SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE is made as of the 8th day of
September, 1997, by and between:
XXXXXX III-TECH CENTER, L.P.
having an address
c/o Berger and Xxxxxxxxx
000 Xxxxx Xxxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000,
(hereinafter referred to as "Landlord") and
ANADIGICS, INC.
a corporation of the State of Delaware having an address at
00 Xxxxxxxxxx Xxxxx Xxxxxx, Xxx Xxxxxx 00000
(hereinafter referred to as "Tenant")
W I T N E S S E T H:
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WHEREAS, Landlord's predecessor in interest and Tenant entered into a
Lease dated as of the 26th day of April, 1996, as amended on November 20, 1996
(hereinafter collectively referred to as "Lease"); and
WHEREAS, Landlord and Tenant have agreed that the terms of the
aforementioned Lease should be applied to the entire Building (as hereafter
defined) and to certain other modifications to the aforesaid Lease.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. Demised Premises. The term "Demised Premises" shall be expanded to
include the entire building known as 141 Mt. Bethel Road, Township of Xxxxxx,
Somerset County, New Jersey. Said building, together with the land on which it
is situated, is hereinafter referred to as the "Building" or "Property". The
Demised Premises, including the Additional Premises, contains approximately
167,113 square feet of space. The "Additional Premises" shall mean the premises
not presently leased under the Lease. The "Original Premises" shall mean the
premises presently leased under the Lease. The Additional Premises shall be
divided into two parts as shown on Exhibit A Annexed hereto and shall be
referred to as Part A Premises and Part B Premises.
2. Commencement Date.
a. The "Commencement Date" for the Part A Premises ("Part A
Commencement Date") shall be the later of January 1, 1998 or the date upon which
Landlord shall substantially complete the improvements for the Part A Premises
set forth on Exhibit B annexed hereto (hereinafter "Landlord's Part A Work").
The termination date shall be December 31, 2016, plus all renewal option periods
under the original lease. Landlord's Part A Work shall be deemed substantially
complete upon the date that Landlord's Part A Work is complete to the extent
that any incomplete Landlord's Part A Work does not interfere with Tenant's
ability to obtain a Certificate of Occupancy for the Part A Premises nor
unreasonably interfere with Tenant's reasonable use of the Part A Premises. It
is agreed that not completing the parking areas obtained by Landlord as part of
the "Land Swap," hereinafter defined, or the top coating of any parking areas
and landscaping work shall not unreasonably interfere with Tenant's reasonable
use of the premises and such work can be postponed to September 1, 1998. Any
remaining work shall be deemed "punch list" items. Tenant shall provide Landlord
with a list of such items no later than thirty (30) days from the Part A
Commencement Date (except for items not required to be completed by said
Commencement Date, in which event Tenant shall have thirty (30) days from the
date of completion of said items) and Landlord shall complete any such work
which shall be Landlord's Part A Work within thirty (30) days of the receipt of
said list, weather permitting. At the request of either Landlord or Tenant, the
parties shall enter into a Part A Commencement Date Agreement setting forth the
Part A Commencement Date. Notwithstanding that the Part A Commencement Date
shall not have occurred, Tenant shall have the right from and after the date of
this Agreement to access the Part A Premises to do any work that Tenant shall
wish to do, so long as Tenant does not unreasonably interfere with Landlord's
Part A Work and so long as Tenant's Work does not cause any labor disputes. In
the event the Part A Commencement Date shall not occur by January 1, 1998,
Tenant may terminate this Lease as to the Part A Premises on written notice to
Landlord (hereinafter "Notice to Terminate"). The Notice to Terminate shall be
delivered to Landlord on or before January 10, 1998, time being of the essence.
Tenant's failure to deliver the Notice to Terminate on or before said date shall
be deemed a waiver by Tenant of its right to elect to terminate this Lease as to
the Part A Premises pursuant to this subparagraph.
