FIRST ADDENDUM TO LEASE
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This First Addendum to Lease ("Addendum") is attached to and made a
part of that certain Lease, dated August 21, 1996, by and between CRPB
INVESTORS, L.L.C., an Arizona limited liability company, as Lessor, and CERPROBE
CORPORATION, a Delaware corporation, as Lessee, including the Work Agreement
attached as Exhibit "B". Should the provisions of the Lease and this Addendum
conflict, then the terms and conditions contained in this Addendum shall
control. Any reference to "Lease" shall include this Addendum, including all
exhibits, unless a different intent is clearly indicated.
49. Definitions. All capitalized terms not otherwise defined in
this First Addendum shall have the meanings given to them in the Lease or the
Work Agreement attached hereto.
50. Term; Completion. The Original Term of this Lease is fifteen
(15) years from the Commencement Date. The Commencement Date shall be the date
on which Substantial Completion occurs. If the Commencement Date occurs on a day
other than the first day of a calendar month, the Original Term of this Lease
shall be fifteen (15) years plus the number of days remaining in the month in
which the Commencement Date occurs. In the event that Substantial Completion of
the Work does not occur before the Scheduled Completion Date set forth in the
Work Agreement, then Lessee shall be credited with two (2) days of free Base
Rent for each day of delay until Substantial Completion of the Work occurs. In
the event that Substantial Completion does not occur within sixty (60) days
following the Scheduled Completion Date set forth in the Work Agreement, then
Lessee, upon written notice to Lessor, shall be entitled to terminate the Lease
in which case Lessee shall be released from all liability and obligation
thereunder. Upon any such termination by Lessee, Lessor shall pay to and
reimburse Lessee on demand for all reasonable costs and expenses incurred in
connection with the Project and this Lease including, but not limited to,
architect's fees, consultant fees, legal fees, and any additional rental, costs
or expenses incurred for the lease or occupancy of substitute premises,
including any increased rent or penalties for the premises now occupied by
Lessee, to the extent that such rental costs for comparable space exceed the
Base Rent that Lessee otherwise would have been obligated to pay to Lessee if
the Lease had not been terminated, plus such other damages and costs as Lessee
may incur as a result of Lessor's default.
51. Base Rent. The Base Rent for the Original Term shall be
calculated according to the schedule set forth below. The Base Rent shall be
payable in equal monthly installments, each due on the first day of each month.
In the event the Commencement Date occurs on a day other than the first day of a
month, then the Base Rent for the partial month shall be calculated by prorating
the monthly Base Rent according to the number of days in the partial month
occurring after the Commencement Date.
(a) Commencing on the Commencement Date and ending upon
expiration of the fifth Lease Year of the Original Term, the monthly Base Rent
shall be calculated by multiplying the Project Costs (as defined herein) times
11.5% and dividing the result by twelve (12) ("Initial Base Rent"). Lessor and
Lessee acknowledge and agree that the estimated Project Costs is $7,600,000.00.
Lessor and Lessee also agree that in no event shall: (i) the monthly Initial
Base Rent be less than $71,875.00 per month or (ii) the total Project Costs be
greater than $7,600,000.00 without Lessee's prior written consent; or (iii) line
item expenditures exceed the line item amounts set forth in the budget approved
by Lessee as provided in subparagraph (e) below, without Lessee's prior written
consent.
(b) For Lease Years six (6) through ten (10) of the
Original Term, the monthly Base Rent shall be calculated by multiplying the
monthly Initial Base Rent for Lease Years one (1) through five (5) times 115%.
(c) For Lease Years eleven (11) through fifteen (15) of
the Original Term, the monthly Base Rent shall be calculated by multiplying the
monthly Base Rent for Lease Years six (6) through ten (10) times 115%.
(d) With each monthly payment of Base Rent, Lessee shall
also pay to Lessor any sales or transactional privilege taxes imposed by the
City of Xxxxxxx, County of Maricopa, or State of Arizona.
(e) No later than twenty (20) days following the delivery
to Lessor of the Building Permit issued by the City of Xxxxxxx, Lessor shall
prepare and deliver to Lessee for Lessee's approval an itemized budget for the
Project, reflecting the costs of all labor, materials, supplies, equipment, fees
and services necessary for the Work. Upon Lessee's approval thereof, Lessor
agrees that the cost of any line item shall not be exceeded by more than ten
percent (10%) of such line item or $25,000, whichever is greater, without
Lessee's approval, so long as the total costs do not exceed the total Project
Costs set forth in the budget approved by Lessee. Lessor agrees that upon
forty-eight (48) hours notice, Lessee, its employees or accountants shall have
the right to audit all Project Costs at reasonable intervals, and Lessor shall
deliver or make available to Lessee all invoices and statements of account
supporting the amounts so expended and claimed by Lessor as part of the Project
Costs. In the event of any dispute between Lessor and Lessee as to any of the
costs, the good faith and reasonable determination by the architect as to
whether such costs are appropriate and are to be included as a part of the
Project Costs shall be conclusive and binding on the parties.
52. Option to Renew Lease. Lessor hereby grants to Lessee the
option to extend the term of this Lease (the "Option") for seven (7) additional
periods of five (5) Lease Years each, subject to the following conditions. If
the Option is exercised, each successive term shall commence when the prior term
expires.
