1
EXHIBIT 10.12
STANDARD FORM OF INDUSTRIAL LEASE
(SEMI-GROSS)
TABLE OF CONTENTS
PAGE
----
ARTICLE I. DEFINITIONS...............................................1
1.1 Address of Landlord ....................................... 1
1.2 Address of Tenant ......................................... 1
1.3 Base Rent ................................................. 1
1.4 Base Year ................................................. 1
1.5 Building/s ................................................ 1
1.6 Center .................................................... 1
1.7 Common Area ............................................... 1
1.8 Lease Term ................................................ 1
1.9 Permitted Use of the Premises ............................. 1
1.10 Premises .................................................. 1
1.11 Rent ...................................................... 1
1.12 Additional Rent ........................................... 2
1.13 Security Deposit .......................................... 2
1.14 Tenant's Allocated Share .................................. 2
1.15 Tenant's Proportionate Share............................... 2
1.16 Tenant's Prorata Share .................................... 2
ARTICLE II. THE DEMISED PREMISES ................................... 2
2.1 Lease of the Premises ..................................... 2
2.2 Use of Common Area ........................................ 2
2.3 Quiet Enjoyment ........................................... 2
2.4 Reservations by Landlord .................................. 2
ARTICLE III. TERM OF THE LEASE ..................................... 3
3.1 Term ...................................................... 3
3.2 Tender of Possession ...................................... 3
3.3 Holding Over .............................................. 3
ARTICLE IV. RENT ................................................... 3
4.1 Base Rent ................................................. 3
4.2 Additional Rent ........................................... 4
4.2(a) Utilities and Services ..................... 4
4.2(b) Insurance .................................. 5
4.2(c) Real Estate Taxes .......................... 5
4.2(d) HVAC Maintenance ........................... 5
4.2(e) Common Area Expenses ....................... 6
4.2(f) Rent on Sales Taxes ........................ 6
4.3 Late Payment .............................................. 7
2
4.4 Security Deposit .......................................... 7
ARTICLE V. LANDLORD'S RIGHTS AND OBLIGATIONS ....................... 7
5.1 Maintenance by Landlord ................................... 7
5.2 Mortgage and Transfer: Estoppel Certificates .............. 7
5.3 Landlord's Inability to Perform ........................... 8
5.4 Rights of Landlord ........................................ 8
5.4(a) Name of Center ............................. 9
5.4(b) Redecorate ................................. 9
5.4(c) Re-Lease ................................... 9
5.4(d) Vehicles ................................... 9
5.4(e) Preservation of Center ..................... 9
ARTICLE VI. TENANT'S RIGHTS AND OBLIGATIONS ........................ 9
6.1 Acceptance of Premises .................................... 9
6.2 Alterations and Additions ................................. 9
6.3 Assignment and Subletting ................................ 10
6.4 Locks .................................................... 10
6.5 Maintenance by Tenant .................................... 10
6.6 Mechanic's Liens ......................................... 11
6.7 Redelivery of Premises ................................... 11
6.8 Signs and Advertisements ................................. 11
6.9 Use of Common Areas ...................................... 11
6.10 Use of Premises .......................................... 11
6.11 Hazardous Substances ..................................... 11
ARTICLE VII. INSURANCE ............................................ 12
7.1 Liability Insurance ...................................... 12
7.2 Fire and Extended Coverage Insurance ..................... 12
7.3 Indemnification of Landlord .............................. 12
ARTICLE VIII. EMINENT DOMAIN AND DAMAGE OR DESTRUCTION ............ 13
8.1 Eminent Domain ........................................... 13
8.2 Damage or Destruction .................................... 13
ARTICLE IX. DEFAULT AND REMEDIES .................................. 14
9.1 Events of Default ........................................ 14
9.1(a) Nonpayment ................................ 14
9.1(b) Noncompliance ............................. 14
9.1(c) Insolvency or Transfer .................... 15
9.1(d) Bankruptcy ................................ 15
9.1(e) Receiver .................................. 15
9.1(f) Abandonment ............................... 15
9.2 Remedies ................................................. 15
9.2(a) Repossession and Sale ..................... 15
9.2(b) Releasing ................................. 15
3
9.2(c) Cancellation ............................... 15
9.2(d) Anticipatory Breach ........................ 16
9.2(e) Attorney's Fees ............................ 16
9.3 Remedies Cumulative ...................................... 16
9.4 No Waiver ................................................ 16
ARTICLE X. MISCELLANEOUS ........................................... 16
10.1 Bankruptcy or Assignment to Trustee ...................... 16
10.2 Brokers .................................................. 16
10.3 Captions ................................................. 17
10.4 Certificates of Occupancy ................................ 17
10.5 Entire Agreement ......................................... 17
10.6 Joint and Several Liability of Multiple Tenants .......... 17
10.7 Notices .................................................. 17
10.8 Partial Invalidity ....................................... 17
10.9 Recording ................................................ 17
10.10 Successors ............................................... 17
10.11 Use of the Singular; Gender .............................. 18
10.12 Rider .................................................... 18
EXHIBIT A. RULES AND REGULATIONS
EXHIBIT B . THE CENTER AND PREMISES
EXHIBIT C. LANDLORD'S IMPROVEMENTS TO PREMIES (if any)
4
GA Property No. 17717
IP-524
STANDARD FORM OF INDUSTRIAL LEASE
(SEMI-GROSS)
THIS LEASE, made this 21st day of September, 1995, by and between
GENERAL AMERICAN LIFE INSURANCE COMPANY, a Missouri corporation (hereinafter
"Landlord"), and MKS INSTRUMENTS, INC. (hereinafter "Tenant").
ARTICLE I. DEFINITIONS.
1.1 Address of Landlord: One Lincoln Centre, Suite 567, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
1.2 Address of Tenant: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
1.3 Base Rent: See Paragraph No. 1 of Lease Rider Number One.
1.4 Base Year: *See Paragraph 2 of Lease Rider Number One.
1.5 Building/s: The Building/s in which the Premises is located. The specific
Building in which the Premises is located contains 54,301 square feet. The total
square footage of all the Buildings in the Center is 124,187 square feet.
1.6 Center: The land, improvements and appurtenances depicted on Exhibit B
attached hereto and commonly referred to as: ARAPAHO GROVE BUSINESS PARK and
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
1.7 Common Area: The term "Common Area" means all the areas of the Center
designed for the common use and benefit of the Landlord and all of the tenants,
their employees, agents, customers and invitees. The Common Area includes, but
not by way of limitation, parking lots, truck courts, landscaped and vacant
areas, driveways, rail spurs, walks and curbs and facilities appurtenant to each
as such areas may exist from time to time.
1.8 Lease Term: The lease term shall commence on September 1, 1995 and run for
three (3) years, and 0 months, expiring on August 31, 1998.
1.9 Permitted Use of the Premises: light electronic assembly and associated
activities.
1.10 Premises: 14,627 square feet of space in the Center located as outlined on
Exhibit B attached hereto, and addressed as: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
5
1.11 Rent: All sums, monies or payments required to be paid by Tenant to
Landlord pursuant to this Lease, including Base Rent and Additional Rent.
1.12 Additional Rent: All sums, monies or payments required to be paid by Tenant
to landlord pursuant to this Lease other than Base Rent.
1.13 Security Deposit: $3,117.00
1.14 Tenant's Allocated Share: The percentage figure determined by dividing the
number of square feet in the Premises by the number of square feet in the
Building that is then leased to Tenant and to other tenants.
1.15 Tenant's Proportionate Share: The percentage figure determined by dividing
the number of square feet in the Premises by the total number of square feet in
all the buildings (this paragraph is applicable when the Center contains more
than one Building), which percentage figure is: 11.78%.