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b. The Commencement Date for the Part B Premises shall be the later of
January 1, 1998 or the date upon which Landlord shall substantially complete the
improvements for the Part B Premises set forth on Exhibit C annexed hereto,
(hereinafter "Landlord's Part B Work"). The termination date shall be December
31, 2016, plus all renewal periods under the original lease. Landlord's Part B
Work shall be deemed substantially complete upon the date that Landlord's Part B
Work is complete to the extent that any incomplete Landlord's Part B Work does
not interfere with Tenant's ability to obtain a Certificate of Occupancy for the
Part B Premises nor unreasonably interfere with Tenant's reasonable use of the
Part B premises. It is agreed that not completing the parking areas obtained by
Landlord as part of the "Land Swap" hereinafter defined or the top coating of
any parking areas and landscaping work shall not unreasonably interfere with
Tenant's reasonable use of the premises and such work can be postponed to
September 1, 1998. Any remaining work shall be deemed "punch list" items. Tenant
shall provide Landlord with a list of such items no later than thirty (30) days
from the Part B Commencement Date (except for items not required to be completed
by said Commencement Date, in which event Tenant shall have thirty (30) days
from the date of completion of said items). Landlord shall complete any such
work which shall be Landlord' Part B Work within thirty (30) days of the receipt
of said list weather permitting. At the request of either Landlord or Tenant,
the parties shall enter into a Part B Commencement Date Agreement setting forth
the Part B Commencement Date. Notwithstanding that the Part B Commencement Date
shall not have occurred, Tenant shall have the right, from and after the date of
this Agreement, to access the Part B Premises to do any work that Tenant shall
wish to do, so long as Tenant does not unreasonably interfere with Landlord's
Part B Work and so long as Tenant's Work does not cause any labor disputes. In
the event the Part B Commencement Date shall not occur by June 30, 1998, Tenant
may terminate this Lease as to the Part B Premises on written notice to Landlord
(hereinafter "Notice to Terminate"). The Notice to Terminate shall be delivered
to Landlord on or before July 10, 1998, time being of the Essence. Tenant's
failure to deliver the Notice to Terminate on or before said date shall be
deemed a waiver by Tenant of its right to elect to terminate this Lease as to
the Part B Premises pursuant to this subparagraph. In the event that Tenant does
not terminate as is provided for above and in the event that the Part B
Commencement Date shall not have occurred, Tenant may elect no sooner than July
11, 1998, and no later than July 21, 1998, time being of the essence, to notify
Landlord in writing of any work required to be performed by Landlord which is
not completed. Landlord shall have twenty (20) business days to complete said
work. If Landlord shall not complete said work within such time, Tenant shall
have the right, by written notice to Landlord given within five (5) business
days of the expiration of said twenty (20) business day period, time being of
the essence, to instruct Landlord not to do such work and upon the timely
receipt of such notice, Landlord shall no longer be obligated to do such work,
and Tenant shall thereafter be obligated to do such work. Tenant's failure to so
timely notify Landlord shall be deemed a waiver of Tenant's right to so elect.
Tenant shall be entitled to deduct the reasonable cost of doing such work from
the next rent due Landlord.
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3. Rent and Option.
a. Tenant's obligation to pay fixed annual rent for the Part A Premises
shall commence on the "Part A Commencement Date". Tenant's obligation to pay
fixed annual rent for the Part B Premises shall commence on the "Part B
Commencement Date." In no event shall the rent for any portion of the Additional
Premises commence prior to January 1, 1998.