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(a) To exercise its Option to extend the Original Term or
any extended term, Lessee shall deliver to Lessor written notice of Lessee's
election to extend no less than one hundred eighty (180) days nor more than two
hundred seventy (270) days prior to the expiration of the then current lease
term. If said notification of the exercise of the Option is not so delivered,
the Option shall continue and shall expire seven (7) days after Lessor has
delivered written notice to Lessee that the Option will expire within seven (7)
days following Lessee's receipt thereof. Each Option may (if more than one) only
be exercised consecutively.
(b) The provisions of Paragraph 39, including the
provision relating to the default of Lessee set forth in Paragraph 39.4 of this
Lease, are conditions of this Option.
(c) All of the other terms and conditions of this Lease
except where specifically modified by this Option shall apply during each
extended term.
(d) The annual Base Rent for each five-year period (each
"Option Period") of the Option(s) shall be determined as follows:
(i) For the first three (3) five-year Option
Periods (Lease Years 16- 30), the monthly Base Rent for each Option Period shall
be equal to the greater of (A) the monthly Base Rent for the previous five (5)
Lease Year period multiplied by 115%, or (B) the Market Rental Value (determined
as set forth in paragraphs 52(d)(ii) and (iii) below) for comparable space in
comparable real estate located within the same market area.
(ii) Four (4) months prior to the expiration of
the Original Term, or four (4) months prior to the expiration of the current
Option Period, as the case may be, Lessor and Lessee shall meet to establish an
agreed upon new monthly Base Rent for the Option Period or Periods as to which
Lessee has elected to extend. If agreement cannot be reached within sixty (60)
days after the first meeting, Lessor shall obtain, at its expense, and deliver
to Lessee, an appraisal as to the Market Value Rental of the Premises.
(iii) If, within thirty (30) days after Lessee's
receipt of the appraisal, Lessor and Lessee cannot mutually agree as to the
Market Value Rental of the Premises, then Lessee shall have the right within
thirty (30) days to obtain, at its expense, and deliver to Lessor, an appraisal
reflecting the Market Value Rental of the Premises. If the two appraisers are
unable to agree on the Market Value Rental within fifteen (15) days after
delivery of Lessee's appraisal to Lessor, such two appraisers shall, within
fifteen (15) days thereafter, join to appoint a third appraiser and if they fail
so to appoint such third appraiser within such period, the third appraiser shall
be appointed by the Presiding Judge of the Federal District Court for the
District of Arizona, or if said Presiding Judge should refuse to make such
appointment, by the Presiding Judge of the Maricopa County Superior Court. Such
third appraiser shall individually determine such fair market value of the
Premises within forty-five (45) days thereafter. The Market Value Rental and
purchase
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price of the Premises shall then become the average of the Market Value Rental
determinations of the two (2) appraisals closest in value. All appraisers
appointed hereunder shall be competent, qualified by training and experienced in
Maricopa County, Arizona, to appraise real estate of the type to be appraised
hereunder, disinterested and independent and shall be members in good standing
of the American Institute of Real Estate Appraisers (or any successor
association, or a body of comparable standing if such Institute is not then in
existence) and all appraisal reports shall be rendered in writing and signed by
the appraiser or appraisers making the report. Lessor and Lessee shall bear the
costs of their respective appraisers and shall share the cost of the third
appraiser, if any.
(iv) For the fourth, fifth, sixth and seventh
five-year Option Periods (i.e., Lease Years 31-70), the annual Base Rent for
each Option Period shall be equal to the lesser of: (A) the monthly Base Rent
for the immediately prior Option Period multiplied by 115%, or the Market Rental
Value for comparable space in comparable real estate located within the same
market area. The procedure used to establish Market Rental Value set forth in
paragraphs 52(d)(ii) and (iii) above shall be utilized to establish Market
Rental Value for the fourth, fifth, sixty and seventh Option Periods.
53. Security Deposit.
(a) On or before the Commencement Date, Lessee shall
remit to Lessor a security deposit in the amount of one month's Base Rent, which
will be held by Lessor as security for the payment and performance by Lessee of
the amounts and obligations to be paid and performed by Lessee under this Lease.
If Lessee shall faithfully pay and perform the obligations to be paid and
performed by it, then Lessor shall disburse to Lessee the security deposit
together with all accrued interest thereon within thirty (30) days following the
expiration of the third Lease Year.
(b) The Security Deposit shall be held by Lessor in an
interest bearing money market account subject to immediate withdrawal without
penalty, or, at Lessee's option a certificate of deposit with a maturity of no
more than one (1) year, with the accrued interest to be added to the Security
Deposit. If these funds are not available because of a bankruptcy or similar
proceeding involving Lessor, Lessee shall have the right to offset the loss of
the funds against the amounts next due from Lessee under the Lease.
54. Assignment of Lessor's Interest. Lessor shall not have the
right to assign its interest under this Lease prior to Substantial Completion
without Lessee's prior written consent. Following Substantial Completion, Lessor
shall have the right to assign its interest under this Lease, without the
consent of the Lessee, during the Original Term of this Lease and any Option
Period, provided that the assignee executes and delivers to Lessee an instrument
pursuant to which the assignee has agreed to assume and perform all of the
obligations of Lessor that are to be performed by Lessor following the date of
such assignment. Any assignment by Lessor shall release and discharge Lessor
from any
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obligations that are to be performed by Lessor subsequent to such assignment,
but shall in no event release or discharge Lessor from any obligations that are
to be or were to have been performed by Lessor prior to such assignment.
