EXHIBIT 10.6
MASTER LEASE
between
BET INVESTMENTS IV
a Pennsylvania limited partnership
("Landlord")
and
INTEGRATED CIRCUIT SYSTEMS, INC.
a Pennsylvania corporation
("Tenant")
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January 29, 1999
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TABLE OF CONTENTS
Page(s)
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ARTICLE I: Leased Premises ................................................ 1
ARTICLE II: Term .......................................................... 2
ARTICLE III: Rent, Lease Security ......................................... 2
ARTICLE IV: Taxes, Assessments, and Utilities ............................. 4
ARTICLE V: Alterations and Improvements to Premises ....................... 6
ARTICLE VI: Title to Property and Fixtures ................................ 7
ARTICLE VII: Quiet Enjoyment of the Premises .............................. 7
ARTICLE VIII: Use of Premises: Compliance With Laws ....................... 8
ARTICLE IX: Inspection .................................................... 9
ARTICLE X: Maintenance of Premises ........................................ 9
ARTICLE XI: Damage to Premises ............................................ 9
ARTICLE XII: Insurance on Premises ........................................ 10
ARTICLE 13: Liability and Indemnification ................................. 11
ARTICLE XIV: Mechanics' and Other Liens ................................... 12
ARTICLE XV: Signage ....................................................... 13
ARTICLE XVI: Brokerage Commission ......................................... 13
ARTICLE XVII: Environmental Compliance .................................... 13
ARTICLE XVIII: Assignment or Subletting of Premises ....................... 15
ARTICLE XIX: Holding Over ................................................. 15
ARTICLE XX: Surrender of Premises ......................................... 16
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ARTICLE XXI: Condenmation ................................................. 16
ARTICLE XXII: Waiver of Landlord .......................................... 17
ARTICLE XXII: Events of Default by Tenant ................................. 17
ARTICLE XXIV: Landlord's Remedies ......................................... 18
ARTICLE XXV: Landlord's Cure of Default by Tenant;
Reimbursement of Expenses .................................... 21
ARTICLE XXVI: Subordination ............................................... 21
ARTICLE XXVII: Estoppel Certificates ...................................... 22
ARTICLE XXIII: Succession ................................................. 22
ARTICLE XXIX: Notices ..................................................... 23
ARTICLE XXX: No Partnership ............................................... 23
ARTICLE XXXI: No Representations by Landlord .............................. 23
ARTICLE XXXII: Necessary Approvals and Lease Modifications ................ 24
ARTICLE XXXIII: Miscellaneous ............................................. 24
EXHIBIT "A-1": Premises ................................................... 27
EXHIBIT "A-2": Land ....................................................... 28
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BASIC LEASE INFORMATION
The Basic Lease Information is set forth below for the convenience of the
Landlord and Tenant and shall not be deemed to be incorporated into or made a
part of the attached Lease for any reason. In the event of any conflict between
the Basic Lease Information set forth below and the Lease, the Lease shall
control.
Landlord: BET Investments IV, a Pennsylvania limited
partnership
Landlord's Address: 0000 Xxxxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxxx Xxxxxx,
XX 00000
Tenant: Integrated Circuit Systems, Inc., a Pennsylvania
corporation
Tenant's Address: 0000 Xxxxxxxxx xx xxx Xxxxxxxx, Xxxxxxxxxx, XX
Building Address: 0000 Xxxxxxxxx xx xxx Xxxxxxxx, Xxxxxxxxxx, XX
Premises: An Office Building/Laboratory Facility
County: Xxxxxxxxxx
Term: Eight Years
Estimated Commencement Date: March 1, 1999
Actual Commencement Date:
Expiration Date: February 28, 2007 Renewal Option:
Annual Base Rent: Year 1: $610,000 per annum; $50,833.33 per month
Year 2: $628,300 per annum; $52,358.33 per month
Year 3: $647,149 per annum; $53,929.08 per month
Year 4: $666,563 per annum; $55,546.92 per month
Year 5: $686,560 per annum; $57,213.33 per month
Year 6: $707,157 per annum; $58,929.75 per month
Year 7: $728,372 per annum; $60,697.67 per month
Year 8: $750,223 per annum; $62,518.58 per month
Security Deposit: $101,666.66
Rentable Area of the
Premises: Approximately 61,000 Square Feet
MASTER LEASE
This MASTER LEASE (the "Lease") is made this 29th day of January, 1999
between BET Investments IV, a Pennsylvania limited partnership (the "Landlord")
and INTEGRATED CIRCUIT SYSTEMS, Inc. a Pennsylvania corporation (the "Tenant").
BACKGROUND
A. The Landlord and Tenant are parties to an Agreement Of Sale dated
January 15, 1999 whereby the Landlord is purchasing from the Tenant a certain
office building containing approximately sixty one thousand (61,000) rentable
square feet of building, as more particularly described in Exhibit "A-l"
attached hereto (the "Building"), located on certain real property more
particularly described on Exhibit "X-0 " xxxxxxxx xxxxxx (xxx "Xxxx"). The Land
and the Building are collectively referred to herein as the "Premises".
B. Tenant has proposed to lease back the Premises from the Landlord so that
the Tenant may at its election (but subject to the terms set forth herein)
occupy a portion thereof and, subject to the terms of Article 18, sublease
portions of the Premises to other tenants.
C. Landlord and Tenant have agreed to enter into this Lease which will set
forth the rights and obligations of Landlord and Tenant regarding the use and
occupancy of the Premises as of the date hereof.
AGREEMENT
NOW THEREFORE, in consideration of the rent hereafter to be paid and the
mutual covenants and agreements contained herein, Landlord and Tenant, intending
to be legally bound, hereby covenant and agree as follows:
ARTICLE I: Leased Premises
Section 1.1. Landlord does hereby lease and demise unto Tenant and Tenant
does hereby rent from Landlord, subject to the terms and conditions of this
Lease, the Premises, together with all rights, privileges, easements, existing
leasehold interests and appurtenances thereto, including, but not limited to,
the right to use at all times the common entrance ways, lobbies and elevators,
and all of the improvements, fixtures, and equipment therein located and the
right to collect rent from existing leases and subleases of the Premises and
otherwise master lease the Premises in accordance with the terms set forth
herein.
Section 1.2. Tenant and Tenant's agents, employees and invitees shall have
the right to use at all times, in common with all others granted such rights by
Landlord or Tenant, pursuant to a sublease executed by Tenant, in a proper and
lawful manner, the common sidewalks, access roads and parking facilities located
upon the Land.
ARTICLE II: Term
Section 2.1. This Lease shall be for a term of eight (8) years commencing
on the Commencement Date (as defined below) and ending on that date which is the
last day
of the ninety sixth (96th) month following the Commencement Date (the
"Termination Date"), unless sooner terminated or extended in accordance with the
terms of this Lease (the "Initial Term"). The Initial Term shall commence the
later of March 1, 1999 or the settlement date of the Agreement of Sale for the
Premises dated January 15, 1999, between the parties (the "Commencement Date").
In the event the Agreement or Sale is terminated or breached by either party so
as to preclude closing of the Agreement of Sale, this Lease shall also terminate
simultaneously.
Section 2.2. Upon the expiration of the Initial Term, provided that Tenant
is not then in default beyond any applicable cure period under this Lease,
Tenant may renew the Initial Term for one (1) renewal term of three (3) years
(the "Renewal Term"). Tenant may exercise its option to renew the Initial Term
by giving Landlord written notice of Tenant's intent to renew not more than
twelve (12) months and not less than nine (9) months prior to the Termination
Date. The Renewal Term shall be on the same terms and conditions set forth
herein, except that Base Rent (as defined below) for the Renewal Term shall be
as set forth in Section 3.2 hereof The Initial Term and the Renewal Term are
hereinafter collectively referred to as the "Term."
Upon the commencement of the Renewal Term (if any), Landlord shall, at its
expense, provide new paint and carpet for the Premises (of the same or similar
quality to that which presently exists in the Premises). The new carpet
installed by Landlord pursuant to the preceding sentence shall remain the
property of Landlord and shall not be removable by Tenant at the expiration of
the Term.
ARTICLE III: Rent, Lease Security
Section 3.1. During the Initial Term, Tenant shall pay annual base rent
("Base Rent") as follows:
(a) During the first year of the Initial Term, Tenant shall pay to
Landlord the Base Rent of Year 1: $610,000 per annum; $50,833.33 per month;
(b) During the second year of the Initial Term, Tenant shall pay to
Landlord the Base Rent of $628,300 per annum; $52,358.33 per month.
(c) During the third year of the Initial Term, Tenant shall pay to
Landlord the Base Rent of $647,149 per annum; $53,929.08 per month.
(d) During the fourth year of the Initial Term, Tenant shall pay to
Landlord the Base Rent of $666,563 per annum; $55,546.92 per month.
(e) During the fifth year of the Initial Term, Tenant shall pay to
Landlord the Base Rent of $686,560 per annum; $57,213.33 per month.
(f) During the sixth year of the Initial Term, Tenant shall pay to
Landlord the Base Rent of $707,157 per annum; $58,929.75 per month.
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(g) During the seventh year of the Initial Term, Tenant shall pay to
Landlord the Base Rent of $728,372 per annum; $60,697.67 per month.