In consideration of the leasing of the Demised Premises including the
Part A Premises and/or the Part B Premises, Tenant hereby covenants and agrees
to pay Landlord during the Initial Term of this Lease a fixed annual rental
pursuant to the following schedule:
Including Part A Premises
Fixed Monthly
Lease Year Annual Rental Installment
---------- ------------- -----------
Commencement Date
through
December 31, 1997 $ 600,000.00 $ 50,000.00
January 1, 1998
through
August 31, 1998 967,291.50 80,607.63
September 1, 1998
through
June 30, 1999 984,841.50 82,034.58
Fixed Monthly
Lease Year Annual Rental Installment
---------- ------------- -----------
July 1, 1999
through
September 30, 1999 1,115,841.50 92,986.79
October 1, 1999
through
December 31, 2001 1,124,616.50 93,718.04
January 1, 2002
through
March 31, 2002 1,255,616.50 104,634.70
April 1, 2002
through
June 30, 2004 1,273,166.50 106,097.20
July 1, 2004
through
September 30, 2004 1,404,166.50 117,013.87
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April 1, 2002
through
June 30, 2004 1,493,779.70 124,481.64
July 1, 2004
through
September 30, 2004 1,642,329.70 136,860.80
October 1, 2004
through
December 31, 2006 1,678,442.70 139,870.22
January 1, 2007
through
March 31, 2007 1,940,442.70 161,703.55
April 1, 2007
through
June 30, 2009 1,982,695.00 165,224.58
July 1, 2009
through
September 30, 2009 2,113,695.00 176,141.25
October 1, 2009
through
December 31, 2011 2,161,724.80 180,143.73
January 1, 2012
through
March 31, 2012 2,292,725.25 191,060.47
Fixed Monthly
Lease Year Annual Rental Installment
---------- ------------- -----------
April 1, 2012
through
June 30, 2014 2,328,838.20 194,069.85
July 1, 2014
through
September 30, 2014 2,459,838.20 204,986.51
October 1, 2014
through
December 31, 2016 2,495,951.20 207,995.93
4. Proportionate Share.
Paragraph 4 of the Lease will be amended to provide that the number
"173,000 will be changed to 167,113. The number "57.80%" will be changed to
59.83%, and the number "76%" will be changed to 78.39%.
For the period from the Part A Commencement Date to the Part B
Commencement Date, the Tenant's Proportionate Share shall be 88.8% percent and
for the period from the Part B Commencement Date the Tenant's Proportionate
Share shall be 100%.
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5. Estimated Costs.
a. At such time as the Part A Premises shall be included in the Demised
Premises, the initial monthly additional rent charges for Tenant's Proportionate
Share of Real Estate Taxes, water and sewer charges, Common Area Charges and
insurance costs (hereinafter together referred to as Operating Costs) shall be
initially estimated at the sum of Fifteen Thousand Five Hundred and 00/100
($15,500.00) DOLLARS, which sum, commencing as of the Part A Commencement Date,
shall be paid monthly, on the first day of each month.
b. At such time as the Part A Premises and Part B Premises shall be
included in the Demised Premises, the initial monthly additional rent charges
for Tenant's Proportionate Share of Real Estate Taxes, water and sewer charges,
Common Area Charges and insurance costs (hereinafter together referred to as
operating Costs) shall be initially estimated at the sum of Seventeen Thousand
Five Hundred and 00/100 ($17,500.00) DOLLARS, which sum, commencing as of the
Part B Commencement Date, shall be paid monthly, on the first day of each month.
6. Repair and maintenance
Paragraph 11 of the Lease shall be amended so that responsibility for
the roof of the Additional Premises shall belong to Tenant, unless Tenant shall
employ Avon Maintenance to install a new roof on the Additional Premises of like
kind and quality as Landlord installed on the original Premises and unless a
roof guarantee is obtained by Tenant on substantially the same terms and
conditions as the existing roof guarantee for the Original Premises in which
case Landlord should be responsible in accordance with the terms of paragraph 11
of the Lease.
7. Landlord's Right to Make Improvements. Paragraph 20 of the Lease is
hereby deleted.
8. Security. Tenant shall, upon execution of this Second Amendment to
Lease, pay to Landlord as security for the full and faithful performance of the
obligations of Tenant to be performed by Tenant pursuant to this Lease
additionally, the sum of TWO HUNDRED FIFTY THOUSAND ($250,000.00) DOLLARS
("Security"). Said sum shall be returned without interest to the Tenant, at the
rate of FIFTY THOUSAND ($50,000.00) DOLLARS per year and credited against rent
for the months of January 1999, January 2000, January 2001, January 2002 and
January 2003, provided that the Tenant shall not then be in default of the
terms, covenants and conditions an its part to be performed. The return of the
additional Security Deposit shall be personally guaranteed by Xxxxxxxx X.
Xxxxxx.