55. Liability of Lessor. The liability of Lessor under this Lease
shall be limited to Lessor's interest in the Premises and the Security Deposit.
In no event shall there be any recourse against any partner, member or agent of
Lessor or Lessee, or any member, person or entity comprising Lessor or Lessee,
or against any property or assets of any such partner or member or agent for or
on account of any obligation or liability arising under this Lease or otherwise
in connection with the Premises.
56. Construction. In consideration of the covenants and
obligations to be performed by Lessor under this Lease, Lessor, at Lessor's sole
expense, shall provide all labor, materials, supplies and equipment necessary to
construct the building and other improvements, all as described in Paragraph 1.2
and Exhibit "A", Exhibit "B" and Exhibit "C" to this Lease.
57. Expansion of Premises/Option To Purchase.
57.1 Grant of Option. Lessor and Lessee acknowledge that
Lessee may require, from time to time, additional space to be constructed and
added to the Premises during the Original Term of this Lease or any Option
Period so as to accommodate the business and operations of Lessee. Each time
that Lessee determines that it will require such additional space and there is
no existing Breach under this Lease; Lessee shall give written notice thereof to
Lessor, and Lessor and Lessee shall thereafter negotiate in good faith to agree
upon terms for the construction of such additional space, including, if
necessary, additional buildings and improvements to accommodate Lessee's
requirements, and associated revisions to this Lease, including the amount of
the Base Rent. If Lessee gives notice, within the last ten (10) years of the
term of the Lease, that Lessee will require additional space, and Lessor and
Lessee thereafter agree upon terms for the construction of such additional
space, the term of the Lease shall be extended so that the remaining term of the
Lease shall be no less than ten (10) years from the date of Lessee's notice. If
Lessor and Lessee are unable to agree upon terms within sixty (60) days after
delivery of Lessee's written notice to Lessor of Lessee's requirements for
additional space Lessor hereby grants to Lessee an option (the "Option"), for a
period of twelve (12) months commencing upon the expiration of the sixty (60)
day period, to purchase the Premises upon and subject to the terms and
conditions described below. If Lessee does not elect to exercise the Option
within such twelve (12) month period, or exercises the Option, but cancels and
terminates the purchase transaction prior to the closing pursuant to Paragraph
57.13, Lessee shall not have the right to exercise any Option to purchase in
connection with a requested expansion for a period of twelve (12) months after
the expiration of the prior Option or the termination of the purchase
transaction.
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57.2 Notice of Exercise. The Option may be exercised by
Lessee delivering written notice of such exercise to Lessor at the address
specified below.
57.3 Price.
(a) Determination of Purchase Price. After the
exercise of the Option, Lessor and Lessee
shall negotiate in good faith to agree upon
the price at which the Premises will be
purchased by Lessee. Such purchase price to
be paid for the Premises shall be the then
fair market value of the Premises, subject
to the terms and conditions of this Lease;
provided, however, that the purchase price
shall not be less than the amount of the
unpaid balance of principal, interest, and
other charges on the Construction Loan and
the Permanent Loan.
(b) Negotiation of Purchase Price and use of
Appraisals. Not later than forty-five (45)
days after Lessee exercises the Option,
Lessor shall obtain, at its expense, and
deliver to Lessee, an appraisal as to the
fair market value of the Premises. If,
within sixty (60) days after Lessee's
receipt of the appraisal, Lessor and Lessee
cannot mutually agree as to the fair market
value of the Premises, then Lessee shall
have the right within forty- five (45) days
after the expiration of the sixty (60) day
negotiation period to obtain, at its
expense, and deliver to Lessor, an appraisal
reflecting the fair market value of the
Premises. If the two appraisers are unable
to agree on the fair market value within
fifteen (15) days after delivery of Lessee's
appraisal to Lessor, such two appraisers
shall, within fifteen (15) days thereafter,
join to appoint a third appraiser and if
they fail so to appoint such third appraiser
within such period, the third appraiser
shall be appointed by the Presiding Judge of
the Federal District Court for the District
of Arizona, or if said Presiding Judge
should refuse to make such appointment, by
the Presiding Judge of the Maricopa County
Superior Court. Such third appraiser shall
individually determine such fair market
value of the Premises within forty-five (45)
days thereafter. The fair market value and
purchase price of the Premises shall then
become the average of the fair market value
determinations of the two (2) appraisals
closest in value. All appraisers appointed
hereunder shall be competent, qualified by
training and experienced in Maricopa County,
Arizona, to appraise real estate of the type
to be appraised hereunder, disinterested and
independent and shall be members
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in good standing of the American Institute
of Real Estate Appraisers (or any successor
association, or a body of comparable
standing if such Institute is not then in
existence) and all appraisal reports shall
be rendered in writing and signed by the
appraiser or appraisers making the report.
Lessor and Lessee shall bear the costs of
their respective appraisers and shall share
the cost of the third appraiser, if any.
(c) Payment of the Purchase Price. The purchase
price to be paid for the Premises shall be
paid at close of escrow. The purchase price
to be paid for the Premises may, at Lessee's
option, be paid through Lessee's assumption
at the close of escrow of existing
indebtedness on the Premises and the
remainder thereof in cash. However, Lessee's
ability to assume the existing indebtedness
on the Premises shall be conditioned upon
the discharge of the liability of Lessor and
any guarantors for such indebtedness.
