EXHIBIT 10.28
LEASE AGREEMENT
THIS LEASE, dated as of the 21st day of November, of 1991, is between
Homburg Holdings (CO) Inc., owner, a Colorado corporation ("Landlord"), and
Microphase Laboratories, Inc., a New Mexico corporation ("Tenant"). Landlord
desires to lease to Tenant and Tenant desires to acquire a leasehold interest in
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ owned by Landlord and located in El Paso County, Colorado, as
described on Annex A attached (the "Property"), an existing building (the
"Building") located on the Property, other improvements located upon the
Property, and other fixtures and personal property used or useful in connection
with the foregoing. The building, Property, improvements, personal property and
fixtures are collectively referred to as the "Premises". Accordingly, and in
consideration of the covenants contained herein, the parties hereto agree as
follows:
Article 1. Lease of Premises
Landlord hereby leases to Tenant, and Tenant leases from Landlord, upon
the term and conditions hereinafter set forth, the Premises.
Article 2. Term
The rental term of this Lease shall commence on the 1st day of
November, 1991 (the "Commencement Date") and shall continue for a period of 5.25
years, expiring at 11:59 p.m. on the 31st day of January, 1997, unless sooner
terminated as provided herein.
Article 3. Rent, Utilities, Taxes and Security Deposit
3.1 Basic Rent. As annual base rent for the use of the Premises ("Base
Rent"), Tenant will pay Landlord, or Landlord's assigns, at the address set
forth in Article 22, and subject to the adjustment provisions of Section 3.3
below, Base Rent in the amount of $ See Annex B per year.
3.2 Additional Rent. Tenant shall also pay to Landlord (or other
parties as directed herein) as additional rent ("Additional Rent"), taxes,
utilities and other expenses as set forth in this Lease. Landlord shall have all
rights against Tenant for default in payment of Additional Rent as in the case
of arrears of Base Rent. Base Rent and Additional Rent are collectively referred
to herein as "Rent".
3.3. Base Rent Adjustment. Notwithstanding any provision of this Lease
to the contrary, the Base Rent provided in Section 3.1 shall be increased in the
following manner:
See Annex B
3.4 Manner of Payment. All Rent shall be paid to Landlord without
notice, deduction, abatement or setoff, in lawful money of the United States of
America, which shall be legal tender at the time of payment. Base Rent shall be
payable in advance in twelve equal monthly installments, due on the first day of
each month during the term of this Lease.
Following any default in or later payment of any monetary obligation due
Landlord by Tenant, Landlord shall have the right to demand that future payment
by Tenant be made in the form of certified funds or cashier's check only.
3.5 Late Charge. If Rent due Landlord under this Lease is not received
ten (10) days after it is due, a late fee of five percent/month of the amount
due shall be due and payable by Tenant as Additional Rent. The parties agree
that calculation of the exact costs Landlord will incur if Tenant makes late
payments would be difficult to determine but would include, without limitation,
processing and accounting charges and late charges which may be imposed upon
Landlord by the terms of any mortgage or deed of trust constituting a lien upon
the Premises. The parties agree that the late fee provided herein is a fair and
reasonable estimate of the costs Landlord will incur.
3.6 Tax Payments. Tenant shall reimburse Landlord, if Landlord has paid
or shall directly pay, as Additional Rent, all Impositions (as hereinafter
defined), prior to the date upon which any installment of any Imposition shall
become delinquent, or within thirty (30) days of being billed by Landlord for
Impositions paid by Landlord. Landlord shall provide Tenant with copies of all
applicable tax bills received by Landlord.