(h) During the eighth year of the Initial Term, Tenant shall pay to
Landlord the Base Rent of $750,223 per annum; $62,518.58 per month.
Section 3.2. The Base Rent during the Renewal Term shall be as follows:
(a) During the first year of the Renewal Term, Tenant shall pay to
Landlord the Base Rent of: $772,729.69 per annum; $64,394.14 per month;
(b) During the second year of the Renewal Term, Tenant shall pay to
Landlord the Base Rent of $795,911.58 per annum; $66,325.97 per month.
(c) During the third year of the Renewal Term, Tenant shall pay to
Landlord the Base Rent of $819,788.93 per annum; $68,315.74 per month.
Section 3.3. Each monthly installment of Base Rent shall be due and
payable, without notice or demand, in advance on or before the first day of each
calendar month during the Term. The Base Rent for any portion of a calendar
month at the commencement of the Term shall be prorated and paid on the
Commencement Date. Base Rent for any partial month shall be prorated at the rate
of one thirtieth of the monthly minimum annual rent per day.
Section 3.4. In addition to the Base Rent to be paid by Tenant to Landlord
as provided above, Tenant shall pay to Landlord as additional rent hereunder all
such sums as are due and payable by Tenant to Landlord pursuant to the terms of
this Lease, and the failure of Tenant to pay any sums to Landlord required
hereunder shall be deemed as a failure to pay Base Rent and shall entitle
Landlord to pursue such remedies as are hereafter provided with regard to the
failure to pay Base Rent.
Section 3.5. Tenant shall, upon execution of this Lease, deposit with
Landlord as security for the performance of all the terms, covenants, and
conditions of this Lease, the sum of One Hundred One Thousand Six Hundred Sixty
Six and 66/100 Dollars ($101,666.66). This deposit is to be retained by Landlord
until the expiration or earlier termination of this Lease and shall be
returnable to Tenant within sixty (60) days after the expiration of the Lease,
without interest, provided that (a) the Premises have been vacated, (b) Landlord
shall have inspected the Premises after such vacation and found the Premises to
be in a broom-clean and orderly condition, (c) Tenant shall have complied with
all the terms, covenants and conditions of this Lease and (d) Tenant shall have
notified Landlord, in writing, of its forwarding address. If any of the
conditions of the preceding sentence have not been satisfied by Tenant, the sum
deposited hereunder or any part thereof, up to the amount of the actual loss,
may be retained by Landlord at its option, or may be applied by Landlord against
any actual loss, damage or injury chargeable to Tenant hereunder or otherwise,
if Landlord determines that such loss, damage or injury exceeds said sum
deposited. It is understood by the parties that the said
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deposit is not to be considered as a prepayment of the Base Rent or a limit on
Tenant's liability under the Lease or liquidated damages.
Section 3.6. (a) Landlord requires as a condition to its execution of the
Lease, that Tenant provide to Landlord a current financial statement of Tenant
available to the pubic (if applicable) prepared and certified by an independent
certified accountant in accordance with generally accepted accounting
principles, consistently applied, including a balance sheet and income and
expense statement in reasonable detail and stating in comparative form the
figures as at the end of and for the previous fiscal year. Tenant shall maintain
a minimum "Liquidity Ratio" (Cash and Accounts Receivable divided by Accounts
Payable) of 1.2:1 as reported on a quarterly basis. As reported on a yearly
basis, the Tenant shall maintain a ratio or EBIDA to interest charges of 2:1.
(b) From time to time during the Term of the Lease, Tenant shall furnish
financial statements to Landlord in accordance with the following provisions:
(i) Within sixty (60) days after the fiscal year, Tenant shall provide
to Landlord the current financial statement of Tenant available to the
pubic (if applicable) prepared and certified by an independent certified
accountant in accordance with generally accepted accounting principles,
consistently applied, including a balance sheet and income and expense
statement in reasonable detail and stating in comparative form the figures
as at the end of and for the previous fiscal year.
ARTICLE IV: Taxes, Assessments, and Utilities
Section 4.1. Except as otherwise provided herein, Tenant shall pay when due
(a) all charges for all utilities (including gas and electricity) furnished to
and consumed in the operation and use of the Premises ("Utility Charges"); (b)
water rents or rates and sewerage charges ("Water Charges"); and (c) similar
charges of all kinds levied, assessed, or imposed or to be levied, assessed, or
imposed on or against the Premises. In the event that any Utility Charges or
Water Charges are billed directly to the Landlord, or collection or payment of
such charges is to be made by Landlord, Tenant shall pay Such Utility Charges or
Water Charges within ten (10) days of written demand of Landlord. The Tenant
shall have the right to request copies of all back-up documentation in such case
supporting the charge.
Section 4.2. Tenant shall pay all personal property taxes, and all business
taxes, use and occupancy taxes, licenses and fees now or hereafter levied or
imposed by any governmental authority upon the Premises or the business
operations and activities of Tenant. In the event that any such taxes are
enacted, changed or altered so that any of such taxes are levied against
Landlord, or the mode of payment of such taxes is changed so that Landlord is
responsible for collection or payment of such taxes, Tenant shall pay such taxes
within fifteen (15) days of written demand from Landlord.
Section 4.3. Tenant shall pay as additional rent all taxes, assessments,
levies
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and other charges which are assessed, levied or charged upon the Premises
(including the Land), less any abatement ("Real Estate Taxes'). Real Estate
Taxes shall not include (a) any interest or penalties caused by the acts or
omissions of the Landlord or Landlord's partners, agents of employees; (b) any
capital levy, estate, succession, inheritance, transfer, sales, use or franchise
taxes, or any income, profits, or revenue tax, assessment or charge imposed upon
the rent received as such by the Landlord under this Lease. Tenant shall
promptly reimburse Landlord for payment of such Real Estate Taxes within fifteen
(15) days of written demand, and receipt of payment, from Landlord.
Section 4.4. Landlord shall in no event be liable for any interruption or
failure of utility services or other services on the Premises unless such
interruption or failure is due to the negligence or willful act or omission of
Landlord or Landlord's partners, agents or employees. Tenant shall furnish all
replacement electric light bulbs and tubes.
Section 4.5. Subject to the conditions and provisions hereafter stated,
Tenant may, at the sole cost and expense of Tenant, contest in good faith the
validity of any Real Estate Taxes, Utility Charges, Water Charges or other
similar charges, assessments, or public dues and, subject to the conditions and
provisions hereafter stated, may defer the payment of such of them as may be so
contested until such contest is finally determined; provided however, that in
any and all such proceedings Tenant shall protect and save harmless Landlord
from all attorneys' fees, costs, and damages resulting from any such proceedings
or from the failure of Tenant to make any such payments, and Tenant shall
immediately, upon the termination of such proceedings, pay all such Real Estate
Taxes, Utility Charges, Water Charges or other similar charges or public dues,
and any and all damages, interest, penalties, costs, and expenses arising
therefrom that may be adjudged to be a charge against the Premises. During the
time that any such Real Estate Taxes, Utility Charges, Water Charges or other
similar charges, assessments or public dues are being so contested in good faith
by Tenant, and provided Landlord is notified in writing thereof and is
thereafter kept fully informed as to the outcome of the various stages of any
such contest, Landlord shall have no right, except as hereafter stated, to pay
the same; provided, however, that if Landlord shall so request, Tenant shall pay
such Real Estate Taxes, Utility Charges, Water Charges or other similar charges,
assessments or public dues prior to the imposition of interest or penalty
thereon. Landlord agrees to cooperate with Tenant to such extent as Tenant shall
reasonably request in any such contested proceeding.
Section 4.6. Notwithstanding anything contained or implied in this Article
4 to the contrary, Tenant shall not permit the Premises, or any part thereof, to
be sold, offered for sale, or advertised for sale because of nonpayment of any
such Real Estate Taxes, Utility Charges, Water Charges or other similar charges,
assessments or public dues, even though the foregoing may then be in course of
being contested as aforesaid. In the event of any such offering for sale or
advertisement of sale of the Premises, by reason of any such nonpayment thereof,
Tenant shall forthwith pay said Real Estate Taxes, Utility Charges, Water
Charges or other similar charges, assessments or public dues, together with
interest, penalties, and costs, and such other acts as are reasonably necessary
to have the offering for sale or advertisement of sale withdrawn and terminated.
In the event
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Tenant fails to comply with Tenant's obligations as set forth herein, then
Landlord may upon written notice to Tenant pay said Real Estate Taxes, Utility
Charges, Water Charges or other similar charges, assessments or public dues,
together with interest, penalties, and costs, and do whatever else may be
necessary to have the offering for sale or advertisement of sale withdrawn and
terminated, all without any duty or obligation on the part of Landlord to
inquire into the validity or legality hereof, and Tenant shall immediately
reimburse Landlord forthwith upon demand for the amount so paid by Landlord and
for all other costs, reasonable attorney fees, expenses, and damages incurred by
Landlord in connection therewith, all of which shall be additional rent due by
Tenant to Landlord.
Section 4.7. Nothing contained in this Lease shall require Tenant to pay
any franchise tax or any income, profit, estate, inheritance, succession, or
capital levy assessed against or payable by Landlord, which taxes shall be the
responsibility of Landlord.