1.16 Tenant's Prorata Share: The percentage figure determined by dividing the
number of square feet in the Premises by the number of square feet in the
specific Building in which the Premises is located, which percentage figure is:
26.94%.
ARTICLE II. THE DEMISED PREMISES.
2.1 Lease of the Premises. In consideration of the Rents, covenants, agreements
and conditions hereinafter provided to be paid, kept, performed and observed,
the Landlord leases to the Tenant and the Tenant hereby hires from the Landlord
the Premises, upon all the terms and conditions set forth in this Lease.
2.2 Use of Common Area. Landlord grants the Tenant the nonexclusive revocable
use of the Common Area by tenant, Tenant's employees, agents, customers and
invitees, under all the terms and conditions hereof, which use shall be subject
at all times to such reasonable, uniform and non-discriminatory rules and
regulations as may from time to time be established.
2.3 Quiet Enjoyment. Landlord covenants that the Tenant, on paying the Rent
herein provided and keeping, performing and observing the covenants, agreements
and conditions herein required of the Tenant, shall peaceably and quietly hold
and enjoy the Premises for the Lease Term, subject, however, to the terms and
conditions of this Lease.
2.4 Reservations by Landlord. Landlord excepts and reserves from the Premises
the roof and exterior walls of the Building/s, and further reserves the right to
place, install, maintain, carry through, repair and replace such utility lines,
air ducts, pipes, wires, appliances, tunneling and the like in, over, through
and upon the Premises as may be reasonably necessary or advisable for the
servicing of the Premises or any other
2
6
portions of the Center. Landlord further reserves the right, at any time, and
from time to time to: (i) make alterations, changes and additions to the
Building/s and other improvements in the Center; (ii) add additional areas to
the Center and/or to exclude areas therefrom; (iii) construct additional
buildings and other improvements in the Center; (iv) remove or relocate the
whole or any part of any building or other improvement in the Center; and (v)
relocate any other tenant in the Center. It is further understood that the
existing layout of the buildings, walks, roadways, parking areas, entrances,
exits, and other improvements shall not be deemed to be a warranty,
representation or agreement on the part of the Landlord that the Center will
remain exactly as presently built, it being understood and agreed that Landlord
may change the number, dimensions and locations of the walks, buildings and
parking spaces as Landlord shall deem proper.
ARTICLE III. TERM OF THE LEASE.
3.1 Term. Tenant shall have and hold the Premises for and during the Lease Term
subject to the payment of the Rent and the full and timely performance by Tenant
of all the covenants and conditions set forth in this Lease.
3.2 Tender of Possession. Landlord shall use its best efforts to tender
possession of the Premises to Tenant at the commencement of the Lease Term.
Landlord shall not be subject to any liability for any failure to tender
possession of the Premises to Tenant, provided that such failure occurred as a
consequence of any circumstance or cause beyond Landlord's reasonable control,
including but not limited to any Act of God or the failure of a prior tenant to
vacate all or any portion of the Premises.
3.3 Holding Over. In the event of a holding over by Tenant or any of its
successors in interest after expiration or termination of this Lease without the
consent in writing of the Landlord, Tenant shall be deemed a Tenant at
sufferance and shall pay as liquidated damages, double Rent for the entire
holdover period and all attorney's fees and expenses incurred by Landlord in
enforcing its rights hereunder. Any holding over with the consent of Landlord
shall constitute Tenant a month-to-month tenant upon and subject to all the
terms, covenants and conditions of this Lease. *See paragraph 3 of Lease Rider
Number One.
ARTICLE IV. RENT.
4.1 Base Rent. Tenant covenants to pay without notice, deduction, set-off or
abatement to Landlord the Base Rent in lawful money of the United States in
equal consecutive monthly installments in advance on the first day of each month
during the Lease Term. Base Rent for any partial month shall be prorated on a
per diem basis. Base Rent shall be payable to Landlord at Landlord's Address or
such other place as Landlord may designate from time to time in writing. Tenant
shall pay the first full month's Base Rent upon execution of this Lease.
3
7
4.2 Additional Rent. Tenant covenants to pay without notice, deduction, set-off
or abatement to Landlord the Additional Rent in lawful money of the United
States in equal consecutive monthly installments in advance on the first day of
each month during the Lease Term. Additional Rent for any partial month shall be
prorated on a per diem basis. Additional Rent shall be payable to Landlord at
Landlord's Address or such other place as Landlord may designate in writing. In
order to provide for current payments of Additional Rent, Tenant agrees to pay
an amount of Additional Rent reasonably estimated by Landlord from time to time
commencing on the first day of the month following the month in which Landlord
notifies Tenant of the amount of such Additional Rent. If, as finally
determined, the amount of Additional Rent owing by Tenant shall be greater than
or less than the aggregate of all installments so paid to Landlord for each
calendar year, the Tenant shall pay to Landlord the amount of such underpayment,
or Landlord shall credit Tenant for the amount of such overpayment, as the case
may be. It is the intention hereunder to estimate the amount of Additional Rent
for each calendar year and then to adjust such estimate in the following year
based on the actual amount of Additional Rent owing. The obligation of Tenant
with respect to the payment of Additional Rent shall survive the termination of
this Lease. Any payment, refund or credit made pursuant to this paragraph shall
be made without prejudice to any right of Tenant to dispute the amount of
Additional Rent owing, or the right of Landlord to correct any items as billed
pursuant to the provisions hereof. Within 30 days of the date Landlord notifies
Tenant of the amount of Additional Rent owing, Tenant or its authorized agent
shall have the right to inspect the books of Landlord during the business hours
of Landlord at such location that Landlord may specify, for the purpose of
verifying such amount. Unless Tenant asserts specific errors within such 30
days, such notification by Landlord shall be deemed to be correct. No decrease
in Additional Rent shall reduce Tenant's liability hereunder below the amount of
Base Rent payable hereunder.
4.2(a) Utilities and Services. Landlord shall not be liable for any
interruption or failure whatsoever in utility services. Tenant shall
contract in its own name and pay for all charges for electricity, gas,
fuel, telephone, and any other services or utilities used in, servicing or
assessed against the Premises, unless otherwise herein expressly provided.
Additionally, and if the Building is master metered for water, sewer and
exterior lighting, Tenant agrees to pay to Landlord as Additional Rent
Tenant's Prorata Share of the cost of such utilities for the Building.
Additionally, and as containerized rubbish collection bins will be provided
to the Building, Tenant agrees to pay to Landlord as Additional Rent,
Tenant's Allocated Share of the service cost of such bins (unless Landlord,
exercising reasonable discretion, should determine that Tenant's actual use
thereof is greater than such Tenant's Allocated Share therefore, in which
case an equitable adjustment shall be made). Landlord may, however, require
Tenant to contract for his own rubbish collection, in the event Tenant's
needs for such containers
4
8
constitute excessive demand on common containers. In such event, Tenant shall
contract with the same provider as the Center's common bins.
4.2(b) Insurance. Tenant shall pay to Landlord as Additional Rent Tenant's
Prorata Share (or, Tenant's Proportionate Share in the event there is more than
one Building in the Center) of any increase in the cost of the premium for the
fire and extended coverage insurance that Landlord maintains hereunder over the
premium paid by Landlord for the Base Year. Tenant shall pay any increase in the
cost of fire and extended coverage insurance caused by Tenant's use or
activities on or about the Premises.