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9. Brokers
a. Tenant and Landlord represent and warrant that neither they nor any
of their employees or agents have acted so as to entitle any brokers to a
commission in connection with this Second Amendment to Lease except Weichert
Commercial Realtors. Landlord shall pay Weichert Commercial Realtors in
accordance with a separate commission agreement.
b. In the event Tenant or Landlord shall have breached their
representations and warranties set forth in paragraph 9a above, the breaching
party covenants and agrees to indemnify and hold the other harmless against any
claim asserted by any broker, or by anyone else with whom they dealt, for any
compensation in bringing about this transaction and to reimburse the
non-breaching party for any costs or expenses including, without limitation,
reasonable attorneys' fees and disbursements, incurred by the non-breaching
party in defending against claims made against non-breaching party for any such
compensation.
10. Tax Liens. Paragraph 31 shall be deleted.
11. Additional Payment by Tenant. Tenant shall pay Landlord the sum of
THREE HUNDRED FIFTY THOUSAND ($350,000.00) in the manner hereinafter set forth
which shall be Tenant's net contribution for the items set forth on Exhibit D
hereof, after deducting Landlord's contribution for items set forth on Exhibit
D.
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The manner of payment shall be as follows:
Previously paid $ 50,000.00
On completion of footings
For Second Lobby $100,000.00
On completion of steel
For Second Lobby $ 50,000.00
On Completion of roof
For Second Lobby $ 50,000.00
On Tenant's occupying any
portion of Phase E as shown
on plan attached as
Exhibit E S100,Q00,00
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TOTAL $350,000.00
12. Tenant's Additional Remedies for Failure of Landlord to Complete
Work Required for a Certificate of Occupancy for Phases B, C and D. Tenant is
concerned that Landlord's failure to complete work that Landlord is required to
perform for the Additional Premises will interfere with Tenant's ability to
obtain a Certificate of Occupancy for Phases B, C and D of the Original Premises
as shown on Exhibit E attached hereto. Landlord agrees that in the event that
such a situation arises, Tenant shall notify Landlord of which such work is not
completed, and Landlord shall have twenty (20) business days to complete said
work. If Landlord shall not complete said work within such time, Tenant shall
have the right, by written notice to Landlord given within five (5) business
days of the expiration of said twenty (20) business day period, time being of
the essence, to instruct Landlord not to do such work and upon the timely
receipt of such notice, Landlord shall no longer be obligated to do such work
and Tenant shall thereafter be obligated to do such work. Tenant's failure to so
timely notify Landlord shall be deemed a waiver of Tenant's right to so elect.
Tenant shall be entitled to deduct the reasonable cost of doing such work from
the next rent due Landlord. In any such event, Tenant's fixed rent for any
portion of the space in Phases B, C and D which Tenant cannot occupy because of
Landlord's failure to complete Landlord's work shall xxxxx from the date Tenant
is unable to obtain such Certificate of Occupancy until such time as Tenant
shall be able to occupy such space. In the event Tenant elects to do such work,
Tenant agrees to immediately commence and diligently pursue the completion of
such work.
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13. Land Swap. Landlord has, with Tenant's agreement, arranged with
Atlantic Development and its affiliated entities (hereafter "Atlantic") to
exchange a portion of the land which is part of the Property for a parcel of
land owned by Atlantic. At such time as the land swap is completed, the Property
shall no longer include the parcel of land to be conveyed by Landlord and shall
include the parcel of land to be conveyed to Landlord by Atlantic.
14. Rent Commencement. The Rent Commencement Date for the Original
Premises shall be agreed to be November 22, 1997.
15. Paragraph 7 of the Lease shall be amended to provide that Tenant
shall be responsible for all snow removal for the Demises Premises, including
any sanding and/or salting.
16. Paragraph 29a. of the Lease is deleted.
17. The number twenty five thousand (25,000) square feet in
Subparagraph 18c(l) shall be increased to thirty thousand (30,000) square feet;
the number fifty thousand (50,000) square feet in subparagraph 18c(2) shall be
increased to sixty thousand (60,000) square feet; and the number one hundred
thousand (100,000) square feet in subparagraph 18c(3) and (4) shall be increased
to one hundred twenty five thousand (125,000) square feet.