ARTICLE V: Alterations and Improvements to Premises
Section 5.1. Tenant shall accept the Premises in their current "as is",
"where is", with all faults condition, Landlord having no obligation to make any
improvements to the Premises of any kind whatsoever, subject to the provisions
of Article X.
Section 5.2. During the Term, Tenant may make interior improvements,
alterations or additions to the Premises (hereinafter collectively referred to
as the "Leasehold Improvements") without the consent of the Landlord (including,
but not limited to, the installation of furniture, fixtures and equipment),
provided that exterior or structural improvements, alterations and additions
shall be made only with the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed. For purposes hereof,
"structural improvements" shall include replacements, alterations or additions
to the Premises materially affecting the roof, exterior walls, bearing walls,
support beams and foundation columns. If Tenant makes any Leasehold
Improvements, Tenant agrees to:
(a) comply with all insurance requirements and all laws, ordinances,
rules and regulations of all governmental authorities, provided that
Landlord shall cooperate with Tenant in securing any necessary permits, the
cost for such permits to be borne by Tenant;
(b) discharge by payment, bond or otherwise (determined in Tenant's
sole discretion), any mechanics' lien filed against the Premises (of which
Tenant has written notice) for work, labor, services or materials performed
at or furnished to the Premises on behalf of Tenant; and
(c) furnish Landlord with plans of such improvements, alterations or
additions.
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Section 5.3. At Tenant's sole cost and expense, Tenant shall have the right
to introduce into the Premises such other utilities as Tenant might require and
Tenant shall pay the cost of such other utilities directly to the applicable
utility companies.
ARTICLE VI: Title to Property and Fixtures
Section 6.1. All non-real estate fixtures, equipment and apparatus of any
kind or nature whatsoever installed by Tenant in the Premises shall remain the
property of Tenant and shall be removable from time to time prior to the
expiration of the Term. Any damage done to the Premises by the removal of such
property shall be repaired prior to the Termination Date at Tenant's cost and
expense.
Section 6.2. All personal property in the Premises shall be and remain at
Tenant's sole risk. Landlord shall not be liable for loss or damage to personal
property of Tenant or others arising from theft, fire, explosion, bursting,
overflowing, or leaking of the roof or of water, sewer, or steam pipes, or from
heating or plumbing fixtures or from electric wires or fixtures or from any
other cause whatsoever, unless such damage shall be caused by the negligence or
willful act or omission of Landlord or Landlord's agents or employees.
ARTICLE VII: Quiet Enjoyment of the Premises
Section 7.1. Landlord represents and warrants that Landlord is the owner of
the Premises and that Landlord has the full right and authority to lease such
Premises. So long as Tenant is not in default of Tenant's obligations under this
Lease for which it has received written notice, Tenant shall enjoy the peaceful
and quiet use and possession of the Premises, and Landlord shall warrant and
defend Tenant in such peaceful and quiet use and possession against the claims
of all persons claiming by, through, or under Landlord.
ARTICLE VIII: Use of Premises: Compliance With Laws
Section 8.1. The Premises shall be used only for general office,
laboratory, research and light manufacturing uses and for such related uses
consistent with the provisions hereof and the applicable zoning and use
regulations.
Section 8.2. Tenant shall, at Tenant's sole expense, subject to the
provisions of Article X promptly comply with all governmental laws, ordinances,
and regulations applicable to the use of the Premises and Tenant shall obtain,
at Tenant's own expense, all permits, licenses, and approvals required by any
federal, state or local governmental authority, relating to the Premises. Tenant
shall indemnify and hold Landlord harmless from all penalties, claims, or
demands by any governmental authority resulting from Tenant's failure to comply
with this section.
Section 8.3. Tenant shall not permit any objectionable or unpleasant odors,
smoke, dust, gas, noise, or vibrations to emanate from the Premises, nor take
any action that would constitute a nuisance to occupants of neighboring property
or unreasonably interfere with their use of their premises or property. Tenant
shall not permit the
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Premises to be used for any purpose or in any manner (including, without
limitation, any method of storage) that would (a) violate any local fire laws or
regulations or (b) render the insurance thereon void, or (c) increase the
premiums payable for insurance, unless Tenant agrees and actually pays for such
increased premiums. Tenant shall be fully liable for any increase in insurance
premiums or voiding of insurance caused by Tenant's acts. Landlord shall be
fully liable for any increase in insurance premiums or voiding of insurance
caused by Landlord's acts. Landlord hereby acknowledges that the Tenant's
intended use of the Premises as an office/lab/light manufacturing space using
non-combustible materials, does not violate subsections (a), (b) or (c) of this
section.
Section 8.4. Tenant shall have the right to contest the legality of laws,
ordinances, rules, regulations, and requirements (including, but not limited to,
the right to seek a zoning variance or change in zoning) affecting the Premises
and to postpone compliance with the same provided such contest shall be prompt
and diligently prosecuted by and at the expense of Tenant, and Tenant shall
protect and save Landlord harmless from any liability and claims for any such
noncompliance or postponement of compliance.
Section 8.5. Without limiting the generality of the foregoing, Tenant
shall, at Tenant's expense, subject to the Provisions of Article X, (i) maintain
the common areas of the Premises and construct all alteration and improvements
in compliance with the Americans with Disabilities Act of 1990 (as amended), the
Federal Occupational Safety and Health Act of 1970 (as amended) and all
regulations or standards as are or may be promulgated thereunder; and (ii)
procure each and every permit, license, certificate, or other authorization now
or hereafter required in connection with the lawful and proper use of the
Premises in connection with its business.
ARTICLE IX: Inspection
Section 9.1. Landlord or any agents or employees of Landlord shall have the
right to enter and inspect the Premises at any reasonable time during business
hours for the purpose of ascertaining the condition of the Premises. In making
any entry or inspection provided hereunder, Landlord shall use all commercially
reasonable efforts to protect Tenant's property and personnel from loss and
injury and to avoid interfering with the conduct of Tenant's business. Except in
the case of an emergency, the Landlord shall give the Tenant twenty four (24)
hours notice prior to entering the Premises and Landlord shall be accompanied by
a representative of the Tenant during such inspection. Landlord shall not reveal
any trade secrets disclosed during such inspection.
ARTICLE X: Maintenance of Premises
Section 10.1. Tenant shall keep the entire Premises and Land, including all
improvements thereon, together with all electrical, plumbing, and other
mechanical installations therein, in good order and repair at Tenant's own
expense. Tenant shall maintain the Premises at Tenant's own expense in a clean,
orderly, and sanitary condition
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and free of insects, rodents, vermin, and other pests. Tenant shall not permit
undue accumulation of garbage, trash, rubbish, and refuse, and shall remove the
same at Tenant's own expense. Tenant shall keep the Land in a neat, orderly
fashion (including, without limitation, upkeep of the landscaping, sidewalks
and parking areas, if any, on the Land) and shall remove all snow and ice
therefrom. Tenant acknowledges that any and all costs relating to the
maintenance, cleaning, operation and use of the Premises and the Land shall be
at Tenant's own expense.
Section 10.2. Notwithstanding the provisions of section 10.1 above,
Landlord shall be responsible for maintaining the structure of the Premises.
ARTICLE XI: Damage to Premises
Section 11.1. In the event that any portion of the Premises is damaged by
fire or other casualty, then, except as provided below, the damage shall be
promptly repaired by and at the expense of Tenant; and the Base Rent and
additional rent, as appropriate, shall xxxxx for any portion of the Premises
which is rendered uninhabitable.
Section 11.2. If such damage occurs during the last twelve (12) months of
the Term or if Landlord obtains a reasonable professional estimate that the cost
of restoring the building would exceed twenty (20%) of the full insurable value
of the Building immediately prior to such fire or other casualty, then either
Landlord or Tenant may, by giving notice to the other within sixty (60) days
after such fire or other casualty, terminate this Lease without incurring any
liability to the other. Landlord shall inform Tenant within thirty (30) days of
such fire or other casualty of any decision by a mortgagee that such mortgagee
will not permit insurance proceeds to be used to repair all or any portion of
the damage. In the event that such mortgagee will not permit insurance proceeds
to be used to repair the damage, and Landlord does not intend to use its own
funds to repair such damage, either Landlord or Tenant may, by giving notice to
the other within thirty (30) days after Landlord has informed tenant of such
mortgagee's position and the Landlord's position, terminate this Lease without
incurring any liability to the other, except that Tenant shall pay all insurance
proceeds in connection with the Building over to the Landlord or the Landlord's
mortgagee as the case may be. If neither party so terminates this Lease, Tenant
shall use reasonable efforts to repair the Building (and the Premises, if
damaged) with reasonable dispatch, allowing for the adjustment and settlement of
insurance claims, the preparation of plans and specifications, the obtaining of
governmental approvals and certificates, the obtaining of contractors and
laborers and any other daily.
Section 11.3. Tenant shall be entitled to a rent abatement only to the
extent that a portion of the Premises is rendered untenantable because of a fire
or Other casualty and only until Landlord notifies tenant that the damages
thereto have been substantially repaired.