3.7 Definition of Impositions. "Impositions" shall mean real estate
taxes and assessments, special district taxes and assessments, occupancy taxes,
landlord taxes or similar taxes, whether or not imposed on or measured by the
Rent payable by Tenant, and other governmental levies and charges, general and
special, ordinary and extraordinary, unforeseen as well as foreseen, of any kind
and nature whatsoever, which are assessed, levied or imposed upon or in respect
of the Premises, any personal property (including trade fixtures) of any kind
in, upon or about the Premises or Tenant's operations at, occupancy of or
conduct of business at the Premises. If, by law, any Imposition is payable, or
may at the option of the taxpayer be paid, in installments (whether or not
interest shall accrue on the unpaid balance of such Imposition), Tenant may, at
Tenant's option, pay such Imposition in installments and, in such event, any
accrued interest on the unpaid balance of such Imposition shall be deemed to be
an Imposition as defined herein. Any Imposition relating to a fiscal period of
the taxing authority in which the term of this Lease shall commence or end
(whether or not such Imposition shall be assessed, levied, confirmed, imposed or
become a lien upon the Premises, or any part thereof, or become payable in
respect thereto during the term of this Lease) shall be apportioned so that
Tenant shall pay only that proportion of such Imposition which corresponds with
the portion of such fiscal period as is within the term hereof. If any
Imposition billed to Landlord includes amounts for ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, the
Imposition shall be apportioned sixty-two (62) percent to ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ and
thirty-eight (38) percent to ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇. Any Imposition billed directly
to Tenant shall not be apportioned, and any Imposition for personal property at
the premises shall be paid one-hundred (100) percent by Tenant.
3.8 Right to Contest. Tenant shall have the right to contest the amount
of validity, in whole or in part, of any Imposition by appropriate legal
proceedings diligently pursued if and for so long as the collection of the
Imposition so contested and the sale or any portion of the Premises to satisfy
the same shall be prevented or stayed by reason of such proceedings or
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pursuant to any statute or rule of law. Tenant shall indemnity and hold harmless
from and against any costs, fees or other liabilities accruing in or as a result
of any such proceedings, and Landlord shall indemnify and hold Tenant harmless
from any such liabilities incurred by Tenant as a result of Landlord's
contesting of Impositions.
3.9 Utilities. Tenant shall directly pay any and all costs, charges and
expense for utilities and services to or for the Premises, including, without
limitation, water, sewer, gas, electricity, lighting, heating, air conditioning,
power, telephone or other communication service and rubbish removal, and will
indemnify and hold Landlord harmless from and against any loss, cost or damage
with respect thereto. Tenant will be responsible for any tap or connection fees
charges for telephone service.
3.10 Security Deposit. Landlord acknowledges receipt of $8,000.00
security deposit from Tenant. The security deposit shall be held by Landlord and
may be used by Landlord, at it's sole discretion, as liquidation or damages
caused by Tenant's default under this Lease. Provided that no damages are
incurred, Landlord shall return the security deposit of $8,000.00 to Tenant
within sixty (60) days of termination on this Lease.
3.11 Net Lease. It is acknowledged by Tenant that the effect of this
Lease with respect to Landlord is intended to be absolute net, meaning that it
is intended that Tenant shall be responsible for paying all costs and expenses
of any kind with respect to the interior of Premises. To the extent that the
enumeration of Tenant's rental obligations contained in this Article 3 fails to
describe any costs or expenses directly related to the Premises, Tenant shall
nonetheless be obligated to pay such costs and expenses as Additional Rent
pursuant to the terms of this Lease.
Article 4. Use
4.1 Permitted Uses. Tenant shall use the premises for CAD, offices, and
manufacturing for mask and related services of Tenant, as permitted under
applicable zoning and other applicable rules and regulations.
4.2 Compliance with Laws. Tenant, at its own expense, will comply with
all federal, state, municipal and other laws, ordinances, rules and regulations
applicable to the Premises and the business conducted therein by Tenant.
Article 5. Repair and Maintenance
In addition to its other responsibilities under this Lease, Tenant
shall, throughout the term hereof and without costs to Landlord, take good care
of the Premises and shall keep and maintain the same in good order and condition
and shall make all necessary repairs to the interior of the Premises either for
damage caused by Tenant or as part of normal maintenance so as to preserve and
protect the premises.
Article 6. Additions and Fixtures
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6.1 Alterations. Tenant will make no alteration, change, improvement,
repair, replacement or addition to the Premises which costs more than $10,000
without the prior written consent of Landlord, which consent may not be
unreasonably withheld. If such prior written consent of Landlord is granted, the
work in such connection shall be at Tenant's expense.