57.4 Title Report. Not later than thirty (30) days after
Lessee exercises the Option, Lessor shall cause to be delivered to Lessee by a
title company selected by the parties: (i) an "extended coverage" title report
with respect to the Premises showing that title to the Premises is subject to
only those matters set forth in Paragraph 57.9; (ii) legible copies of all
documents, whether recorded or unrecorded, referred to as special exceptions in
such title report or any supplemental title report issued by the title insurance
company; and (iii) an ALTA survey of the Premises from a surveyor selected by
the parties in form reasonably acceptable to Lessor and Lessee. Lessor agrees
that during the term of this Lease Lessor will not do anything that could
reasonably be expected to prevent the parties from obtaining an extended
coverage title policy with respect to the Premises.
57.5 Conveyance Document. The conveyance of the Premises
to Lessee or its designee shall be by a good and sufficient special warranty
deed in form acceptable to Lessee conveying to Lessee or its designee good and
marketable title to the Premises, subject only to the exceptions permitted under
Paragraph 57.9.
57.6 Title Insurance. As of the closing date, Lessor shall
cause to be delivered to Lessee, a standard coverage title insurance policy and,
if available, an extended coverage title policy issued by the title insurance
company in the amount of the purchase price insuring that Lessee has acquired
good and marketable title to the Premises subject only to those matters set
forth in Paragraph 57.9 hereof. Lessee shall reimburse Lessor for the difference
between the premiums for an extended coverage title insurance policy and the
premiums for a standard coverage title insurance policy.
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57.7 Closing Date. The purchase transaction shall be
closed within one hundred twenty (120) days after the purchase price is
determined pursuant to Paragraph 57.3.
57.8 Condition of Title.
(a) Exceptions to Title. The Premises shall be
conveyed by Lessor to Lessee subject only
to:
(i) current real estate taxes for the
year during which the closing
occurs;
(ii) current assessments;
(iii) current property owner's
association dues;
(iv) matters to which the Premises are
subject on the Commencement Date of
this Lease;
(v) matters affecting title caused or
created by Lessee or that have been
approved in writing by Lessee;
(vi) utility easements and other
easements incidental to the
development and use of the Premises
that do not impair the value, or
interfere with Lessee's use and
occupancy, of the Premises; and
(vii) the effect of all other applicable
documents executed hereafter by
both Lessor and Lessee, or by one
of them with the written consent of
the other, or which Lessor is
permitted to execute alone and
without Lessee pursuant to the
provisions of this Lease, including
any mortgage or deed of trust that
is assumed by Lessee in connection
with the purchase of the Premises.
(b) Removal of Title Exceptions. Prior to
closing, Lessor shall satisfy, remove or
cause to be removed, prior to the close of
escrow for the purchase and sale of the
Premises, all matters affecting title to the
Premises other than those matters permitted
in this Paragraph 57.9. Lessor shall
indemnify, defend, and hold Lessee harmless
for, from and against and any and all
losses, debts, liabilities or claims,
absolute or contingent,
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and all actions, suits proceedings, demands,
judgments, costs and expenses incident
thereto, incurred in connection with or
resulting from any failure of Lessor to
comply fully with the provisions of this
Paragraph.
57.9 Fees and Charges. The escrow fees and charges, and
all other expenses in connection with the transaction for which the Option may
be exercised, will be shared equally by Lessee and Lessor. Real estate taxes,
assessments, property owner's association dues and those costs and expenses
relating to the Premises which constitute Lessee's obligations pursuant to this
Lease shall not be prorated between Lessor and Lessee, it being the
understanding of the parties hereto that Lessee solely shall be obligated to pay
the same.
57.10 Lessee's Remedies. By reason of, among other things,
the uniqueness of the Premises, Lessee shall be entitled to exercise and enforce
the equitable remedies of specific performance and/or injunction for each and
every obligation of Lessor under Paragraph 57, which remedies may be exercised
and enforced separately or cumulatively with any other rights or remedies
available to Lessee in the event of a breach by Lessor of any of Lessor's
obligations under Paragraph 57 or any other provision of this Lease.
57.11 No Real Estate Commission. No real estate commission
shall be payable by Lessee in connection with Lessee's exercise of the Option or
Lessee's purchase of the Premises.
57.12 Lessee's Right To Terminate Purchase. Notwithstanding
Lessee's exercise of the Option pursuant to Paragraph 57.2, Lessee shall have
the right to cancel and terminate the purchase transaction in Lessee's sole
discretion at any time prior to the closing of the sale. Lessee shall pay
Lessor's reasonable out-of-pocket expenses for surveys, title examination,
appraisals, and similar services provided by third parties and reasonable
attorney's fees incurred in connection with the terminated sale.
57.13 Further Documents. Lessor and Lessee shall execute,
acknowledge and deliver such instruments, and shall do such acts, as may be
necessary or appropriate to close the purchase and sale of the Premises,
including without limitation such instruments as may be necessary or appropriate
to cancel or amend existing documents which no longer will be applicable to the
Premises after and by reason of Lessee's purchase.
57.14 Lessee's Continuing Duty to Perform Under Lease. From
and after Lessee's exercise of the Option until the closing of the purchase
transaction or the earlier termination of the purchase transaction, Lessee shall
continue to perform all of its obligations under this Lease. If Lessee fails to
perform its obligations under this Lease during that period, Lessor may exercise
any remedies available to it under this Lease.