Section 11.4. Landlord and Tenant do each hereby release and discharge
the other party and any partner, officer, agent, employee or representative of
such party from any liability for loss or damage to property on the Premises
caused by fire or other
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casualty for which insurance (containing waiver of subrogation) is required to
be carried by either party under the terms of this Lease.
ARTICLE XII: Insurance on Premises
Section 12.1. Tenant shall maintain, at its expense, with an
insurer(s) reasonably acceptable to Landlord:
(a) standard Commercial General Liability Insurance. The limits of
liability of such insurance shall be an amount not less than Two Million
Dollars ($2,000,000) per occurrence, Personal Injury including death and
dismemberment of not less than Two Million Dollars ($2,000,000) per
occurrence, Property Damage Liability of not less than Two Million Dollars
($2,000,000) combined single limit for Personal Injury and Property Damage
Liability. Such policies shall name Landlord and any mortgagee as
additional insured;
(b) "all risk" property insurance on the Premises insuring one hundred
percent (100%) of the replacement value thereof; and
(c) "all risk" property insurance on Tenant's personal property
including furniture and furnishings or any fixtures or equipment removable
by Tenant under this Lease. This insurance shall include fire and extended
coverage perils.
Section 12.2. At Tenant's option, Tenant may provide the coverages required
under this Article 12 through blanket policies of insurance covering Tenant's
other properties or Tenant may self-insure. Tenant shall deliver a certificate
of insurance evidencing the coverages (or such other evidence as Landlord may
reasonably request) on or prior to the Commencement Date, and at such other
time, within thirty (30) days of Landlord's written request. Each policy shall
provide that Landlord and any mortgage holder shall receive at least ten (10)
days prior written notice of cancellation, material alteration or non-renewal of
the policy.
Section 12.3 The property to be insured by Tenant pursuant to Section
12.1(b) shall also include all improvements in the Premises, but shall not
include Tenant's furniture and furnishings or any fixtures or equipment
removable by Tenant under the provisions of this Lease. Such policies shall name
Landlord as an additional insured as its interests appear and shall, at the
written request of Landlord, name any mortgage holder as additional loss payee,
as its interests may appear.
ARTICLE 13: Liability and Indemnification
Section 13.1. Tenant shall defend and indemnify Landlord and save Landlord
harmless from and against any and all losses, claims, liability, expenses and
damages (other than consequential damages) which, either directly or indirectly,
in whole or in part, arise out of or result from (i) the negligence or willful
misconduct of Tenant, or Tenant's agents, contractors or employees; (ii) any act
or occurrence in the Premises,
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unless caused by the negligence or willful misconduct of Landlord, its agents,
contractors or employees; (iii) judgments, citations, fines or other penalties
rendered or assessed against Landlord (with the exception of any claims under
any worker's compensation laws) as a result of Tenant's failure to comply with
all federal, state and local laws, safety and health regulations relating to
Tenant's specific use of the Premises, provided that Landlord agrees to give
Tenant prompt notice of any such violation asserted by any government agency;
and (iv) the breach of any provision of this Lease by Tenant, its agents,
contractors or employees.
Section l3.2. Landlord shall defend and indemnify Tenant and save Tenant
harmless from and against any and all losses, claims, liability, expenses and
damages (other than consequential damages) which, either directly or indirectly,
in whole or in part, arise out of or result from (i) the negligence or willful
misconduct of Landlord, or Landlord's agents, contractors or employees; (ii)
judgments, citations, fines or other penalties rendered or assessed against
Tenant (with the exception of any claims under any worker's compensation laws)
as a result of Landlord's failure to comply with all federal, state and local
laws, safety and health regulations relating to Landlord's specific use of the
building of which the Premises are a part, provided that Tenant agrees to give
Landlord prompt notice of any such violation asserted by any government agency;
and (iii) the breach of any provision of this Lease by Landlord, its agents,
contractors or employees.
Section 13.3. The liability of Landlord and/or Landlord's Affiliates to
Tenant or anyone claiming by or through Tenant shall be limited to Landlord's
interest in the Premises. The foregoing shall be absolute and without exception
whatsoever. The term "Landlord's Affiliates" shall mean any entity affiliated
with Landlord through common ownership, Landlord's property manager and their
respective partners, officers, directors, equity members, employees, agents,
contractors and subcontractors. Without limiting the generality of the
foregoing, in no event shall the Landlord or Tenant be liable to the other for
indirect or consequential damages or for loss of business or loss of profits.
Under no circumstances shall any of the partners, directors, officers, employees
or shareholders of Landlord or Tenant, from time to time, have any personal
liability whatsoever hereunder.
Section 13.4. Nothing in this Article 13 is intended to require
indemnification for any property claim for which insurance is required to be
maintained under the terms of this Lease. The rights and obligations of Landlord
and Tenant under this Article 13 shall survive the expiration or earlier
termination of this Lease.
ARTICLE XIV: Mechanics' and Other Liens
Section 14.1.Tenant covenants and agrees to keep all of the Premises and
every part there and the building and other improvements thereon free and clear
of and from any and all mechanics', materialmens', and other liens for work or
labor done, services performed, materials, appliances, or power contributed,
used, or furnished to be used in or about the Premises for or in connection with
any operations of Tenant, any alteration, improvement, or
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repairs or additions that Tenant may make or permit or cause to be made, or any
work or construction by, for, or permitted by Tenant on or about the Premises,
and at all times reasonably promptly and fully to pay and discharge any and all
claims, upon which any such lien may or could be based, and to save and hold
Landlord and all of the Premises free and harmless of and from any and all such
liens and claims of liens and suits or other proceedings pertaining thereto.
Section 14.2. Landlord covenants and agrees to keep the building of which
the Premises are a part and other improvements thereon free and clear of and
from any and all mechanics', materialmens', and other liens for work or labor
done, services performed, materials, appliances, or power contributed, used, or
furnished to be used in or about the building for or in connection with any
operations of Landlord, any alteration, improvement, or repairs or additions
that Landlord may make or permit or cause to be made, or any work or
construction by, for, or permitted by Landlord on or about the building, and at
all times promptly and fully to pay and discharge any and all claims, upon which
any such lien may or could be based, and to save and hold Tenant and the
building free and harmless of and from any and all such liens and claims of
liens and suits or other proceedings pertaining thereto.
ARTICLE XV: Signage
Section 15.1. Tenant shall have the right to make such changes in the
signage identifying the Premises as Tenant deems necessary in Tenant's
reasonable discretion.
ARTICLE XVI: Brokerage Commission
Section 16.1 Tenant and Landlord each represents and warrants to the other
that it has not dealt with any broker or agent in the negotiation for or the
obtaining of this Lease. Tenant and Landlord each agrees to indemnify, defend
and hold the other harmless from any and all cost (including, without
limitation, all attorneys' fees and related costs) or liability for compensation
arising from a breach of the above representation.
ARTICLE XVII: Environmental Compliance
Section 17.1. Tenant shall comply with any applicable federal, state,
county, regional or local statutes, laws, regulations, rules, ordinances, codes,
standards, orders, licenses and permits of any governmental authorities relating
to environmental, health or safety matters (including, without limitation,
Hazardous Materials, as defined in Section 17.2 below) (collectively,
"Environmental Laws"). Tenant shall, at its own expense, promptly observe and
comply with all present and future Environmental Laws relating to its past
ongoing or future activities on the Premises.
Section 17.2. Without limiting the generality of Section 17.1, Tenant shall
not transport, use, store, maintain, generate, manufacture, handle, dispose,
release or discharge any "Hazardous Materials" (as defined below) upon or about
the Premises, nor permit Tenant's employees, agents, contractors, and other
occupants of the Premises to
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engage in such activities upon or about the Property. However, the foregoing
provisions shall not prohibit the transportation to and from, and use, storage,
maintenance and handling within, the Premises of substances customarily used in
offices (or such other business or activity expressly permitted to be undertaken
in the Premises under Article 8); provided that such substances shall be used
and maintained only in such quantities as are reasonably necessary for such
permitted use of the Premises, strictly in accordance with applicable law and
the manufacturers' instructions thereto, and any remaining such substances shall
be completely, properly and lawfully removed from the Premises upon expiration
or earlier termination of this Lease.
Tenant shall promptly notify Landlord of (a) any enforcement, cleanup or
other regulatory action taken or threatened by any governmental or regulatory
authority with respect to the presence of any Hazardous Materials on the
Premises or the migration thereof from or to other property, (b) any demands or
claims made or threatened by any party against Tenant or the Premises relating
to any loss or injury resulting from any Hazardous Materials, (c) any release,
discharge or non-routine, improper or unlawful disposal or transportation of any
Hazardous Materials on or from the Premises, and (d) any matters where Tenant is
required by law to give a notice to any governmental regulatory authority
respecting any Hazardous Materials on the Premises. Landlord shall have the
right (but not the obligation) to join and participate, as a party, in any legal
proceedings or actions affecting the Premises initiated in connection with any
environmental, health or safety law. At such times as Landlord may reasonably
request, Tenant shall provide Landlord with a written list identifying any
Hazardous Materials then used, stored, or maintained upon the Premises, the use
and approximate quantity of each such material, a copy of any material safety
data sheet ("MSDS") issued by the manufacturer therefor, written information
concerning the removal, transportation and disposal of the same, and such other
information as Landlord may reasonably require or as may be required by law. The
term "Hazardous Materials" as used herein, means any chemical, substance,
material or waste or component thereof which is now or hereafter listed, defined
or regulated as a hazardous toxic chemical, substance, material or waste or
component thereof by any federal, state or local governing or regulatory body
having jurisdiction, or which would trigger any employee or community
"right-to-know" requirements adopted by any such body, for which any such body
has adopted any requirements for the preparation or distribution of an MSDS.