4.2(c) Real Estate Taxes. Tenant shall pay to Landlord as Additional Rent
Tenant's Prorata Share (or, Tenant's Proportionate Share in the event there is
more than one Building in the Center) of any increases in Landlord's Real Estate
Taxes over Real Estate Taxes for the Base Year levied against the Center. "Real
Estate Taxes" shall mean: (a) all ad valorem Real Estate Taxes on the Center
(adjusted after protest or litigation, if any) for any part of the term of this
Lease, exclusive of penalties; (b) any taxes which shall be levied in lieu of
any such ad valorem Real Estate Taxes; (c) any special assessments for benefits
on or to the Center paid in annual installments by Landlord; (d) occupational
taxes or excise taxes levied on rentals derived from the operation of the
property or the privilege of leasing property; (e) any private subdivision
assessment made against the Center; and (f) the expense of protesting,
negotiating or contesting the amount or validity of any such taxes, charges or
assessments, such expense to be applicable to the period of the item contested,
protested or negotiated.
If the Lease Term shall end during a tax year ("tax year" shall mean the annual
period for which Real Estate Taxes are assessed and levied) of which only part
is included in the Lease Term, the amount of such Additional Rent shall be
prorated on a per diem basis and shall be paid on or before the last day of the
Lease Term. If the Lease Term ends in any tax year before the amount to be
payable by Tenant has been determined under the provisions of this Section, an
amount payable for the portion of the Lease Term during the tax year shall be
reasonably estimated by Landlord and the estimated amount shall be promptly paid
by Tenant. As soon as the amount properly payable by Tenant for the partial
period has finally been determined, the amount shall be adjusted between
Landlord and Tenant. Tenant shall be liable for all taxes levied against
personal property and trade fixtures placed by Tenant in the Premises.
4.2(d) HVAC Maintenance. Tenant shall pay to Landlord as Additional Rent
Tenant's Allocated Share of Landlord's cost and expense of the maintenance
service agreements to the heating, ventilating and air conditioning equipment
and controls servicing the Premises. Tenant shall pay all expenses incurred to
5
9
repair the heating, ventilating and air conditioning equipment servicing the
Premises. *See Paragraph 4 of Lease Rider Number One.
4.2(e) Common Area Expenses. Tenant will pay to Landlord as Additional Rent
Tenant's Prorata Share (or, Tenant's Proportionate Share in the event there is
more than one Building in the Center) of the Common Area Operating Cost. *See
Paragraph 5 of Lease Rider Number One.
"Common Area Operating Cost" means the Landlord's total cost and expense
incurred in owning, operating, maintaining and repairing the Common Area,
including but without limitation by enumeration, costs for all electricity, gas,
water, sewer or fuel used in connection with the operation, maintenance and
repair of the Common Area; the amount paid for all electricity furnished to the
Common Area to light the parking lots or for any other purpose; the amount paid
for all labor and/or wages and other payments including costs to Landlord of
workmen's compensation and disability insurance, payroll taxes, welfare and
fringe benefits made to janitors, employees, contractors and subcontractors of
the Landlord involved in the operation and maintenance or the Common Area;
managerial, administrative and telephone expenses related to operation and
maintenance of the Common Area; the total charges of any independent contractors
employed in the care, operation, repair, maintenance, cleaning, snow removal,
salting and landscaping of the Common Area; the amount paid for all supplies,
tools, replacement parts of components, equipment and necessities which are
occasioned by everyday wear and tear of the Common Area; the amount paid for
premiums for all insurance required from time to time by Landlord or Landlord's
mortgagees; the costs of machinery and equipment purchased or leased by Landlord
to perform its Common Area maintenance obligations; and property management fees
not to exceed five percent (5%) of the gross income of the Center. To the extent
that Landlord elects to provide services which are not separately metered or
directly billed to the tenant, such as water, sewer and trash hauling, the costs
of such services shall be included in Common Area Operating Cost. Common Area
Operating Cost shall not, however, include interest on debt, capital retirement
of debt, depreciation, costs properly chargeable to the capital account, except
for capital expenditures which reduce other operating expenses or such capital
expenditures that are required by changes in any governmental law or regulation
in which case such expenditures, plus interest on the unamortized principal
investment at ten (10%) percent per annum, shall be amortized over the life of
the improvements, and such costs shall be directly chargeable by the Landlord to
Tenant in the Tenant's Prorata Share (or, Tenant's Proportionate Share in the
event there is more than one Building in the Center).
4.2(f) Rent on Sales Taxes. Tenant shall pay to Landlord as Additional Rent any
Sales or Rent Taxes, however named or designated, levied on any form of Rent or
Additional Rent.
6
10
4.3 Late Payment. Tenant's failure to make any rental payment or other payment
required of Tenant hereunder within three (3) days of the due date therefor
shall automatically result in the imposition of a service charge for such late
payment in the amount of ten (10%) percent of such payment, without notice. *See
Paragraph 6 of Lease Rider Number One.
4.4 Security Deposit. Tenant herewith deposits with Landlord the Security
Deposit as security for the performance by Tenant of every covenant and
condition of this Lease. Said Security Deposit may be mingled with other funds
of Landlord and shall bear no interest. If Tenant shall default with respect to
any covenant or condition of this Lease, Landlord may apply the whole or any
part of such Security Deposit to the payment of any sum in default, including
Rent and Additional Rent, or any sum which Landlord may be required to spend by
reason of Tenant's default. This includes, but is not limited to, applying the
Security Deposit first to any restoration, relamping, repairs and/or cleanup
costs necessary over and above normal wear and tear of the vacated space. Should
Landlord so apply the Security Deposit or any portion thereof during the Lease
Term, Tenant shall promptly reimburse Landlord for same. It is understood that
the Security Deposit is not to be considered as the last month's rent. Should
Tenant comply with all of the covenants and conditions of this Lease, the
Security Deposit or any balance thereof shall be returned to Tenant within 30
days of the expiration of the Lease Term.
ARTICLE V. LANDLORD'S RIGHTS AND OBLIGATIONS.
5.1 Maintenance by Landlord. During the Lease Term, Landlord shall operate and
maintain the Common Area and shall keep and maintain the roof, exterior walls
(excluding doors, glass or plate glass), gutters and downspouts of the
Building/s in good condition and repair. Landlord shall be under no obligation
and shall not be liable for any failure to make repairs that are Landlord's
responsibility herein until and unless Tenant notifies Landlord in writing of
the necessity therefor, in which event Landlord shall have a reasonable time
thereafter to make such repairs. Landlord reserves the right to the exclusive
use of the roof and exterior walls of the Building/s which Landlord is so
obligated to maintain and repair. Landlord shall enter into a service contract
on the Building for the heating, ventilation and air conditioning equipment for
periodic inspection and service of such equipment, and Tenant shall reimburse
Landlord pursuant to the provisions hereof. If any portion of the Center which
Landlord is obligated to maintain or repair is damaged by the negligence of
Tenant, its agents, employees or invitees, then repairs necessitated by such
damage shall be paid for by Tenant. *See Paragraph 7 of Lease Rider Number One.
