volume 82173, Page 000, Xxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