If any Hazardous Materials are released, discharged or disposed of by
Tenant or any other occupant of the Premises, or their employees, agents or
contractors, on or about the Premises in violation of the foregoing provisions,
Tenant shall immediately, properly and in compliance with applicable laws clean
up and remove the Hazardous Materials from the Premises and any other affected
property and clean or replace any affected personal property (whether or not
owned by Landlord), at Tenant's expense. Such clean up and removal work shall be
subject to Landlord's prior written approval (except in emergencies), and shall
include, without limitation, any testing, investigation, and the preparation and
implementation of any remedial action plan required by any governmental body
having jurisdiction or reasonably required by
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Landlord. If Tenant shall fail to comply with the provisions of this Article
within five (5) days after written notice by Landlord, or such shorter time as
may be required by law or in order to minimize any hazard to persons or
property, Landlord may (but shall not be obligated to) arrange for such
compliance directly or as Tenant's agent through contractors or other parties
selected by Landlord, at Tenant's expense (without limiting Landlord's other
remedies under this Lease or applicable law).
Section 17.3. The parties shall indemnify, defend and hold harmless each
other and their respective partners, employees and agents, and any successors
interest in the Premises, their directors, officers, employees and agents from
and against any and all loses, claims, damages, penalties and liability,
including all out-of-pocket litigation costs and reasonable attorneys' fees
arising out of the use, generation, storage, release or disposal of Hazardous
Materials by either party.
Section 17.4. The representations contained in this Article 17 shall
survive the expiration or earlier termination of this Lease.
ARTICLE XVIII: Assignment or Subletting of Premises
Section 18.1. Subletting. Tenant shall have the right to sublet all or any
portion of the Premises or grant licenses therein, without the consent of Land-
lord, provided (i) Tenant is not in default of the Lease beyond any applicable
cure period; (ii) Tenant provides Landlord with prior written notice of the
sublease or license, at least thirty (30) days prior to the commencement date of
the proposed sublease or license; (iii) Tenant delivers to Landlord an executed
copy of the sublease or license within fifteen days (15) of the commencement
date of the sublease or license; and (iv) Tenant remains liable to Landlord for
the obligations of Tenant under the Lease.
Section 18.2. Assignment. Tenant shall not be permitted to assign this
Lease, without the prior written consent of Landlord, which consent shall not be
unreasonably withheld or conditioned. For purposes of this Lease, an assignment
shall not include any assignment to a parent, subsidiary or affiliate of Tenant,
or a transfer by merger, acquisition, sale, or transfer of substantially all of
its assets or operation of laws, provided that the surviving entity meets the
requirements set forth in Section 3.6 of the Lease and Tenant is not in default
of the Lease.
Section 18.3. Estoppels and Nondisturbance for Subtenant. Landlord shall,
at Tenant's reasonable request, within twenty (20) days of such request, (i)
provide Tenant with an estoppel certificate stating whether Landlord knows of
any defaults under this Lease at the time of any proposed subletting or
assignment; and (ii) provide to any subtenant to Tenant an agreement in
recordable form stating that Landlord will not disturb the possession of such
subtenant due to an early termination of this Lease.
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ARTICLE XIX: Holding Over
Section 19.1. If Tenant shall hold over after the expiration of the Term,
the tenancy shall be (i) on a month-to-month basis and shall be subject to all
of the terms, conditions, provisions and obligations of this Lease, except that,
commencing immediately following the expiration of the Term, each monthly
installment of Base Rent shall be one hundred twenty five percent (125%) of the
monthly Base Rent installment that applied to the last month of the Term and
(ii) deemed on Event of Default hereunder. In the event that the Tenant gives
the Landlord six (6) months prior written notice, it shall be permitted to hold
over for six (6) months after the expiration of the Term at a rental rate equal
to one hundred ten percent (110%) of the rent that is in effect prior to the
expiration of the Term.
ARTICLE XX: Surrender of Premises
Section 20.1. Upon the expiration or earlier termination of this Lease,
Tenant shall surrender the Premises in substantially as good condition as on the
Commencement Date except for loss or damages resulting from casualty,
condemnation, acts of God, ordinary wear and tear and such improvements,
alterations or additions made to the Premises as Tenant shall elect to
surrender. In the event any damage is done to the Premises in the removal of
Tenant's personal property from the Premises, Tenant shall promptly reimburse
Landlord for the reasonable cost of such repairs as are necessary to restore the
Premises to their original condition. Any furniture, fixtures, and machinery not
so removed upon expiration of this Lease or any extension thereof shall be
deemed to have been abandoned by Tenant and shall become Landlord's property.
ARTICLE XXI: Condemnation
Section 21.1. In the event that the whole or a substantial portion of the
Premises shall be taken under the power of eminent domain by any public or
quasi-public authority so as to preclude the use of the said Premises by Tenant
in the conduct of Tenant's business (in Tenant's reasonable judgment), then this
Lease shall terminate on the day that Tenant is required to transfer possession
of the Premises.
Section 21.2. In the event that a portion of the Premises shall be taken
under the power of eminent domain by a public or quasi-public authority, and
such taking does not substantially impair the usefulness of the Premises for the
purposes for which the same are hereby demised, (in Tenant's reasonable
judgment) Landlord shall make such repairs and alterations that may be necessary
in order to restore the Premises to a useful condition to Tenant, provided that
the total cost of such repairs, alterations, and restoration to be performed by
Landlord shall not exceed the amount of compensation awarded to Landlord in
connection with the taking under the power of eminent domain of the portion of
the Premises as hereinbefore provided. The Base Rent shall be reduced in
proportion to the portion of the Premises so taken until and unless subsequently
restored or repaired. The adjustment of rent to be made hereunder shall be made
as of the date Tenant is required to yield possession of a portion of the
Premises as hereinbefore provided.
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Section 21.3. All compensation awarded for any such taking of the fee and
the leasehold shall belong to and be the property of the Landlord; provided,
however, that the Tenant shall be entitled to any portion of the award made to
the Landlord or Tenant for loss of business and for the cost of removal of stock
and fixtures or any equipment installed at the cost and expense of Tenant or the
unamortized cost of any leasehold improvement made prior to the date of this
Lease.
Section 21.4. Notwithstanding anything herein to the contrary, in the event
the holder of any indebtedness secured by a mortgage or deed of trust covering
the Premises requires that the condemnation proceeds be applied to such
indebtedness, then Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within thirty (30) days after
written notice of such requirement is delivered by any such holder, whereupon
all rights and obligations under this Lease shall terminate.
ARTICLE XXII: Waiver of Landlord
Section 22.1 If any action or proceeding is instituted or if other measures
are taken by Landlord and a compromise, part payment, or settlement thereof
shall be made, either before or after judgment, the same shall not constitute or
operate as a waiver by Landlord of any right, covenant, or provision of or under
this Lease or of any subsequent breach or breaches thereof nor of the Lease
itself Non-waiver of any default under or breach or violation of any provision
or covenant of this Lease shall constitute or operate as a waiver of such
provisions or covenant or of any subsequent default thereunder or breach or
violation thereof, and no delay, failure, or omission in exercising or enforcing
any right, privilege, or option under this Lease shall constitute a waiver,
abandonment, or relinquishment thereof or prohibit or prevent any election under
or enforcement or exercise of any provision, right, privilege, or option herein
contained or granted. No waiver of any provision hereof by Landlord shall be
deemed to have been made unless and until such waiver shall have been reduced to
writing and signed by Landlord. The receipt by Landlord of Base Rent with
knowledge of any breach or violation of or default under this Lease shall not
constitute or operate as a waiver of such breach, violation, or default. Payment
by Tenant or receipt by Landlord of a lesser amount than the Base Rent or other
sums due the Landlord shall operate only as a payment on account of Base Rent or
other sums. No endorsement or statement on any check or other remittance or in
any communication accompanying or relating to such payment shall operate as a
compromise or accord and satisfaction unless the same is approved in writing by
Landlord, and Landlord may accept such check, remittance, or payment without
prejudice to Landlord's right to recover the balance of said rent or other sums
due by Tenant and pursue any other remedy allowable by law or under this Lease.
ARTICLE XXII: Events of Default by Tenant
Section 23.1. The following events shall be deemed to be events of default
(each, an "Event of Default') by Tenant under this Lease:
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(a) If Tenant shall fail to pay any installment of the rent, or any
other payment or reimbursement to Landlord required herein, and shall not
cure such failure to make payment within ten (10) days after written notice
from landlord.