6.2 Fixtures. Tenant and Landlord acknowledge that some personal
property currently installed in the premises has been installed by a party other
than Tenant or Landlord, and that Tenant may desire to install additional
personal property during the term of this lease. Personal property currently
installed in the Premises is listed on Annex C, attached hereto, and no personal
property currently fixed to the premises other than that listed on Annex C may
be removed by Tenant at the termination of this lease. Tenant agrees to remove
all personal property and, after removal of personal property, that the Premises
will be left in a broom clean and cosmetically finished condition, normal wear
and tear excluded.
Landlord's predecessor in interest has previously made some claim to
ownership or right to ownership of some of the personal property such as the
clean room. Tenant is buying this personal property from a creditor of the prior
tenant and the Landlord and Tenant agree this Landlord makes no claim of
ownership or right to ownership by virtue of any "fixture" laws regarding any of
the personal property set forth in Annex C or any additions or accessions to the
personal property by Tenant.
At the conclusion of this lease, Tenant agrees to remove the personal
property and to leave the areas of the premises from which the property is
removed in a clean, secure manner. For instance, all pipes shall be capped or
removed, all electrical service shall be safely terminated, etc.
If Tenant requests to not remove some personal property, written
permission must be first received from Landlord. Tenant agrees to not claim
title to any property not removed from the Premises (after written permission
from Landlord has been received) and all such property shall become the
possession of Landlord.
6.3 Lien of Tenants Furnishings. There shall be no lien except as is
created by a Court of competent Jurisdiction after notice upon hearing had.
Article 7. Mechanics' Liens
Tenant shall keep the Premises free from any liens arising out of any
work performed, materials furnished or obligations incurred by or on behalf of
Tenant. Tenant shall indemnify, hold harmless and defend Landlord from any liens
and encumbrances arising out of any work performed or materials furnished by or
at the direction of Tenant. Such indemnity shall include, without limitation,
all attorneys' fees and costs incurred by Landlord due to the filing of such
mechanic's lien or notice thereof. In the event that Tenant, within thirty (30)
days following the imposition of any such lien, shall not cause such lien to be
released of record by Payment or posting of a proper bond, in addition to all
other remedies provided herein and by law, Landlord shall have the right (but
not the obligation) to cause the same to be released by such means as it shall
deem proper, including bonding or payment of the claim giving rise to such lien.
All such
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sums paid by Landlord and all expenses incurred by it in connection therewith,
including attorneys fees and costs, shall be payable to Landlord by Tenant on
demand. Landlord shall have the right at all times to post and keep posted on
the Premises any notice permitted or required by law which Landlord shall deem
proper for the protection of Landlord and the Premises or any other party having
an interest therein from mechanics' and materialmen's liens. Under normal
circumstances Tenant shall give written notice to Landlord at least ten (10)
business days prior to the commencement of any work relating to alterations or
additions to the Premises and Landlord may post the Premises giving all such
persons notice of Landlord's nonliability for work performed or materials
supplied.
Article 8. Access by Landlord
Because of the nature of Tenant's business and the critical need to
maintain security, cleanliness and climate controls in certain areas, Landlord
and Landlord's agents and employees, except for emergency circumstances, shall
not enter the premises without prior notice to and escort by Tenant. Tenant
shall fully cooperate with Landlord to allow Landlord to perform needed
inspections or repairs, or evaluation by prospective tenants, lenders or
purchasers.
Article 9. Damage or Destruction
Article 9 is modified by the addition of the following:
The parties recognize that damage to certain critical areas such as the
clean room, Nikon II area, and KLA and Inspection areas would totally disrupt
Tenant's use of the Premises. Damage to these areas, not the fault of Tenant,
allows Tenant at its option to terminate this Lease. Whether there shall be the
alternative of partial abatement or temporary full abatement may be negotiated
by the parties, but absent agreement, Tenant may, within 30 days of the damage,
make its decision to terminate this Lease effective as of the date of damage.
The following provisions are subject to the preceding modifications.