5.2 Mortgage and Transfer: Estoppel Certificates. Landlord shall have the right
to transfer, mortgage, pledge or otherwise encumber, assign and convey, in whole
or in part, the Center, the Building/s, this Lease, and all or any part of the
rights now or
7
11
thereafter existing therein and all Rents and amounts payable to Landlord under
the provisions hereof. In the event of any such transfer or transfers, Landlord
herein named (and in case of any subsequent transfer, the then transferor) shall
be automatically freed and relieved from and after the date of such transfer of
all personal liability as respects the performance of any covenants or
agreements on the part of Landlord contained in this Lease thereafter to be
performed. Nothing herein contained shall limit or restrict any such rights, and
the rights of the Tenant under this Lease shall be subject and subordinate to
all instruments executed and to be executed in connection with the exercise of
any such rights, including, but not limited to, the lien of any mortgage, deed
of trust, or security agreement now or hereafter placed upon Landlord's interest
in the Premises. This paragraph shall be self-operative. However, Tenant
covenants and agrees to execute and deliver upon demand such further instruments
subordinating this Lease to the lien, of any such mortgage, deed of trust or
security agreement as shall be requested by Landlord and/or mortgagee or
proposed mortgagee or holder of any security agreement and hereby irrevocably
appoints Landlord as its agent and attorney-in-fact to execute and deliver any
such instrument for and in the name of Tenant. Tenant shall, within ten (10)
days after written request of Landlord, execute, acknowledge, and deliver to
Landlord or to Landlord's mortgagee, proposed mortgagee, Land Lessor or proposed
purchaser of the Center or any part thereof, any estoppel certificates requested
by Landlord from time to time, which estoppel certificates shall show whether
the lease is in full force and effect and whether any changes may have been made
to the original lease; whether the term of the lease has commenced and full
rental is accruing; whether there are any defaults by Landlord and, if so, the
nature of such defaults; whether possession has been assumed and all
improvements to be provided by Landlord have been completed; and whether rent
has been paid more than thirty (30) days in advance and that there are no liens,
charges, or offsets against rental due or to become due and that the address
shown on such estoppel is accurate.
5.3 Landlord's Inability to Perform. If, by reason of: inability to obtain and
utilize labor, materials or supplies; circumstances directly or indirectly the
results of a state of war or national or local emergency; any laws, rules,
orders, regulations or requirements of any governmental authority now or
hereafter in force; strikes or riots; accident in, damage to or the making of
repairs, replacements, or improvements to, the Premises or any of the equipment
thereof; or by reason of any other cause beyond the reasonable control of the
Landlord including "Acts of God," Landlord shall be unable to perform or shall
be delayed in the performance of any covenant to supply any service, such
nonperformance or delay in performance shall not render Landlord liable in any
respect for damages to either person or property, constitute a total or partial
eviction, constructive or otherwise, work an abatement of rent or relieve Tenant
from the fulfillment of any covenant or agreement contained in this Lease.
5.4 Rights of Landlord. Landlord may enter upon the Premises for the purpose of
exercising any or all of the rights hereby reserved without being deemed guilty
of an
8
12
eviction or disturbance of Tenant's use or possession and without being liable
in any manner to Tenant. The reservation of these rights by Landlord shall not
render Landlord liable for not performing any of the matters specified herein.
5.4(a) Name of Center. To change the name of the Building/s or the Center
without notice or liability of the Landlord to Tenant;
5.4(b) Redecorate. During the last ninety (90) days of the Lease Term or any
renewal or extension thereof, if during or prior to that time the Tenant has
vacated the Premises, to decorate, remodel, repair, alter or otherwise prepare
the Premises for reoccupancy; *See Paragraph 8 of Lease Rider Number One.
5.4(c) Re-Lease. To exhibit the Premises to others and to display "For Lease"
signs on the Premises during the last one hundred eighty (180) days of the Lease
Term or any renewal or extension thereof;
5.4(d) Vehicles. To remove abandoned or unlicensed vehicles and vehicles that
are unreasonably interfering with the use of the parking lot by others, and to
charge the responsible tenant for the expense of removing said vehicles;
5.4(e) Preservation of Center. To take any and all measures, including making
inspection, repairs, alterations, additions and improvements to the Premises or
to the Center as may be necessary or desirable for the safety, protection or
preservation of the Premises or the Center or the Landlord's interests, or as
may be necessary or desirable in the operation of the Premises or the Center.
ARTICLE VI. TENANT'S RIGHTS AND OBLIGATIONS.
6.1 Acceptance of Premises. Landlord will complete the Premises in accordance
with Exhibit C, if attached hereto. Tenant acknowledges that it will examine the
Premises before taking possession hereunder. Unless Tenant furnishes Landlord
with a notice in writing specifying any defect in the construction or condition
of the Premises within ten (10) days after taking possession, such taking of
possession shall be conclusive evidence as against Tenant that at the time
thereof the Premises were in good order and satisfactory condition.
6.2 Alterations and Additions. Tenant shall not make any alterations,
improvements, or additions to the Premises without the prior written consent and
approval of plans therefor by Landlord. Alterations, improvements or additions
made by either of the parties upon the Premises, except moveable furniture and
equipment placed in the Premises at the expense of Tenant, shall be the property
of Landlord and shall remain upon and be surrendered with the Premises as a part
thereof at the termination of this Lease, without disturbance, molestation,
injury or damage unless Landlord elects to require Tenant to remove such
alterations or improvements from the Premises at the
9
13
expiration of this Lease. In the event damage shall be caused by moving said
furniture and equipment in or out of the Premises, said damage shall be repaired
at the cost of Tenant. *See Paragraph 9 of Lease Rider Number One.
6.3 Assignment and Subletting. Tenant shall not assign or hypothecate this Lease
or sublet all or any part of the Premises without the prior written consent of
Landlord. If Tenant wishes to assign or sublet the Premises, it shall give
notice in writing (by certified mail or by personal delivery) of such intention
to Landlord and, thereupon, Landlord shall, within thirty (30) days of receipt
of such notice, have the right to unilaterally terminate this Lease or to
approve said subletting by written notice to Tenant. If no notice is given by
Landlord, Landlord will be deemed to have elected to approve the assignment or
subletting. If the assignment or subletting is approved and rents under the
sublease are greater than the rents provided for herein, then Landlord shall
have the further option either (a) to convert the sublease into a prime Lease
and receive all of the rents, in which case Tenant will be relieved of further
liability hereunder and under the proposed sublease, or (b) to require Tenant to
remain liable under this Lease, in which event Tenant shall be entitled to
retain such excess rents. If the assignment or subletting is approved and rents
under the sublease are less than the rents provided for herein, Tenant shall
remain liable under all the covenants and conditions of this Lease. Landlord may
withhold its consent to any proposed assignee or subtenant which in Landlord's
judgment (a) would conflict with the tenancy, use or business of any other
tenant or the tenant mix of the Center, (b) has a net worth and/or credit
history inferior to that of Tenant, or (c) is currently a tenant or negotiating
for space in the Center.
6.4 Locks. No additional locks or similar devices shall be attached to any door
or window without Landlord's prior written consent. No keys for any door other
than those provided by the Landlord shall be made. If more than two keys for one
lock are desired, the Landlord will provide the same upon payment by the Tenant.
All keys must be returned to the Landlord at the expiration or termination of
the lease. *See Paragraph 10 of Lease Rider Number One.
6.5 Maintenance by Tenant. Tenant shall be responsible for all maintenance and
repair to the Premises of whatsoever kind or nature that is not herein set forth
specifically as the obligation of Landlord. Tenant shall take good care of the
Premises and fixtures, and keep them in good repair free from filth,
overloading, danger of fire or any pest or nuisance, repair any damage or
breakage done by Tenant or Tenant's agents, employees or invitees, including
damage done to the Building/s by Tenant's equipment or installations. Tenant
shall be responsible for the repair and replacement of all glass and plate glass
on the Premises. In the event Tenant fails to maintain the Premises as provided
for herein Landlord shall have the right, but not the obligation, to perform
such maintenance as is required of Tenant in which event Tenant shall reimburse
Landlord for its costs in providing such maintenance or repairs together with a
ten (10%) percent charge for Landlord's overhead and Tenant shall promptly
reimburse Landlord for the amount so billed to Tenant by Landlord.