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58. Right of First Offer/Option to Purchase. If at any time during
term of this Lease, Lessor shall elect to sell the Premises, Lessor grants
Lessee the first offer to purchase the Premises and an option to purchase the
Premises in accordance with the provisions of this paragraph:
(a) Prior to offering the Premises for sale to third
parties, Lessor shall deliver to Lessee written notice of Lessor's election to
do so ("Notice to Sell") and a current appraisal of the fair market value of the
Premises. The Notice to Sell shall contain the price and terms upon which Lessor
intends to sell the Premises. Lessee shall have thirty (30) days from the
receipt of the Notice to Sell to (i) deliver written notice to Lessor that
Lessee has elected to purchase the Premises upon the terms and conditions
established by Lessor in the Notice to Sell ("Notice to Purchase"), or (ii) to
deliver written notice to Lessor that Lessee is exercising the option to
purchase the Premises granted in this Paragraph 58 upon and subject to the
terms, conditions and procedures set forth in Paragraph 57. If Lessee has not
delivered the Notice to Purchase to Lessor within such thirty (30) day period,
or if Lessee has not delivered written notice of Lessee's exercise of the option
granted in this Paragraph 58 within such thirty (30) day period, Lessee's right
to purchase the Premises shall be deemed waived by Lessee, and Lessor shall have
the right to sell the Premises to any third party upon customary and reasonable
terms and with the price not to be less than eighty percent (80%) of the price
specified in Lessor's Notice to Sell to Lessee. If the Premises are not
transferred to a third party in connection with a sale within 270 days after the
date of Lessee's receipt of the Notice to Sell, or if Lessor thereafter decides
to offer the Premises for sale on customary and reasonable terms at a price less
than eighty (80%) of the price specified in the Notice to Sell, then Lessor
shall first re-offer the Premises for sale to Lessee upon such new terms, in
accordance with the procedures and time limits set forth in this Paragraph 58
and Lessee's rights under this Paragraph 58, including the option to purchase,
shall be restored.
(b) In the event that Lessee delivers to Lessor written
notice that Lessee has elected to purchase the Premises upon the terms and
conditions established by Lessor in the Notice to Sell, then Lessor shall sell,
and Lessee shall purchase, the Premises upon and subject to such terms. In the
event that Lessee delivers to Lessor written notice that Lessee has elected to
exercise the option to purchase the Premises, then Lessor shall sell, and Lessee
shall purchase, the Premises upon and subject to the terms, conditions, and
procedures set forth in Paragraph 57. However, Lessee shall have the option to
rescind its election to purchase the Premises by delivering written notice of
such rescission to Lessor at any time prior to the closing of the sale. In such
case, Lessee shall pay Lessor's reasonable, out-of-pocket expenses incurred in
connection with the purchase, including attorney's fees, but not for other
expenses for services such as surveys, appraisals and similar services that can
reasonably be expected to be used in connection with a subsequent sale of the
Premises to a third party.
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59. Liens. Lessor shall not record or suffer to be recorded any
deed of trust or other security instrument, other than the deed of trust
securing the Construction Loan or the Permanent Loan, which creates, may create
or appear to create a lien or encumbrance upon the Premises, or any part
thereof, without Lessee's prior written consent, which consent shall not be
unreasonably withheld, conditioned or delayed.
60. Exhibits and Addenda. Exhibits as referenced in Paragraph 1.12
are incorporated by reference in this Lease and listed below:
Exhibit "A" - Description of Working Drawings
prepared by Deutsch & Associates, as the
architect of the Lessee, describing the
construction of the Premises, which Working
Drawings shall be initialed by Lessor and
Lessee;
Exhibit "B" - Work Agreement;
Exhibit "C" - Contractor's building and premises construction
specifications;
Exhibit "D" - Hazardous Substances Addendum.
Exhibit "E" - Itemization of Project Costs
61. Definitions. The following capitalized terms as used in the
Lease shall have the definitions set forth below:
(a) "Commencement Date". The date on which Substantial
Completion of the Work occurs.
(b) "Construction Loan". That loan by Guaranty Federal
Bank, F.S.B. to Lessor the proceeds of which shall be used to finance the
initial construction of an office/manufacturing building and other improvements
on the land generally located at the southwest corner of West San Xxxxxx Road
and North Fiesta Boulevard, Gilbert, Arizona as described in the Plans.
(c) "Lease Year". The year commencing on the Commencement
Date and ending on the day immediately preceding the next anniversary of the
Commencement Date, except that if the Commencement Date does not occur on the
first day of a calendar month, then the year commencing on the first day of the
calendar month next succeeding the Commencement Date and ending on the last day
of the twelfth calendar month thereafter.
(d) "Permanent Loan". The long term financing secured by
a deed of trust on the Premises that replaces the Construction Loan.
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(e) "Plans". The plans and specifications referred to in
Exhibits "A" and "C", as hereafter modified from time to time, and, where
applicable, as approved by the City of Gilbert, Arizona.
(f) "Project". The land, buildings, structures, parking
areas, pedestrianways, and other improvements, together with all machinery and
equipment, all as provided in Xxxxxxxx "X", "X" and "C" to this Lease, as
modified or omitted from to time.