(b) If Tenant shall file a voluntary petition in bankruptcy or shall
be adjudicated a bankrupt or insolvent or, in any action or proceeding, if
Tenant shall file any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future applicable federal, state or other
statute or law, or if Tenant shall seek or consent to or acquiesce in the
appointment of any trustee, receiver or liquidator of Tenant or of all or
substantially all of its properties;
(c) If, within sixty (60) days after the commencement of any
proceeding against Tenant seeking any reorganization, readjustment,
liquidation, dissolution or similar relief under any present or future
federal bankruptcy act or any other present or future applicable federal,
state or other statute or law, such proceeding shall not have been
dismissed, or if, within sixty (60) days after the appointment, without
consent or acquiescence of Tenant, of any trustee, receiver or liquidator
of Tenant or of all or substantially all of its properties, such
appointment shall not have been vacated or stayed on appeal or otherwise or
if, within sixty (60) days after the expiration of any such stay, such
appointment shall not have been vacated;
If Tenant shall fail to comply with any term, provision, or covenant
of this Lease, other than the payment of rent and other charges, and shall
not cure such failure within thirty (30) days after written notice thereof
from Landlord, or if cure cannot be made within thirty (30) days, if Tenant
shall fail to begin curing such failure within the thirty (30) days and
shall fail to pursue diligently the cure of such failure; and
If Tenant fails to provide a financial statement to Landlord as
required by Section 3.6 or if Tenant's Liquidity ratio is less than 1.2:1
as reported on a quarterly basis or if Tenant fails to maintain a ratio of
EBIDA to interest charges of 2.1 as reported on a yearly basis.
ARTICLE XXIV: Landlord's Remedies
Section 24.1. If an Event of Default shall have occurred and shall be
continuing, then or at any time thereafter:
(a) The present worth of the Base Rent for the entire unexpired
balance of the term of this Lease, as well as all other charges, payments,
costs and expenses herein agreed to be paid by Tenant, or at the option of
Landlord any part thereof, and also all costs and brokerage commissions (if
any) shall, in addition to any and all installments of Base Rent already
due and payable and in arrears and/or any other charge or payment therein
reserved, included or agreed to be treated or collected as Base Rent and/or
any other charge, expense or cost herein agreed to be paid by Tenant which
may be due and payable and in arrears, be taken to be due and payable and
in arrears as if by the terms and provisions of this Lease the whole
balance of unpaid Base Rent and other charges, payments, impositions, costs
and expenses were on that date payable in advance. "Present worth" shall be
computed by discounting the amount of the Base Rent
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which would have become due during the remainder of the Term to present
value at a rate equal to one percentage point above the discount rate then
in effect at the Federal Reserve Bank;
(b) Landlord may give Tenant notice of Landlord's intention to
terminate this Lease, without any right by Tenant to reinstate its rights
by payment of Base Rent due or other performance of the terms and
conditions hereof, on a date specified in such notice, which date shall not
be less than fifteen (15) days after the date of giving of such notice, and
upon the giving of such notice, the Term and the estate hereby granted
shall expire on the date so specified in said notice with the same effect
as if the date specified in said notice were the date hereinbefore fixed
for the expiration of the Lease Term.
(c) With or without terminating the Lease, the Landlord may reenter
and repossess the Premises, or any part thereof, and lease them to any
other person or entity upon such terms as Landlord shall deem reasonable,
for a term within or beyond the term of this Lease; provided, that any such
reletting prior to termination shall be for the account of Tenant, and
Tenant shall remain liable for (a) all Base Rent, reasonable out-of-pocket
or other sums which would be payable under this Lease by Tenant in the
absence of such expiration, termination or representation, less (b) the net
proceeds, if any, of any reletting effected for the account of Tenant after
deducting from such proceeds all of Landlord's reasonable out-of-pocket
expense in connection with such reletting (including, without limitation,
all repossession costs, brokerage commissions, legal expenses, attorneys'
fees and expenses, reasonable alteration costs, and expenses of preparation
of such reletting).
(d) In addition to, and not in lieu of any of the foregoing rights
granted to Landlord;
(i) When this Lease or Tenant's right of possession shall be
terminated by covenant or condition broken, or for any other reason,
either during the Initial Term of this Lease or any renewal or
extension thereof, and also when and as soon as the term hereby
created or any extension thereof shall have expired, and upon twenty
(20) days prior written notice to Tenant by Landlord, it shall be
lawful for any attorney as attorney for Tenant to file an agreement
for entering in any competent Court an action to confess judgment in
ejectment against Tenant and all persons claiming under Tenant,
whereupon, if Landlord so desires, a writ of Execution or of
Possession may issue forthwith, without any prior writ of proceedings,
whatsoever, and provided that if for any reason after such action
shall have been commenced the same shall be determined and the
possession of the Premises hereby demised remain in or be restored to
Tenant, Landlord shall have the right upon any subsequent default or
defaults, or upon the termination of this Lease as hereinbefore set
forth, to bring one or more action or actions as hereinbefore set
forth to recover possession of the said Premises.
In any action to confess judgment in ejectment, Landlord shall
first cause to be filed in such action an affidavit made by it or
someone acting for it setting forth the facts necessary to authorize
the entry of judgment, of which facts such affidavit shall be
conclusive evidence, and if a true copy of this Lease (and of the
truth of the copy
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such affidavit shall be sufficient evidence) be filed in such action,
it shall not be necessary to file the original as a warrant of
attorney, any rule of Court, custom or practice to the contrary
notwithstanding.
______(INITIAL). TENANT WAIVER. TENANT SPECIFICALLY ACKNOWLEDGES THAT
TENANT HAS VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVED CERTAIN DUE PROCESS
RIGHTS TO A PREJUDGMENT HEARING BY AGREEING TO THE TERMS OF THE FOREGOING
PARAGRAPHS REGARDING CONFESSION OF JUDGMENT. TENANT FURTHER SPECIFICALLY AGREES
THAT IN THE EVENT OF DEFAULT, LANDLORD MAY PURSUE MULTIPLE REMEDIES INCLUDING
OBTAINING POSSESSION PURSUANT TO A JUDGMENT BY CONFESSION. FURTHERMORE, TENANT
SPECIFICALLY WAIVES ANY CLAIM AGAINST LANDLORD AND LANDLORD'S COUNSEL FOR
VIOLATION OF TENANT'S CONSTITUTIONAL RIGHTS IN THE EVENT THAT JUDGMENT IS
CONFESSED PURSUANT TO THIS LEASE.
Section 24.2. If this Lease is assigned or if the Premises, or any part
thereof, are at the time of default sublet or leased by Tenant to others,
Landlord may, as Tenant's agent, collect rents due from any subtenant or other
tenant and apply such rents to the Rent, and other amounts due hereunder without
in any way affecting Tenant's obligation to Landlord hereunder. Such agency,
being given for security, is hereby declared to be irrevocable.
Section 24.3. No expiration or termination of this Lease Term pursuant to
subsection 24.1 (b) above or by operation of law or otherwise (except as
expressly provided herein), and no repossession of the Premises or any part
thereof pursuant to subsection 24.1 (b) above or otherwise shall relieve Tenant
of its liabilities and obligations hereunder, all of which shall survive such
expiration, termination or repossession, and Landlord may, at its option,
institute an action to collect Base Rent and other charges due hereunder at any
time and from time to time as and when such charges accrue.
Section 24.4. With respect to any portion of the Premises which is vacant
or which is physically occupied by Tenant, Landlord may remove all persons and
property therefrom, and store such property in a public warehouse or elsewhere
at the cost of and for the account of Tenant (all of which Tenant expressly
waives) and without being deemed guilty of trespass or becoming liable for any
loss or damage which may be occasioned thereby.
Section 24.5. Upon the occurrence of any Event of Default, Landlord shall
have the option to pursue any and all rights and remedies available hereunder or
at law or in equity. All remedies available to Landlord hereunder and otherwise
available at law or in equity shall be cumulative and concurrent. No
determination of this Lease nor taking or recovering possession of the Premises
shall deprive Landlord of any remedies or actions against Tenant for rent, for
charges, or for damages for the breach of any term, covenant or condition herein
contained, nor shall the bringing of any such action for rent, charges
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or breach of term, covenant or condition, nor the resort to any other remedy or
right for the recovery of rent, charges or damages for such breach be construed
as a waiver or release of the right to insist upon the forfeiture and to obtain
possession.
Section 24.6. Any Base Rent or additional rent (including charges
collectible as Real Estate Taxes) which is overdue for a period of more than
twenty (20) days and for which Tenant has received written notice and
opportunity to cure, shall bear interest at the rate of ten (10%) per annum
until paid.
Section 24.7. With respect to an exercise of Landlord's rights hereunder,
Landlord shall use all commercially reasonable efforts to mitigate its damage.
Section 24.8. Notwithstanding anything contained herein to the contrary,
the Landlord Shall give Tenant twenty (20) days prior written notice before
exercising any self-help remedies.
ARTICLE XXV: Landlord's Cure of Default by Tenant; Reimbursement of Expenses
Section 25.1. If Tenant defaults in making any payment or in doing any act
herein required, then Landlord may, but need not, make such payment or do such
act. If Landlord makes any such payment or incurs any charge or expense on
behalf of Tenant under the terms of this Lease, the amount of the payment or
expense, with interest thereon at ten percent (10%) per annum, beginning thirty
(30) days after a written invoice therefor is sent by Landlord, shall be paid
by Tenant to Landlord, shall constitute additional rent hereunder, and shall be
due and payable immediately when Landlord sends a written invoice therefor;
provided, however, that the making of any such payment or the doing of such act
by Landlord shall not cure such default by Tenant, or estop Landlord from
pursuing any remedy to which Landlord would otherwise be entitled, provided
however, that the payment of such invoice hereunder by Tenant shall cure such
default.