10
14
6.6 Mechanic's Liens. Tenant will not permit any mechanic's liens, or other
liens, to be placed upon the Premises, the Building/s or the Center during the
Lease Term or any extension or renewal thereof, and in case of the filing of any
such lien, Tenant will promptly pay same. Tenant agrees to pay all legal fees
that might be incurred by Landlord because of any mechanic's liens being placed
upon the Premises, as a result of Tenant's actions.
6.7 Redelivery of Premises. No later than the last day of the Lease Term, Tenant
will remove all Tenant's personal property and repair all injury done by or in
connection with installation or removal of such property and surrender the
Premises broom clean (together with all keys to the Premises) in as good a
condition as they were in at the beginning of the Lease Term, reasonable wear
and tear excepted.
6.8 Signs and Advertisements. Tenant shall not put upon nor permit to be put
upon any part or the Premises, the Building/s or the Center, any signs,
billboards or advertisements whatever in any location or any form without the
prior written consent of Landlord. A charge of $50.00 per day per sign,
billboard or advertisement will be assessed against Tenant if Tenant fails to
obtain the written consent of Landlord prior to placing any such signs.
6.9 Use of Common Areas. Tenant shall not use any part of the Center exterior to
the Premises for outside storage. No trash, crates, pallets, or refuse shall be
permitted anywhere on the Center outside of the Building/s by Tenant except in
enclosed metal containers to be located as directed by Landlord. Tenant shall
not park any trucks or trailers, loaded or empty, except in front of the loading
areas.
6.10 Use of Premises. The Premises hereby leased shall be used by the Tenant
only for the Permitted Use of the Premises and for no other purposes. Tenant
shall, at Tenant's expense, comply promptly with all applicable statutes,
ordinances, rules, regulations, orders and requirements in effect during the
term or any part of the term hereof regulating the use by Tenant of the
Premises. Tenant shall not use or permit the use of the Premises in any manner
that will tend to create waste or a nuisance, or will tend to unreasonably
disturb such other tenants in the Center. Tenant, its employees and all persons
visiting or doing business with the Tenant in the Premises shall be bound by and
shall observe the Rules and Regulations attached to this Lease, as Exhibit A,
and such further and other reasonable rules and regulations made hereafter by
the Landlord relating to the Center or the Premises of which notice in writing
shall be given to the Tenant and all such rules and regulations shall be deemed
to be incorporated into and form a part of this Lease.
6.11 Hazardous Substances. Tenant shall not cause or permit to be released
(whether by way of uncapping, pouring, spilling, spraying, spreading, attaching,
or otherwise) into or onto the Premises, or the Building/s, or the Center, or
the Common Areas (including
11
15
the ground and ground water thereunder and the sewer and drainage systems
therein) any hazardous substances (as defined or established from time to time
by applicable local, state or federal law). Tenant shall immediately notify
Landlord if any such release occurs, and, as to any such release that has been
caused or permitted by Tenant: (I) Tenant shall immediately and entirely remove
such released hazardous substance, and in a manner fully in compliance with all
laws pertaining to the removal and storage or deposit thereof; and (11) Tenant
hereby agrees to hold Landlord harmless of and from any liability, public or
private, resulting to Landlord as a result of such release. Further, Tenant
shall, upon Landlord's demand and at Tenant's sole expense, demonstrate to
Landlord (through such tests, professional inspections, sampling or otherwise as
is, in Landlord's sole judgment, sufficient for the purpose) that Tenant has not
caused or permitted any such release of hazardous substances.
ARTICLE VII. INSURANCE.
7.1 Liability Insurance. Tenant covenants and agrees to maintain on the Premises
at all times during the Lease Term, or any extension or renewal thereof, a
policy or policies of comprehensive public liability and property damage
insurance with not less than $1,000,000.00 combined single limit for both bodily
injury and property damage.
7.2 Fire and Extended Coverage Insurance. Landlord shall, throughout the Lease
Term, or any extension or renewal thereof, maintain fire and extended coverage
(FEC) insurance on the property owned by Landlord located on the Center in such
amounts and with such deductibles as Landlord shall determine. Landlord shall
not in any way or manner insure any property of Tenant or any property that may
be in the Premises not owned by Landlord. Tenant shall comply with all insurance
regulations so that the lowest fire, lightning, explosion, extended coverage and
liability insurance rates may be obtained; and nothing shall be done or kept in
or on the Premises by Tenant which will cause an increase in the premium for any
such insurance on the Premises or on any Building/s of which the Premises are a
part or on any contents located therein, over the rate usually obtained for the
proper use of the Premises permitted by this Lease or which will cause
cancellation of any such insurance.
7.3 Indemnification of Landlord. Tenant shall indemnify Landlord and save
Landlord harmless from and against any and all loss (including loss of rentals
payable by Tenant or other tenants) and against all claims, actions, damages,
liability and expenses in connection with loss of life, bodily and, personal
injury or damage to property arising from any occurrence in, upon or at the
Premises or any part thereof, or occasioned wholly or in part by any act or
omission of Tenant, or by anyone permitted to be on the Premises by Tenant.
Tenant assumes all risk of and Landlord shall not be liable for injury to person
or damage to property resulting from the conditions of the Premises or from the
bursting or leaking of any and all pipes, utility lines, connections, or air
conditioning or heating equipment in, on or about the Premises, or from water,
rain or snow which may leak into, issue or flow from any part of the Building/s.
Tenant
12
16
agrees, at all times, to indemnify and hold Landlord harmless against all
actions, claims, demands, costs, damages or expenses of any kind which may be
brought or made against Landlord or which Landlord may pay or incur by reason of
Tenant's occupancy of the Premises or its negligent performance of or failure to
perform any of its obligations under this Lease. In case Landlord shall, without
fault on its part, be made a party to any litigation commenced by or against
Tenant, then Tenant shall protect and hold Landlord harmless and shall pay all
costs, expenses and reasonable attorney's fees incurred or paid by Landlord in
connection with such litigation. *See Paragraph 11 of Lease Rider Number One.
ARTICLE VIII. EMINENT DOMAIN AND DAMAGE OR DESTRUCTION.
8.1 Eminent Domain. In the event that title to the whole or a substantial part
of the Premises shall be lawfully condemned or taken in any manner for any
public or quasi-public use, this lease and the term and estate hereby granted
shall forthwith cease and terminate as of the date of vesting of title and
Landlord shall be entitled to receive the entire award, Tenant hereby assigning
to Landlord the Tenant's interest therein, if any. However, nothing herein shall
be deemed to give Landlord any interest in or to require Tenant to assign to
Landlord any award made to Tenant for the taking of personal property or
fixtures belonging to Tenant or for the interruption of or damage to Tenant's
business or for Tenant's moving expenses. A sale to a public or quasi-public
authority under threat of condemnation shall constitute a taking by eminent
domain.
In the event that title to a part of the building/s other than the Premises
shall be so condemned or taken, Landlord may terminate this lease and the term
and estate hereby granted by notifying Tenant of such termination within sixty
(60) days following the date of vesting of title, and this lease and the term
and estate hereby granted shall expire on the date specified in the notice of
termination, not less than sixty (60) days after the giving of such notice, as
fully and completely as if such date were the date herein set for the expiration
of the Lease Term, and the Rent hereunder shall be apportioned as of such date.
In the event of any condemnation or taking of any portion of the parking area of
the Center, which does not result in a reduction of the parking area by more
than twenty percent (20%) the terms of this lease shall continue in full force
and effect. If more than twenty percent (20%) of the parking area is taken,
either party shall have the right to terminate this lease upon giving written
notice to the other party within thirty (30) days of such taking.