9.1 Partial Destruction. If the Premises shall be partially damaged by
fire or other cause without the fault or neglect of Tenant, the damages shall be
repaired by and at the expense of Landlord and the Rent until such repairs are
made shall be apportioned according to the part of the Premises which is usable
by Tenant, If such partial damage is due to the fault or neglect of Tenant,
there shall be no apportionment or abatement of Rent, and the debris, if any,
shall be removed by, and at the expense of, Tenant. No penalty shall accrue for
reasonable delay which may arise by reason of adjustment of casualty insurance
on the part of Landlord or Tenant, for reasonable delay on account of shortages
of labor or materials, acts of God, or any other cause beyond Landlord's
control. Landlord shall not be obligated to restore fixtures, improvements or
other property of Tenant. Landlord's obligations to conduct the repairs
described above shall be conditioned upon the funds needed for accomplishing
such repairs being available by reason of payments from the casualty insurance
required to be carried by Tenant pursuant to Article 12 hereof. If any such
funds are not available by reason of Tenant's failure to strictly comply with
the term of Article 12, Tenant shall be liable for the full amount of insurance
benefit payments that would otherwise have been available to remedy such damage.
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9.2 Total Destruction. If the Premises are totally damaged or are
rendered wholly untenantable by fire or other cause, and Landlord shall decide
not to restore or rebuild the Premises, or if the Building shall be so damaged
that Landlord shall decide to demolish it or not to rebuild it, then in any of
such events Landlord may, within thirty days after such fire or other cause,
give Tenant notice of such decision, and thereupon the term of this Lease shall
expire by lapse of time upon the third day after such notice is given, and
Tenant shall vacate the Premises and surrender the same to Landlord. If this
Lease is so terminated, Landlord shall refund to Tenant any prepaid Rent
(unaccrued as of the date of damage or destruction), less any sums then owing to
Landlord by Tenant. Rent shall terminate as of the date of damage. If, however,
Landlord shall elect to restore the Building or the Premises, and shall so
notify Tenant in writing within thirty (30) days of the damage, then Tenant
shall have an additional thirty (30) days to decide whether to continue this
Lease or terminate this Lease as of the date of the damage, otherwise, this
Lease shall continue in full force and effect and such repairs and restoration
shall be made within a reasonable time after the damage shall have occurred,
subject to delays arising from shortages of labor or materials, delays in
insurance adjustment, acts of God, or any other cause beyond Landlord's control.
If such damage is without the fault or neglect of Tenant, and Landlord elects to
restore the Premises, then Rent shall be apportioned according to the portion of
the leased Premises which is usable by Tenant until such restoration is made.
Article 10. Condemnation
If all or any part of the critical portion or interest in the Premises
shall be taken as a result of the exercise of the power of eminent domain or
purchase in lieu thereof, Tenant may terminate at its option this Lease as of
the date of taking. If only a part of a noncritical area or interest in the
Premises or if a substantial portion of the Building is so taken, Tenant shall
have the right to terminate this Lease as to the balance of the Premises by
written notice to the other within thirty days after the date of taking;
provided, however, that a condition to the exercise by Tenant of such right to
terminate shall be that the portion of the Premises or Building taken shall be
of such extent and nature as to substantially handicap, impede, or impair
Tenant's use of the Premises, or the balance of the Premises remaining, for the
purposes for which they were leased. In the event of any taking, Landlord and
Tenant shall be entitled to compensation, damages, income, rent, and awards with
respect thereto except for an award, if any, specified by the condemning
authority for the fixtures and other property, that Tenant has the right to
remove upon termination of this Lease. Tenant shall have no claim against
Landlord for the value of any unexpired term. In the event of a partial taking
of the Premises which does not result in a termination of this Lease, the Rent
thereafter to be paid shall be equitably reduced.
Article 11. Liability and Indemnity
The other 11.1. General Indemnity. Each party agrees to indemnify and
hold the other harmless from all liabilities and claims (including costs,
expenses and attorneys' fees incurred in defending against such claims) arising
or alleged to arise from any act or omission of a party arising from any injury
or damage to any person or the property of any person occurring during the term
of this Lease in or about the Premises. Tenant agrees to use and occupy the
Premises and other facilities of the Building at its own risk and each party
hereby releases the other, its
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agents and employees, from all claims for any damage or injury to the full
extent permitted by law for damages not caused by negligence or breach of any
term of this Lease.