ARTICLE XXVI: Subordination
Section 26.1.Tenant shall subordinate this Lease to any recorded existing
or future first mortgage or first deed of trust (which terms shall include both
construction and permanent financing) that now or hereafter encumber the
Premises, and to all renewals, extensions, modifications, consolidations,
replacements, recastings, and/or refinancings thereof by executing and
delivering to Landlord a non-disturbance, subordination and attornment
agreement in recordable form and otherwise in form and substance reasonably
satisfactory to Tenant.
Section 26.2. Tenant agrees that in the event that any proceedings are
brought for the foreclosure of such mortgage or deed of trust, Tenant shall
attorn to the purchaser at such foreclosure sale, if requested to do so by the
purchaser, and to recognize the purchaser as Landlord under this Lease.
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Section 26.3. Notwithstanding the foregoing, Landlord shall cause any
trustee or mortgagee to execute a non-disturbance, subordination and attornment
agreement granting unto Tenant the right to continue peacefully in possession of
the Premises in the event of foreclosure under any such deed of trust or
mortgage so long as Tenant is not in default under this Lease, for which it has
received written notice. Such agreement shall be contingent upon Tenant's (or
Tenant's successor or assigns) agreement to atom to and recognize any such
trustee, mortgagee, or purchaser in foreclosure, as the successor in interest to
the Landlord in the event of such foreclosure.
ARTICLE XXVII: Estoppel Certificates
Section 27.1. Tenant agrees, upon no less than thirty (30) days written
notice by Landlord, to execute, acknowledge, and deliver to Landlord, a
statement in writing certifying (i) that this Lease is unmodified and in full
force and effect, or, if there have been modifications, that this Lease is in
full force and effect as modified, and stating any such modifications; (ii)
certifying that Tenant has accepted possession of the Premises, and that any
improvements required by the terms of this Lease to be made by Landlord have
been completed to the satisfaction of Tenant; (iii) that no rent under this
Lease has been paid more than thirty (30) days in advance of its due date; (iv)
the address to which notices to Tenant should be sent; (v) certifying that
Tenant, as of the date of any such certification, has no charge, lien, or claim
of set-off under this Lease, or otherwise, against rents or other charges due or
to become due hereunder; and (vi) stating whether or not, to the best of
Tenant's knowledge, Landlord is in default in the performance of any covenant,
agreement, or condition contained in this Lease, and if so, specifying each such
default of which Tenant may have knowledge. Any such statement delivered
pursuant hereto may be relied upon by any owner of the Premises, any prospective
purchaser of the Premises, any mortgagee or prospective mortgagee of the
Premises or of Landlord's interest, or any prospective assignee of any such
mortgagee.
ARTICLE XXIII: Succession
Section 28.1. This Lease and all of the covenants, agreements, conditions,
and provisions herein contained shall be binding upon and inure to the benefit
of the parties hereto and their respective heirs, successors, and assigns, as
the case may be. The term "Landlord" as used herein shall include the heirs,
successors, and assigns of Landlord and assigns of the reversionary estate under
this Lease. The term "Tenant" as used herein shall include the permitted
successors of Tenant and the permitted assigns of the entire leasehold estate
under this Lease.
ARTICLE XXIX: Notices
Section 29.1. Any notices required or permitted by this Lease to be given
by either party to the other shall be in writing and shall be either personally
delivered or sent by registered or certified mail properly addressed, or by
nationally recognized overnight courier such as Federal Express, to the said
parties, their agents, representatives,
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successors, or assigns, at the last known address of such addressee, and the
date of so depositing in the U.S. mail, personal delivery, or delivery by such
common carrier shall be deemed the date of giving such notices. Until further
notice in writing to the contrary, all notices to Landlord and Tenant shall be
sent to the following addresses:
If to Landlord: BET Investments IV, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxxx, XX 00000
Attn: Xx. Xxxxx X. Toll
With a copy to: Xxxxxxx X. Xxxxxxx, Esquire
(at the same address)
If to Tenant: Integrated Circuit Systems, Inc.
0000 Xxxxxxxxx xx xxx Xxxxxxxx
Xxxxxxxxxx, XX
With a copy to: Xxxxx X. Xxxxxx, Esquire
Xxxxxx Xxxxxxxx LLP
Liberty View Building, Suite 500
000 Xxxxxxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
ARTICLE XXX: No Partnership
Section 30.1. Nothing contained in this Lease shall be construed to create
a partnership or joint venture of or between Landlord and Tenant, or create any
other relationship between those parties other than that of Landlord and Tenant.
ARTICLE XXXI: No Representations by Landlord
Section 31.1 Neither Landlord nor any agent or employee of Landlord has
made any representations or promises with respect to the Premises except as
herein expressly set forth, and no rights, privileges, easements, or licenses
are acquired by Tenant except as herein set forth.
ARTICLE XXXII: Necessary Approvals and Lease Modifications
Section 32.1. Should any of Landlord's present or future mortgagees require
modification of this Lease's terms in connection with any financing of any
portion of the Premises or improvements thereto, Tenant agrees, at no cost to
Landlord and without demand for consideration of any kind, except as offered by
Landlord, to execute an amendment to this Lease incorporating such reasonable
mortgagee's modifications provided, however, that Tenant shall not be required
to modify any provision of this Lease increasing the sums payable by Tenant
under this Lease, reducing or extending the Term, reducing or increasing the
area of the Premises
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or increasing any of Tenant's material obligations under the Lease, or
materially affecting Tenant's use of the Premises or rights hereunder.
ARTICLE XXXIII: Miscellaneous
Section 33.1. Words of any gender used in this Lease shall be construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
Section 33.2. Each party agrees to furnish to the other, promptly upon
demand, both appropriate documentation evidencing the valid creation and
existence of such party and a corporate resolution, proof of due authorization
by partners, or other appropriate documentation evidencing the due authorization
of such party to enter into this Lease.
Section 33.3. The captions inserted in this Lease are for convenience only
and in no way define, limit, or otherwise describe the scope or intent of any
provision hereof
Section 33.4. Within ten (10) days following any transfer by Landlord of
its ownership interest in the Property, Landlord shall provide Tenant with
written notice of such transfer of the Property and the name and address of the
successor Landlord to whom Tenant should send future rent payments and notices
(the "Transfer Notice"). In the event that a predecessor Landlord fails to
provide the Transfer Notice, (a) Tenant shall not be liable to any successor
Landlord for any rent payments paid to a predecessor Landlord; and (b) any
successor Landlord shall be bound by any notice sent to a predecessor Landlord.
Section 33.5. This Lease may be executed in several counterparts, all of
which constitute one and the same instrument.
Section 33.6. The language of this Lease shall be construed according to
its normal and usual meaning and not strictly for or against either Landlord or
Tenant. The rule of construction which allows a court to construe a document
more strictly against its author shall not govern the interpretation of this
Lease.
Section 33.7. No right or remedy herein conferred upon or reserved to
either party is intended to be exclusive of any other right or remedy, and every
right and remedy shall be cumulative and in addition to any other right or
remedy given by this Lease or now or hereafter existing at law or in equity. The
failure of either party to insist upon the strict performance of any obligation
shall not be deemed a waiver thereof.
Section 33.8. If any provision of this Lease, or its application to any
situation, shall be invalid or unenforceable to any extent, the remainder of
this Lease, or the application thereof to situations other than as to which it
is invalid or unenforceable, shall not be affected thereby, and every provision
of this Lease shall be valid and enforceable to the fullest extent permitted by
law.
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Section 33.9. This Lease constitutes the entire agreement between the
parties and may be amended only by written agreement of the parties. No
representations, inducements, promises or agreements, oral or otherwise,
between Landlord and Tenant or any of their respective brokers, employees or
agents, not embodied herein, shall be of any force or effect.
Section 33.10. Landlord and Tenant agree that in fulfilling all terms and
conditions of this Lease, time is of the essence.
Section 33.11. This Lease shall be governed and construed under the laws of
the Commonwealth of Pennsylvania. The parties acknowledge that this Lease has
been drafted, negotiated, made, delivered and consummated in the Commonwealth of
Pennsylvania. The parties hereby waive any objection to the venue of any action
filed in any state or federal court of Xxxxxxxxxx or Philadelphia County in the
Commonwealth of Pennsylvania and waive any claim of forum non convenience or for
transfer of any such action to any other court.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Landlord and Tenant, intending to be legally bound
hereby, have signed this Lease as of the day and year first above written.
LANDLORD
BET INVESTMENTS IV, L.P.
By Its Sole General Partner
BET Investments IV, Inc.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President
TENANT
INTEGRATED CIRCUIT SYSTEMS, INC.
By: /s/ Xxxxxxx Xxxx
----------------------------
Name: Xxxxxxx Xxxx
Title: Dir of Finance and Admin
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EXHIBIT "A-1": Premises
A one and two story building containing approximately 61,000 square feet.