(g) "Project Costs". The total cost of land and all
labor, materials, equipment, supplies and other items and services that are
incurred by Lessor and are necessary to the construction of the Project,
including, but not limited to, financing costs, consulting fees, fees for
building permits and other governmental approvals, architectural fees, legal
fees of Lessor incurred in connection with this Lease and the Operating
Agreement of Lessor and other documentation necessary to the formation and
capitalization of Lessor, all as provided on Exhibit "E" to this Lease, as
modified or amended from time to time.
(h) "Substantial Completion" and "Substantially
Complete". The issuance by the City of Gilbert, Arizona of a certificate of
occupancy that allows Lessee to take possession of and use the Premises and the
completion of the Work such that the Premises are suitable and can be occupied
and used by Lessee for the purposes intended, and the completion all of the Work
as provided by the Plans with the exception of punch-list items that do not
impair Lessee's use or occupancy of the Premises.
62. Replacement Provisions. Paragraphs 9 and 14 of the Lease are
deleted in their entirety and replaced with the following provisions,
respectively:
"9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall mean damage
or destruction to the improvements on the Premises, the repair cost of which
damage or destruction is less than 50% of the then Replacement Cost of the
Premises immediately prior to such damage or destruction, excluding from such
calculation the value of the land.
(b) "Premises Total Destruction" shall mean
damage or destruction to the Premises, the repair cost of which damage or
destruction is 50% or more of the then Replacement Cost of the Premises
immediately prior to such damage or destruction, excluding from such calculation
the value of the land.
(c) "Insured Loss" shall mean damage or
destruction to improvements in the Premises, which was caused by an event
required to be covered by the
12
insurance described in Paragraph 8.3(a), irrespective of any deductible amounts
or coverage limits involved.
(d) "Replacement Cost" shall mean the cost to
repair or rebuild the building(s), structure(s) and other improvements owned by
Lessor at the time of the occurrence to their condition existing immediately
prior thereto, including demolition, debris removal and upgrading required by
the operation of applicable building codes, ordinances, or laws, and without
deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean
the occurrence or discovery of a condition involving the presence of, or a
contamination by, a Hazardous Substance as defined in Paragraph 6.2(a), in, on,
or under the Premises.
9.2 Partial Damage--Insured Loss. If a Premises Partial
Damage that is an Insured Loss occurs, Lessor shall, at Lessor's expense, repair
such damage as soon as reasonably possible and this Lease shall continue in full
force and effect; provided, however, that Lessee shall, at Lessor's election,
repair any damage or destruction the total cost to repair of which is $10,000 or
less. The insurance proceeds shall be made available to the party making the
repairs. If the required insurance was not in force or the insurance proceeds
are not sufficient to effect such repairs, Lessee shall promptly contribute the
shortage in proceeds necessary to complete such repairs; provided, however, that
Lessee shall not be required to contribute the shortage in proceeds where such
shortage was due to the fact that, by reason of the unique nature of the
improvements, full replacement cost insurance coverage was not commercially
reasonable or available. If Lessee does not provide the shortage in proceeds
attributable to the unique aspects of the improvements within thirty (30) days
following receipt of written notice and request therefor, Lessor shall not be
required to fully restore the unique aspects of the Premises and Lessor may
terminate this Lease as to such unique aspects of the Premises sixty (60) days
following the occurrence of the damage or destruction. Unless otherwise agreed,
Lessee shall not be entitled to reimbursement from Lessor for any funds
contributed by Lessee to repair any damage or destruction. Premises Partial
Damage due to flood or earthquake shall be subject to Paragraph 9.3 rather than
Paragraph 9.2, but the net proceeds of any insurance shall be made available to
the party making the repairs.
9.3 Partial Damage--Uninsured Loss. If a Premises Partial
Damage that is not an insured loss occurs, Lessor may at Lessor's option,
either: (i) repair such damage as soon as reasonably possible at Lessor's
expense, in which event this Lease shall continue in full force and effect; or
(ii) give written notice to Lessee within thirty (30) days after receipt by
Lessor of knowledge of the occurrence of such damage of Lessor's desire to
terminate this Lease as of the date sixty (60) days following the giving of such
notice. In the event Lessor elects to give such notice of Lessor's intention to
terminate this Lease, Lessee shall have the right within ten (10) days after the
receipt of such notice to give written notice to Lessor of Lessee's commitment
to pay for the repair of such damage
13
totally at Lessee's expense and without reimbursement from Lessor. Lessee shall
provide Lessor with the required funds or satisfactory assurance thereof within
thirty (30) days following Lessee's said commitment. In such event, this Lease
shall continue in full force and effect, and Lessor shall proceed to make such
repairs as soon as reasonably possible, to the extent the funds are available.
If Lessee does not give such notice, and provide the funds or assurance thereof
within the times specified above, this Lease shall terminate as of the date
specified in Lessor's notice of termination.