8.2 Damage or Destruction. If the Premises, the Building/s or the Center or any
part thereof is damaged by fire or other casualty, cause or condition whatsoever
and Landlord shall determine not to restore said Premises, Building/s or Center,
Landlord may, by written notice to Tenant given within sixty (60) days after
such damage, terminate this Lease. Such termination shall become effective as of
the date of the damage. If this Lease is not terminated as above provided and if
the Premises are made partially or wholly untenantable, Landlord, at its
expense, shall restore the same with
13
17
reasonable promptness to the condition in which Landlord furnished the Premises
to Tenant at the commencement of the Lease Term as to those items that were
provided to the Premises at Landlord's expense without any reimbursement by
Tenant. Landlord shall be under no obligation to restore any alteration,
improvements or additions to the Premises made by Tenant or paid for by Tenant,
including, but not limited to, any of the initial tenant finish done or paid for
by Tenant or any subsequent changes, alterations or additions made by Tenant or
reimbursed by Tenant. *See Paragraph 12 of Lease Rider Number One.
If, as a result of fire or other casualty, cause or condition whatsoever the
Premises are made partially or wholly untenantable and, if Landlord has not
given the sixty (60) day notice above provided for and fails within one hundred
twenty (120) days after such damage occurs to eliminate substantial interference
with Tenant's use of said Premises or substantially to restore said Premises,
Tenant may terminate this Lease after the end of said one hundred twenty (120)
days, effective as of the date such damage occurs, by notice to Landlord given
not later than ten (10) days after expiration of said one hundred twenty (120)
day period. If the Premises are rendered totally untenantable but this Lease is
not terminated, all rent shall ▇▇▇▇▇ from the date of the fire or other relevant
cause or condition until the Premises are ready for occupancy and reasonably
accessible to Tenant. If a portion of the Premises is untenantable, rent shall
be prorated on a per diem basis and apportioned in accordance with the portion
of the Premises which is usable by the Tenant until the damaged part is ready
for the Tenant's occupancy. In all cases, due allowance shall be made for
reasonable delay caused by adjustment of insurance loss, strikes, labor
difficulties or any cause beyond Landlord's reasonable control. For the purposes
of this Lease, said Premises shall be considered tenantable so long as and to
the extent that the Premises are occupied. In any event, Tenant shall be
responsible for the removal, or restoration, when applicable, of all its damaged
property and debris from the Premises, upon request by Landlord or else Tenant
must reimburse Landlord for the cost of removal.
ARTICLE IX. DEFAULT AND REMEDIES.
9.1 Events of Default. The occurrence of any one or more of the following events
shall constitute a Default and a material breach of this Lease by Tenant:
9.1(a) Nonpayment. Failure of Tenant to pay any installment of Rent or other
sum payable to Landlord hereunder on the date that same is due and such
failure shall continue for a period of five (5) days; or *See Paragraph 13
of Lease Rider Number One.
9.1(b) Noncompliance. Failure of Tenant to comply with any term, condition
or covenant of this Lease, other than the payment of Rent or other sum of
money, and such failure shall not be cured within ten (10) days after
written notice thereof has been delivered by Landlord to Tenant; or
14
18
9.1(c) Insolvency or Transfer. Insolvency, the making of a transfer in fraud
of creditors or the making of an assignment for the benefit of creditors by
Tenant or any guarantor of Tenant's obligation; or
9.1(d) Bankruptcy. The filing by or against Tenant or any guarantor of
Tenant's obligations hereunder of a petition in bankruptcy or for
liquidation, or adjudication as a bankrupt or insolvent in proceedings filed
by or against Tenant or such guarantor; or
9.1(e) Receiver. Appointment of receiver or trustee for all or substantially
all of the assets of Tenant or any guarantor of Tenant's obligations
hereunder; or
9.1(f) Abandonment. Abandonment by Tenant of any substantial portion of the
Premises or cessation of use of the Premises for the purpose leased. *See
Paragraph 14 of Lease Rider Number One.
9.2 Remedies. In the event of the occurrence of any Default, Landlord shall have
the right, without further notice to or demand upon Tenant and without being
liable to Tenant for any damages or to any prosecution therefor, to do any and
all of the following:
9.2(a) Repossession and Sale. Re-enter and take exclusive possession of the
Premises with or without force or legal process, refuse to allow Tenant to
enter the same or have possession thereof, change the locks on the doors to
the Premises, take possession of any furniture or fixtures or other property
in or upon the Premises (Tenant hereby waiving the benefit of all exemptions
by law), sell the same at public or private sale without notice and apply
the proceeds thereof to the costs of sale, payment of damages and payment of
all sums owing under this Lease; and/or
9.2(b) Releasing. Relet the Premises as agent of Tenant for the balance of
the term of this Lease or for a shorter or longer term and receive the rents
therefor, applying them first to the payment of the expense of such
reletting and, second, to the payment of damages suffered to the Premises,
and third to all sums due and to become due under this Lease, Tenant
remaining liable for and hereby agreeing to pay Landlord any deficiency;
and/or
9.2(c) Cancellation. Cancel and terminate the remaining term of this Lease,
and re-enter and take possession of the Premises free of this Lease.
Thereafter this Lease shall be null and void and the Rent in such case shall
be apportioned and paid on and up to the date of such entry. Thereafter both
parties shall be released and relieved from and of any and all obligations
thereafter to accrue hereunder.
15
19
Tenant shall be liable for all loss and damage resulting from such breach or
default; and/or
9.2(d) Anticipatory Breach. Treat such default as an anticipatory breach of this
Lease and, as liquidated damages for such default, be entitled to the
difference, if any, between the sum which, at the time of such termination for
anticipatory breach represents the then present worth (computed at ten percent
(10%) per year) of the excess aggregate rents and additional rents payable
hereunder that would have accrued over the balance of the Lease Term (including
renewals) had such term not been prematurely terminated, over the aggregate
market rental value of the Premises over the term (including renewals) that the
Lease would have run had it not been prematurely terminated; and/or
9.2(e) Attorney's Fees. Recover from Tenant, Landlord's attorney's fees incurred
in enforcing its rights hereunder.
9.3 Remedies Cumulative. All rights and remedies expressly provided in this
Lease for Landlord's protection shall be cumulative as to each other and of any
other rights and remedies provided hereunder or by law.
9.4 No Waiver. A waiver by Landlord of a breach or default by Tenant under the
terms and conditions of this Lease shall not be construed to be a waiver of any
subsequent breach or default or of any other or the same term or condition of
this Lease,: and the failure of Landlord to assert any breach or to declare a
default by Tenant shall not be construed to constitute a waiver thereof so long
as such breach or default continues unremedied.
ARTICLE X. MISCELLANEOUS.
10.1 Bankruptcy or Assignment to Trustee. Neither this Lease nor any interest
therein nor any estate hereby created shall pass to any trustee or receiver in
bankruptcy or to any other receiver or assignee for the benefit of creditors or
otherwise by operation of law during the term of this Lease or any renewal
thereof.
10.2 Brokers. Except as may be expressly set forth to the contrary in the Rider,
each party represents to the other that no person, firm, corporation, or other
entity is entitled to any brokerage commission or finder's fee on account of the
execution, delivery, and consummation of this Lease. Tenant hereby agrees to
indemnify Landlord and to hold Landlord free and harmless of and from any and
all claims, losses, damages, costs and expenses of whatsoever nature, including
attorneys' fees and costs of litigation arising from or relating to any
brokerage commissions or finder's fees incurred by Tenant in connection with
this Lease. *See Paragraph 15 of Lease Rider Number One.
16
20
10.3 Captions. The captions used throughout this Lease are for convenience and
reference only and shall in no way be held to explain, modify, amplify, or aid
in the interpretation, construction or meaning of any provisions in this Lease.