18. This Amendment is only intended to modify and amend those
provisions of the Lease as specified in this Amendment, and, except as specified
herein, all of the terms and conditions of the Lease, as previously amended,
shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
LANDLORD:
XXXXXX HI-TECH CENTER, L.P.
BY UNITED STATES LAND RESOURCES, L.P.,
General Partner
BY UNITED STATES REALTY RESOURCES, INC.,
General Partner
By:_____________________________
XXXXXXXX X. XXXXXX, President
TENANT:
ANADIGICS, INC.
BY:____________________________________
AS TO PARAGRAPH 8 HEREOF
--------------------------------------
XXXXXXXX X. XXXXXX
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[FLOOR PLAN]
EXHIBIT A
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EXHIBIT B
LANDLORD'S PART A WORK
Tenant accepts Part A of the Additional Premises in an "as-is"
condition except that Landlord shall do the following work:
1. Remove existing roof and deck materials which Tenant acknowledges as
completed.
2. Install new roof J-Joists as shown on plans S-6 and S-8 attached
hereto as Exhibit E, which Tenant acknowledges as completed.
3. Remove curb on floor and patch concrete, which Tenant acknowledges
as completed.
4. Fill in basement areas which Tenant acknowledge as completed.
5. Remove all piping and equipment which Tenant acknowledges is
complete except for pipes not level to floor.
6. Remove tile and fixtures and pipe in bathroom which Tenant
acknowledges is completed.
7. Remove outside block wall and replace block columns with steel
columns, which Tenant acknowledges as completed.
8. Re-skin exterior of Building as shown on plans A-12 and A-13 dated
4/15/97, as revised 4/22/97, attached hereto as Exhibit F.
Tenant shall be responsible for all roof drains to and including the
point of tie into Landlord's existing sleeves and any other roof drains which
Tenant wishes to install. Landlord shall be responsible for all roof drainage
once it leaves the Building.
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EXHIBIT C
LANDLORD'S PART B WORK
1. Construct new Building as is shown on plan A-16 dated 5/21/97, as
revised 8/2/97, attached hereto as Exhibit G.
2. Remove roof and deck on portion of Building shown on plan A-16 dated
5/21/97, as revised 8/2/97, attached hereto as Exhibit G.
3. Fill in all basement areas.
4. Remove chimney which Tenant acknowledges is complete.
5. Re-skin Building as shown on plan A-17 dated 4/23/97, revised
8/2/97, attached hereto as exhibit II.
Tenant shall be responsible for all roof drains to and including the
point of tie into Landlord's existing sleeves and any other roof drains which
Tenant wishes to install. Landlord shall be responsible for all roof drainage
once it leaves the Building.
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EXHIBIT D
WORK FOR WHICH TENANT MADE CONTRIBUTION
1. Survey
2. Ramp
3. P.I.V.
4. Gate valves
5. Remobilization
6. Dirt moving
7. New Drainage Pond*
a. Footings and fire wall
9. Second Lobby (as described on Exhibit I attached hereto)
10. Fire hydrant
11. Additional contribution required for Technology Drive.
12. Additional engineering for Technology Drive
13. Additional landscaping for Technology Drive
*To the extent that Atlantic Development or any of its affiliated entities makes
a contribution for the Drainage Pond in lieu of taking the 6.8 CFS of flow
previously agreed to, Landlord and Tenant shall divide any such sum 50/50.
WORK FOR WHICH LANDLORD MADE CONTRIBUTION
1. Additional insulation
2. Electric salvage
3. Repair required after roof drain installation
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EXHIBIT I
Landlord shall complete the following work on the Second Lobby at
Landlord's cost and expense in accordance with plans of Xxxxxx Xxxxxxxx, Inc.
dated July 3, 1997:
1. Construct footings necessary to hold steel for Second Lobby.
2. Pour slab and finish interior and exterior lobby walks with 4"x8"x2"
brick pavers.
3. Provide and erect steel to hold lobby roof.
4. Provide and install lobby roof.
5. Finish west wall of lobby with spandrel glass panels to match
existing exterior spandrel panels.
6. Construct east wall of lobby with cement blocks, wall finished by
Tenant.
7. Provide and install glass end walls of lobby and exterior doors to
lobby on north and south elevations.
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