9.4 Total Destruction. If a Premises Total Destruction
(including any destruction required by any authorized public authority) occurs
prior to the last five (5) years of the term of this Lease, Lessor shall repair
such damage as soon as reasonably possible and this Lease shall continue in full
force and effect. Notwithstanding the foregoing, if the required insurance was
not in force or the insurance proceeds are not sufficient to effect such
repairs, Lessee shall promptly contribute the shortage in proceeds necessary to
complete said repairs; provided, however, that Lessee shall not be required to
contribute the shortage in proceeds where such shortage was due to the fact
that, by reason of the unique nature of the improvements, full replacement cost
insurance coverage was not commercially reasonable or available. If Lessee does
not provide the shortage in proceeds attributable to the unique aspects of the
improvements within thirty (30) days following receipt of written notice and
request therefor, Lessor shall not be required to fully restore the unique
aspects of the Premises and Lessor may terminate this Lease as to such unique
aspects of the Premises sixty (60) days following the occurrence of the
destruction. Notwithstanding any other provision of this Lease, if a Premises
Total Destruction occurs (including any destruction required by any authorized
public authority) during the last five (5) years of the term of this Lease,
Lessor may, at Lessor's option, either: (i) repair such damage as soon as
reasonably possible and this Lease shall continue in full force and effect
(subject to Lessee's right to terminate this Lease pursuant to paragraph 9.4A of
this Lease) or (ii) give written notice to Lessee within ten (10) days of the
Premises Total Destruction of Lessor's desire to terminate this Lease effective
as of the date of such damage or destruction.
9.4A Lessee's Absolute Right to Terminate. If a Premises
Partial Damage or Premises Total Destruction occurs, and the damage or
destruction cannot be fully repaired or replaced within two hundred ten (210)
days of the Premises Partial Damage or Premises Total Destruction, Lessee may,
at Lessee's option, by written notice to Lessor, terminate this Lease effective
as of the date specified by Lessee in the notice to Lessor (but no earlier than
the date of the Premises Partial Damage or Premises Total Destruction). Lessee
shall exercise its option to terminate this Lease pursuant to this Paragraph
within one hundred eighty (180) days after the Premises Partial Damage or
Premises Total Destruction/
9.4B Excess Insurance Proceeds. Lessee shall be entitled
to any insurance proceeds that exceed the cost of repair or restoration of the
Premises.
14
9.5 Abatement of Rent; Lessee's Remedies.
(a) In the event of damage described in
Paragraph 9.2 (Partial Damage-Insured Loss), Paragraph 9.3 (Partial
Damage-Uninsured Loss), or Paragraph 9.4 (Total Destruction) whether or not
Lessor or Lessee repairs or restores the Premises, the Base Rent, Real Premises
Taxes, insurance premiums, and other charges, if any, payable by Lessee
hereunder for the period during which such damage, its repair or the restoration
continues (not to exceed the period for which rental value insurance is required
under Paragraph 8.3(b), shall be abated in proportion to the degree to which
Lessee's use of the Premises is impaired. Except for abatement of Base Rent,
Real Property Taxes, insurance premiums, and other charges, if any, as
aforesaid, all other obligations of Lessee hereunder shall be performed by
Lessee, and Lessee shall have no claim against Lessor for any damage suffered by
reason of any such repair or restoration.
(b) If Lessor shall be obligated to repair or
restore the Premises under the provisions of this paragraph 9 and shall not
commence, in a substantial and meaningful way, the repair or restoration of the
Premises within ninety (90) days after such obligation shall accrue, Lessee may,
at any time prior to the commencement of such repair or restoration, give
written notice to Lessor and to any Lenders of which Lessee has actual notice of
Lessee's election to terminate this Lease on a date not less than sixty (60)
days following the giving of such notice. If Lessee gives such notice to Lessor
and such Lenders and such repair or restoration is not commenced within thirty
(30) days after receipt of such notice, this Lease shall terminate as of the
date specified in said notice. If Lessor or a Lender commences the repair or
restoration of the premises within thirty (30) days after receipt of such
notice, this Lease shall continue in full force and effect. "Commence" as used
in this Paragraph shall mean either the unconditional authorization of the
preparation of the required plans, or the beginning of the actual work on the
Premises whichever first occurs."
"14. Condemnation.
14.1. Condemnation of Entire Premises. If the entire
Premises are taken under the power of eminent domain or sold under the threat of
the exercise of said power, this Lease shall terminate as of the first to occur
of: (i) the date a condemnation decree is entered, or (ii) if condemnation is by
consent decree or sale in lieu of condemnation, the date that such consent
decree or sale becomes effective.
14.2. Condemnation of Less than Entire Premises. If less
than all of the Premises are taken under the power of eminent domain or sold
under the threat of the exercise of said power (a "Partial Taking"), and such
Partial Taking has a material adverse impact on the business of Lessee or
results in the remainder of the Premises being unable to be substantially used
for the purposes intended, then, Lessee, in its discretion, may, by written
notice to Lessor, terminate this Lease as of the date a condemnation decree is
15
entered, or if condemnation is by consent decree or sale in lieu of
condemnation, the date that such consent decree or sale becomes effective.
Lessee's election to terminate shall be made and given to Lessor within one
hundred eighty (180) days after the Partial Taking and shall be effective as of
the date specified by Lessee in the notice of election, but in no event earlier
than the date of Lessee's election to terminate.
14.3. Rent Reduction Upon Partial Taking. Upon the
occurrence of a Partial Taking, the Base Rent shall be adjusted by a fair and
equitable amount taking into account, among other factors, the loss of usable
rental space and the impact of the Partial Taking upon the business and
operations of Lessee. The amount of the reduced Base Rent shall not, in any
event, be greater than the Base Rent then in effect (without giving effect to
the Partial Taking) multiplied by a fraction, the numerator of which is equal to
that portion of the Project Costs attributable to the remainder of the Project
after giving effect to the Partial Taking, and the denominator of which is equal
to the amount of the total Project Costs.