10.4 Certificates of Occupancy. Tenant may, prior to the commencement of the
Lease Term, apply for a certificate of occupancy to be issued by the
municipality in which the Premises are located, but this Lease shall not be
contingent on issuance thereof.
10.5 Entire Agreement. This Lease including its Exhibits and Rider, if any,
contains the entire agreement between the parties and no modification of this
Lease shall be binding upon the parties unless evidenced by an agreement in
writing signed by Landlord and Tenant after the date hereof.
10.6 Joint and Several Liability of Multiple Tenants. If there be more than one
Tenant named herein, the provisions of this Lease shall be applicable to and
binding upon such Tenants jointly and severally.
10.7 Notices. Except as otherwise herein provided, whenever by the terms of this
Lease notice shall or may be given either to Landlord or, to Tenant, such notice
shall be in writing and shall be deemed to have been properly delivered if sent
by certified mail, return receipt requested, postage prepaid, to Landlord at
Landlord's Address and to Tenant at the Premises, or to such other place as
Landlord or Tenant may designate in writing. The date of mailing shall be deemed
the date of delivery.
10.8 Partial Invalidity. If any term, covenant, condition or provision of this
Lease or the application thereof to any person or circumstances shall, to any
extent be invalid, unenforceable or violate a party's legal rights, then such
term, covenant, condition or provision shall be deemed to be null and void and
unenforceable. however, all other provisions of this Lease, or the application
of such term or provision to persons or circumstances other than those which are
held invalid, unenforceable or violative of legal rights, shall not be affected
thereby. and each and every other term, condition, covenant and provision of
this Lease shall be valid and be enforced to the fullest extent permitted by
law.
10.9 Recording. This Lease shall not be recorded by either party without the
written consent of the other.
10.10 Successors. The agreements' covenants and conditions of this Lease shall
be binding upon and inure to the benefit of the heirs, legal representatives,
successors and assigns of each of the parties hereto, except that no assignment,
encumbrance or subletting by Tenant unless permitted by the provisions of this
Lease, without the written consent of Landlord shall vest any right in the
assignee, encumbrance or sublessee of Tenant.
17
21
10.11 Use of the Singular; Gender. The terms "Landlord" and "Tenant," and
pronouns representing the same, wherever used herein shall include the plural as
well as the singular, the feminine as well as the masculine.
10.12 Rider. A Rider consisting of 3 pages, with paragraphs numbered 1 through
20 consecutively, is attached hereto and made a part hereof.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date
hereinabove stated.
LANDLORD:
GENERAL AMERICAN LIFE INSURANCE
COMPANY, a Missouri Corporation
By:_______________________________________
TENANT:
MKS INSTRUMENTS, INC.
By:_______________________________________
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, Treasurer
By:_______________________________________
By:_______________________________________
18
22
EXHIBIT A
RULES AND REGULATIONS
1. Signs. Tenant shall not inscribe any inscription or post, place, or in any
manner display any sign, notice, picture, placard or advertising matter
whatsoever anywhere in or about Premises at places visible (either directly
or indirectly as an outline or shadow on a glass pane) from anywhere
outside of the Premises or from public and common areas within Premises
without first obtaining Landlord's written consent thereto and Landlord
shall specify the color, size, style and material to be used. *See
Paragraph 19 of Lease Rider Number One.
2. Showcases. No showcase shall be placed in front of or in the lobbies or
corridors of the Premises and Landlord reserves the right to remove all
showcases so placed and all signs other than those above provided for,
without notice and at the expense of the tenant responsible. See Paragraph
19 of Lease Rider Number One.
3. Installation of Signs. All exterior and interior signs must be installed by
Landlord or someone designated by Landlord and the actual cost thereof
shall be paid by Tenant and all such signs are so placed at the risk of
Tenant.
4. Telephone Connections. If Tenant desires telegraphic, cable television, or
telephone connections, Landlord will direct electricians where the wires
are to be introduced and without such direction no boring or cutting for
wires shall be permitted.
5. Submission of Plans. Tenant shall submit to Landlord for Landlord's
approval, a copy of its construction and equipment layout plan prior to
commencement of construction. In the event that Tenant is unable to obtain
Landlord's approval for said plans and layout, this Lease shall at Tenant's
sole option be deemed null and void and any amounts paid by Tenant to
Landlord pursuant to this lease shall be reimbursed to Tenant without
offset. *See Paragraph 19 of Lease Rider Number One.
6. No Nuisances. Tenant shall not do or permit anything to be done in the
Premises which will be dangerous to life, or limb, or which will tend to
create a nuisance or injure the reputation of the Building/s. Tenant shall
not use burning fluid, camphine, alcohol, kerosene, or anything else in
order to light or heat the Premises except steam, gas or electricity.
Tenant shall not bring into the Premises or keep therein any heating or
lighting apparatus other than that provided by Landlord; or install any air
conditioning or air cooling apparatus without the written consent of
Landlord; or in any way injure, modify, or tamper with any of such
apparatus in any manner or in any manner in violation of the regulations of
the
19
23
Fire Department, or with any insurance policy upon said Buildings or any
part thereof. Tenant shall not do or permit to be done in the Premises any
activity in conflict with any of the laws, rules or regulations of any
governmental agency or municipality having jurisdiction, or use the
Premises for an illegal or immoral purpose. No beer, wine or intoxicating
liquor shall be sold on or about the Premises without the written consent
of Landlord in each instance.
7. Passageways. The sidewalk, passages, lobbies, corridors, elevators and
stairways shall not be obstructed by Tenant; or used except for ingress and
egress from and to the Premises. The doors, skylights, windows and transoms
that reflect or admit light into passageways or into any place in said
Buildings, shall not be covered or obstructed by Tenant.
8. Water Closets. The water closets and other apparatus shall not be used for
any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown therein. Any
damage resulting to them from misuse shall be borne by the tenant who shall
cause it.
9. No Defacing or Offensive Business. Tenant and its employees and guests are
not to injure or deface the Buildings nor the woodwork, nor the walls of
the Premises, nor to carry on upon the premises any noisome, noxious, noisy
or offensive business nor conduct an auction therein, nor interfere in any
way with other tenants or those having business with them.
10. No Lodging. No room or rooms on or about the Premises shall be occupied or
used as sleeping or lodging apartments.
11. Lock all Doors. Tenant shall, when leaving Premises at close of business,
or unoccupied at any time, lock all doors and windows and for any default
or carelessness in this respect shall make good all injury sustained by
other tenants and by Landlord or by either of them, for damages resulting
from such default or carelessness.
12. No Animals. No animal or bird shall be allowed in any part of the Premises
or Buildings without the consent of Landlord.
13. No Accumulation of Rubbish. Tenant shall not accumulate or store on or
about the Premises any waste paper, discarded records, paper files,
sweepings, rags, rubbish or other combustible matter other than the normal
accumulation needed to conduct the Permitted Use of the Premises. Nothing
shall be thrown by Tenant, its employees or guests, out of the windows or
doors or down the passages or skylights or over balcony rails of the
Buildings or in the parking areas.
20
24
14. Exclusion of Peace Disturbers. Landlord reserves the right to exclude from
the Premises or Buildings all drunken persons, idlers, diseased persons,
peddlers, solicitors, persons of a general character or conduct so as to
create a disturbance, and persons entering in crowds or in such unusual
numbers as to cause inconvenience to tenants of the Buildings.
15. Changes to Rules. Landlord reserves the right to change these rules and to
make such other and further reasonable rules and regulations either as it
affects one or all tenants as in its judgment may from time to time be
needed for the safety, care and cleanliness of the Center, for the
preservation of good order therein or for any other cause. When such
changes are made such modified or new rules shall be deemed a part hereof
with the same effect as if written herein, when a copy shall have been
delivered to Tenant or left with some person in charge of the Premises.