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EXHIBIT "A-2": Land
The Property known as 0000 Xxxxxxxxx Xx Xxxxxxxx, Xxxxxxxxxx, XX,
known as West Norriton Township, Block 38, Unit 88
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FIRST AMENDMENT TO MASTER LEASE
THIS FIRST AMENDMENT TO MASTER LEASE dated this 23rd day of February, 1999, by
and between BET INVESTMENTS IV, a Pennsylvania limited partnership ("Landlord")
INTEGRATED CIRCUIT SYSTEMS, INC., a Pennsylvania corporation
("Tenant")
WHEREAS, Landlord and Tenant desire to amend certain terms, covenants and
conditions of the Lease as set forth in the recitals as stated more specifically
below with all other terms and conditions remaining in full force and effect
throughout the entire term of this Second Amendment To Lease.
WITNESSETH:
NOW THEREFORE, in consideration of the foregoing and of the mutual promises
hereinafter contained, Landlord and Tenant, intending to be legally bound,
hereby agree with each other as follows:
1. The preamble of this Agreement is hereby incorporated herein as though
rewritten at length.
2. The following language is hereby inserted at the end of Section 10.1 of the
Lease:
Notwithstanding anything to the contrary set forth in the Lease, the Tenant
shall be solely responsible for the repairs to the Building and the Land listed
on Exhibit B attached hereto and shall complete such repairs and replacements at
its sole cost and expense on or before December 31, 1999. If the Tenant fails to
comply with foregoing it shall a default under the Lease.
3. The following language is hereby inserted at the end of Section 10.2 of the
Lease:
Notwithstanding anything to the contrary set forth in the Lease, it is
understood and agreed that roof repairs shall not be considered structural in
nature and the Landlord shall not be responsible for roof repairs to the
Premises. In the event that the Landlord is required to replace the entire roof,
the Landlord shall proceed accordingly, but the Tenant shall be responsible for
reimbursing the Landlord the actual costs allocable to the period in which the
tenant occupies the Premises following such repairs, such allocation determined
by amortizing such costs over the useful life of the new roof, not to exceed
twelve (12) years.
Except as otherwise provided in the Lease, the Landlord and Tenant intend
this to be a "net" lease pursuant to which the Rent payable hereunder shall be
absolutely net return to the Landlord for the term of this Lease, undiminished
by Real Estate Taxes, insurance expenses, operating expenses, maintenance or
repair expenses or any other charges of any kind or nature whatsoever.
4. All other terms and conditions of the Lease not modified herein shall remain
unchanged.
IN WITNESS WHEREOF, the parties hereto have duly this Agreement as of the
date and year above written.
LANDLORD
BET INVESTMENTS IV, L.P.
By Its Sole General Partner
BET Investments IV, Inc.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President
TENANT
INTEGRATED CIRCUIT SYSTEMS, INC.
By: /s/ Xxxxxx Xxxx
----------------------------
Name: Xxxxxx Xxxx
Title: Director of Finance and Admin
Exhibit B
(See Attached Summaries)
Immediate Repairs Cost Estimate Total GSF: 61,000 Square feet
The Valley Forge Business Center No of Bldgs: 1
Norristown, Pennsylvania Reserve Term: 12 years
52702 Property Age: 13 years
January 27, 1999
See Item Description Quantity U Cost I-Totals Comments
------------------------------------------------------------------------------------------------------------------------------------
3.2 Itemized costs are provided in
Section 3.2 of the report.
------------------------------------------------------------------------------------------------------------------------------------
5.2 Asphalt pavement (initial seal coat) 52,000 SF $0.11 $5,720
------------------------------------------------------------------------------------------------------------------------------------
5.3 Earthwork, grading & erosion control 1 LS $250.00 $250
------------------------------------------------------------------------------------------------------------------------------------
5.3 Stormwater retention basin maintenance 1 LS $1,500.00 $1,500
------------------------------------------------------------------------------------------------------------------------------------
6.4 Exterior walls, stucco or EIFS 10,800 SF $1.25 $13,500
------------------------------------------------------------------------------------------------------------------------------------
6.4 Exterior walls, masonry cleaning/repointing 2,000 SF $0.50 $1,000
------------------------------------------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
Total Immediate Repairs $21,970
-------------------------------------------------------------------------------------------
Cost per square foot
-------------------------------------------------------------------------------------------
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (the "Amendment"), is made this 13th day of
April, 1999, by and between BET Investments, IV, a Pennsylvania limited
partnership with an address of 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx
Xxxxxx, Xxxxxxxxxxxx (the "Landlord"), and Integrated Circuit Systems, Inc., a
Pennsylvania corporation with an address of 2435 Boulevard of the Generals,
Norristown, Pennsylvania ("Tenant"), and amends that certain Lease between
Landlord and Tenant dated as of January 29, 1999, for the property commonly
known as 2435 Boulevard of the Generals, Norristown, Pennsylvania (the
"Property").
WITNESSETH:
WHEREAS, Landlord by way of assignment dated April 12, 1999, from BET
Investments, III, a Pennsylvania limited partnership with an address of 0000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx Xxxxxx, Xxxxxxxxxxxx, and Tenant are
parties to a certain Agreement of Sale dated as of January 18, 1999, amended by
way of letter Amendment dated February 12, 1999, Second Amendment to Agreement
of Sale dated March 5, 1999, Third Amendment to Agreement of Sale dated March
15, 1999, and Fourth Amendment to Agreement of Sale dated the same date herewith
(the "Agreement"), wherein Landlord has agreed to purchase from Tenant and lease
back to the Tenant, the Property, subject to the terms and conditions of the
Agreement; and
WHEREAS, the Tenant is the owner of the Property and occupying the Property
pursuant to an Installment Sale Agreement dated September 25, 1992, as amended
and restated April 29, 1994 (the "Installment Agreement"), wherein the
Xxxxxxxxxx County Industrial Development Corporation, a Pennsylvania nonprofit
corporation ("Xxxxxxxxxx County") agreed to sell to Tenant, and Tenant agreed to
purchase from Xxxxxxxxxx County, the Property pursuant to the terms thereof; and
WHEREAS, the Property is currently the subject of an Open-End Mortgage
dated April 29, 1994, by and between Xxxxxxxxxx County and The Pennsylvania
Industrial Development Authority, a Pennsylvania public body corporate and
politic ("PIDA"), wherein Xxxxxxxxxx County mortgaged the Property to PIDA, to
secure a Note dated the same date therewith between PIDA and Xxxxxxxxxx County,
pursuant to a Loan Agreement between PIDA and Xxxxxxxxxx County dated the same
date therewith (the Note, Open-End Mortgage, Loan Agreement, Installment
Agreement and all other documents connected therewith are hereinafter
collectively referred to as the "Loan Documents" or the "PIDA Loan"); and
WHEREAS, in connection with the closing under the Agreement, the Landlord
and Tenant have entered into a Fourth Amendment to Agreement of Sale dated the
same date herewith wherein Landlord agreed to assume all of the rights,
responsibilities, obligations and liabilities of Seller under the Loan
Documents, and obtained a full release of all obligations and
liabilities of Tenant under the Loan Documents as partial payment of the
Purchase Price (the "Assignment"); and
WHEREAS, pursuant to and as a condition to the Agreement, and specifically
in consideration of Tenant's execution of the Fourth Amendment to Agreement of
Sale, the parties have agreed to enter into this Amendment;
NOW THEREFORE:
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged by Landlord and Tenant, and intending to be legally bound
hereby, Landlord and Tenant hereby agree as follows:
1. The Lease is hereby amended to reflect that the Annual Base Rental for
Year 1 shall be Five Hundred Eighty Five Thousand Dollars and No/100
($585,000.00) and as a result the first month's rental shall be reduced to
Twenty Five Thousand Eight Hundred Thirty Three Dollars and Thirty Three Cents
($25,833.33) pro rated from April 13, 1999.
2. The Lease is hereby amended to reflect that provided that the Tenant is
not in default of the Lease for which it has received appropriate notice and/or
opportunity to cure, and in the event that PIDA has not in connection with the
Assignment required that the PIDA Loan be paid in full prior to March 1, 2007,
the Tenant shall have the right to deduct Fifty Five Thousand Dollars and No/100
from the Annual Base Rent that would otherwise be due for the month of March,
2007. In the event that PIDA has required that the PIDA Loan be terminated, paid
off or released prior to such date, this Section shall be null and void and of
no further force or effect and the Tenant shall not have the right to deduct
such amount from the Annual Base Rent.
3. Except as modified by this Amendment, the Lease shall remain unmodified,
in full force and effect. If there is any conflict between the terms and
provisions of this Amendment and the terms and provisions of the Lease, the
terms and provisions of this Amendment shall prevail.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals on
the date first above written.
WITNESS/ATTEST: SELLER:
Integrated Circuit Systems, Inc.,
a Pennsylvania corporation
____________________ By: /s/ Xxxxxxx Xxxx
--------------------------------------------
Xxxxxxx Xxxx, Director of
Administration and Finance
BUYER:
BET Investments, IV, L.P.,
a Pennsylvania limited partnership
By: BET Investments IV, Inc., a Pennsylvania
corporation, its general partner
____________________ By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxx, Executive Vice President
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