14.4. Award. Subject to the right of a lender to
condemnation proceeds under any mortgage or deed of trust encumbering the
Premises, any award for the taking of all or any part of the Premises under the
power of eminent domain or any payment made under threat of the exercise of such
power shall be the property of Lessor, or as severance damages; provided,
however, that Lessee shall be entitled to any compensation separately awarded to
Lessee for Lessee's damages, including the value of Lessee's interest in this
Lease, Lessee's relocation expenses and/or loss of Lessee's Trade Fixtures. In
the event that this Lease is not terminated by reason of such condemnation,
Lessor shall to the extent of its net severance damages received, over and above
the legal and other expenses incurred by Lessor in the condemnation matter,
repair any damage to the Premises caused by such condemnation, except to the
extent that Lessee has been reimbursed therefor by the condemning authority.
Lessee shall be responsible for the payment of any amount in excess of such net
severance damages required to complete such repair."
LESSOR: LESSEE:
CRPB Investors, L.L.C., an Arizona Cerprobe Corporation, a Delaware
limited liability company corporation
By: X.X. Xxxx & Associates, Inc. By: ___________________________________
Xxxxxx X. Xxxxxx
Its: Managing Member
Its: Chief Financial Officer, Vice
By: _____________________ President and Secretary
Its: ____________________ Date: _________________________________
Date: ____________________________
16
EXHIBIT "A"
DESCRIPTION OF WORKING DRAWINGS
PREPARED BY DEUTSCH & ASSOCIATES
1
EXHIBIT "B"
WORK AGREEMENT
B-1
EXHIBIT "C"
CONTRACTOR'S BUILDING AND PREMISES
CONSTRUCTION SPECIFICATIONS
C-2
EXHIBIT "D"
HAZARDOUS SUBSTANCES ADDENDUM
D-1
EXHIBIT "E"
ITEMIZATION OF PROJECT COSTS
D-2
WHEN RECORDED RETURN TO:
K. Xxxxx Xxxxxxx, Esq.
O'CONNOR, CAVANAGH, ET AL
Xxx Xxxx Xxxxxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
SHORT FORM MEMORANDUM OF LEASE AND PURCHASE OPTION
--------------------------------------------------
THIS SHORT FORM MEMORANDUM OF LEASE AND PURCHASE
OPTION evidences that there is in existence a Lease as hereinafter described. It
is executed by the parties hereto for recording purposes only as to the Lease
hereinafter described, and it is not intended and shall not modify, amend,
supersede or otherwise effect the terms and provisions of said Lease.
1. Name of Document: Standard Industrial/Commercial Single-Tenant
Lease-Net ("Standard Lease")
2. Addendum to Lease: The terms of the Standard Lease are amended
and supplemented by the First Addendum to
Lease executed by the Lessor and Lessee
effective as of the date of the Standard
Lease (the Form Lease and the First Addendum
to Lease are collectively referred to as the
"Lease")
3. Name of Lessor: CRPB INVESTORS, L.L.C., an Arizona limited
liability company
4. Name of Lessee: CERPROBE CORPORATION, a
Delaware corporation
5. Address of Lessor: c/o X.X. Xxxx & Associates, Inc.
0000 Xxxx Xxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxx
6. Address of Lessee: Cerprobe Corporation
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
7. Date of Lease: August 21, 1996
8. Term of Lease: Fifteen (15) years commencing on the
Commencement Date (as defined in the Lease).
9. Option to Extend: Lessee has the option to extend the Lease
Term for seven (7) successive periods of
five (5) years each.
10. Premises: The land, building and improvements more
particularly described on Schedule "A"
attached hereto.
11. Right of First Offer: If Lessor elects to sell the Premises,
Lessee shall have a right of first offer to
purchase the Premises upon and subject to
the terms and conditions described in the
Lease.
12. Option to Purchase: Upon the occurrence of certain events more
particularly described in the Lease, Lessor
grants to Lessee an option to purchase the
Premises upon and subject to the terms
contained in the Lease.
13. Demise of Lease Premises: Lessor leases to Lessee and Lessee accepts
from Lessor the Leased Premises.
A copy of the Lease is on file with Lessor and Lessee at their
respective addresses set forth above.
IN WITNESS WHEREOF, parties have executed this Short Form
Memorandum of Lease this ____ day of August 1996.
LESSEE: LESSOR:
CERPROBE CORPORATION, CRPB INVESTORS, L.L.C., an Arizona
a Delaware corporation limited liability company
By: X.X. Xxxx & Associates, Inc.
Its:Managing Member
By: ______________________________
By: ______________________
Name: Xxxxxx X. Xxxxxx Name: ____________________
Its: _____________________
Its: Chief Financial Officer, Vice
President and Secretary
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this _____
day of August 1996, by Xxxxxx X. Xxxxxx, the Chief Financial Officer, Vice
President and Secretary of Cerprobe Corporation, a Delaware corporation, on
behalf of the corporation.
_____________________________________
Notary Public
My commission expires:
______________________
STATE OF ARIZONA )
) ss.
COUNTY OF MARICOPA )
The foregoing instrument was acknowledged before me this _____
day of August 1996, by ____________________ as ___________________ of X.X. Xxxx
& Associates, Inc., the managing member of CRPB Investors, L.L.C., an Arizona
limited liability company, on behalf of the limited liability company.
______________________________________
Notary Public
My commission expires:
______________________
2
SCHEDULE "A"
------------
LEGAL DESCRIPTION OF LEASED PREMISES