16. No Live Christmas Trees. No live or fresh cut Christmas Trees are permitted
on or about the Premises.
17. No Picnics. No outside picnics or barbecue's are permitted without the
prior written consent of Landlord.
18. No Outside Storage. No outside storage of any material is permitted.
19. Smoking Policy. Though Landlord encourages no smoking at the property
within the leased premises, beginning July 1, 1995 forward, Tenant,
Tenant's employees and agents's outdoor smoking shall be limited to behind
the building in which Tenant occupies space. Tenant shall be responsible
for maintaining the area and Landlord shall ▇▇▇▇ Tenant directly for any
needed clean-up costs resulting from any smoking debris which litters the
property. Violations of the smoking area rules will be handled by Landlord
and/or the City of ▇▇▇▇▇▇▇▇▇▇. *See Paragraph 19 of Lease Rider Number One.
Tenant, Tenant's employees and Tenant's customers shall not congregate in
front of buildings except areas in front of Tenant's leased premises.
21
25
LEASE RIDER
NUMBER ONE
BY AND BETWEEN
GENERAL AMERICAN LIFE INSURANCE COMPANY
AND
MKS INSTRUMENTS, INC.
1. 1.3 Base Rent.
Years 1 - 3 $5,485.13 per month
2. 1.4 Base Year. - Delete the sentence and replace with "The base year for
this lease agreement is 1994".
3. 3.3 Holding Over. - On line 4 change "double Rent" to "monthly rent
equivalent to one hundred twenty-five percent (125%) of the Base
Rent".
4. 4.2(d) HVAC Maintenance. - Delete this paragraph and replace with the
following: "Tenant shall be responsible for maintaining the
heating/ventilation/air-conditioning systems throughout the term of
the Lease. Upon termination of the Lease Agreement, Tenant shall
deliver the equipment back to Landlord in the same condition as it
was received, reasonable wear and tear accepted."
5. 4.2(e) Common Area Expenses. - At the end of the first paragraph add the
following: "Additional rent due from this paragraph is estimated to
be $597.27 per month. Tenant shall deposit an additional $597.27 per
month during the term of the lease. At the end of each calendar
year, if Tenant has deposited an excess amount, Landlord will credit
any overage. If at the end of any calendar year Tenant has not
deposited their pro rata portion in full, Tenant will be billed for
any deficit."
6. 4.3 Late Payment. - On line 2 change "three (3)" to "ten (10)".
7. 5.1 Maintenance by Landlord. - On line one, top of page six, after the
word "roof", insert "except as herein provided".
On line two, top of page six, after the word "repair.", delete the
following: "Landlord shall enter into a service contract on the
Building for the Heating, ventilation and air conditioning equipment
for periodic inspection
22
26
and service of such equipment and Tenant shall reimburse Landlord
pursuant to the provisions hereof."
8. 5.4(b) Redecorate. - Strike entire paragraph.
9. 6.2 Alterations and Additions. - On line 2 after "Premises" add "except
as herein provided".
10. 6.4 Locks. - Strike entire paragraph.
11. 7.3 Indemnification of Landlord. - On line 2, after "loss", delete
"(including loss of rentals payable by Tenant or other tenants)".
On line 7, before "Premises" add "demised".
On line 9, before "property" add "personal" and before "Premises"
add "demised".
On line 13, after "Building/s" add ", unless such damage or injury
is a direct result of Landlord's gross negligence, willful act or
failure to act".
On line 16, delete "its" and replace with "Tenant's".
At the end of the paragraph, add the following: "Notwithstanding
anything contained in this Paragraph 7.3 to the contrary, Tenant
shall not indemnify and hold Landlord harmless from any losses,
claims, actions, damages, liabilities or expenses that are caused by
or arise out of Landlord's gross negligence, willful acts or failure
to act, or that is caused by conditions in the Demised Premises or
the Building that has not been caused by Tenant and that Landlord
has the obligation and duty to maintain, repair or replace."
12. 8.2 Damage or Destruction. - On line five of the first paragraph delete
"sixty (60)" add "thirty (30)".
Make the following changes in the second paragraph: On line 3,
delete "sixty (60)" add "thirty (30)"; on line 4, delete "one
hundred twenty (120)" add "ninety (90)"; on line 7, delete "one
hundred twenty (120)" add "ninety (90)"; and on line 9, delete "one
hundred twenty (120)" add "ninety (90)".
13. 9.1(a) Nonpayment. - On line 4, delete "five (5) days' add "ten (10) days
after written notice from Landlord".
14. 9.1(f) Abandonment. - Delete this paragraph.
23
27
15. 10.2 Brokers. - Delete this paragraph and add "Each party represents
that ▇▇▇▇▇▇ ▇▇▇▇ of ▇▇▇▇▇▇ ▇▇▇▇, REALTORS(R) and ▇▇▇▇ Bexley of
▇▇▇▇▇ Companies/ONCOR International, are entitled to a
brokerage commission on account of the execution, delivery and
consummation of this Lease."
16. Tenant shall be responsible for causing the demised premises to
at all times be in compliance with the terms of the Americans
with Disabilities Act of 1990 (the "ADA"), including, without
limitation of any improvements, additions or alterations to the
demised premises. Furthermore, Tenant shall at all times
operate the demised premises and its business thereon in a
manner which causes the demised premises to comply with ADA.
Landlord hereby reserves the right to hereafter modify, from
time to time, policies, practices, rules and procedures
applicable to the demised premises, to the extent necessary to
comply with the ADA.
17. Waiver of Subrogation. - Each party hereto waives any and every
claim which arises or may arise in its favor and against the
other party hereto during the term of this Lease or any renewal
or extension thereof for any and all loss of, or damage to, any
of its property located within or upon, or constituting a part
of, the Premises leased to Tenant hereunder, which loss or
damage is covered by valid and collectible fire and extended
coverage recoverable under said insurance policies. Such mutual
waivers shall be in addition to, and not in limitation or
derogation of, any other waiver or release contained in this
Lease with respect to any loss of, or damage to, property of
the parties hereto. Inasmuch as the above mutual waivers will
preclude the assignment of any aforesaid claim by way of
subrogation (or otherwise) to an insurance company (or to any
other person), each party hereby agrees immediately to give to
each insurance company which has issued to it policies of fire
and extended coverage insurance, written notice of the terms of
said mutual waivers, and to have said insurance policies
properly endorsed, if necessary, to prevent the invalidation of
said insurance coverages by reasons of said waivers.
18. Parking. - Parking for Tenant's customers, employees, and
agents shall be limited to directly in front of the Premises.
Overflow parking shall be limited to the open parking area
between the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ buildings and the
north end of the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ building (See Exhibit "B"). Any
violation of this parking limitation shall allow Landlord to
have such vehicle towed with no recourse to Landlord.
EXHIBIT A:
19. 1. Signs. - On line 1 between "not" and "inscribe", insert
"except as herein permitted".
24
28
2. Showcases. - On Line 1, delete "in front of or in the lobbies
or corridors of the Premises" add "outside of the confines of
the demised Premises".
5. Submission of Plans. - At the end of this paragraph add the
following: "If the plans are not approved by Landlord within
three (3) business days after submission by Tenant to Landlord,
said plans shall automatically be deemed to be approved by
Landlord."
19. Smoking Policy. - Outdoor smoking breaks shall be in accordance
with Rules and Regulations Item No. 19.
20. Tenant's security deposit in the amount of $3,117 for lease
dated August 10, 1989 for ▇▇▇ ▇▇▇▇▇ ▇▇ #▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
shall be transferred to this new lease.
25