11.2 AND 11.3 WERE INTENTIONALLY OMITTED.
11.4 Security. Unless Landlord is responsible for actively breaching
Tenant's security measures, Landlord shall not be liable to Tenant or any other
person for any claim on account of any breach of security of the Premises, it
being understood and agreed that the security of the Premises is solely the
responsibility of the Tenant. In the event of damage to or destruction of the
Premises or repairs thereto made by Landlord pursuant to the provisions of this
Lease, Tenant shall make such arrangements as it shall deem necessary and
prudent to protect the security of the Premises and the contents thereof during
the period of repair, and Landlord shall have no responsibility whatsoever for
such arrangements.
11.5 Leasing of Adjacent Building. Landlord acknowledges that Tenant's
business can be critically impaired by vibration. Therefore, Landlord will not
lease to or permit the use of the adjoining building by a tenant whose activity
would generate strong earth vibrations which disrupt the operation of Tenant's
equipment.
Article 12. Insurance
12.1 Type of Insurance. During the term of this Lease, Tenant, at its
sole cost and expense, for the mutual benefit of Landlord and Tenant, shall
carry and maintain the following types of insurance, naming Landlord as an
additional insured:
(a) Casualty insurance covering the Premises against loss or
damage by fire, lightning, windstorm, explosion, riot, riot attending a
strike, civil commotion, damage from aircraft and vehicles, smoke
damage, and such other hazards as are embraced by standard extended
coverage endorsement, in an amount not less than the full replacement
value thereof. The proceeds of any such insurance otherwise payable to
Landlord or Tenant shall, at the direction of Landlord, be deposited
with a bank or trust company in an insurance proceeds trust, or be
subjected to such other form of control as Landlord may direct to
assure their use for the repair or rebuilding of the Premises as
permitted under Article 9 hereof.
(b) Comprehensive public liability insurance, including
property damage, insuring against liability for injury to persons or
damage to property occurring in or about the Premises or arising out of
the ownership, maintenance, use or occupancy thereof. Said insurance
shall be obtained in such amounts as reasonably approved by Landlord
for a combined single limit not less than $1 million per occurrence for
bodily injury and property damage.
(c) Worker's compensation insurance insuring Tenant from all
claims for personal injury and death in such amounts as may, from time
to time, be sufficient to pay the maximum accumulated award allowed by
applicable law.
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12.2 Proof of Insurance. Tenant shall furnish Landlord copies of said
insurance policies or certificates of insurance within ten days after the
execution hereof. Such policies shall provide that coverage may not be canceled
or reduced without at least fourteen days' written notice first being given to
Landlord. Tenant shall have the privilege of procuring and obtaining all such
insurance through its own sources; provided, that the Insurance carrier is
acceptable to Landlord, and further provided that if Tenant fails to procure and
maintain said insurance, Landlord may purchase the same at Tenant's cost, and
the cost thereof shall be Additional Rent which shall be due and payable to
Landlord on the data of the next monthly rental installment. Landlord may,
however, elect not to purchase such insurance for Tenant's benefit and, in lieu
thereof, declare Tenant's default hereunder.
Article 13. Assignment and Subletting
Tenant may assign this Lease to a successor subject to the prior
written approval of the Landlord, which shall not be unreasonably withheld.
Tenant may sublease only during the term of this Lease and only for rates and
charges the same as the rates and charges paid by Tenant. Tenant shall be solely
responsible for any sub-tenant.
Article 14. Right of Assignment by Landlord
The term "Landlord" shall mean only the owner, for the time being, of
the Building, and automatically upon the sale, assignment, transfer, or other
conveyance by such owner of its interest in the Building, such owner shall
thereupon be released and discharged from all covenants and obligations of the
Landlord, which discharge includes not only obligations that will accrue after
the date of discharge, but also obligations or liabilities that have accrued
before the date of discharge.
Article 15. Subordination
15.1 Subordination. This Lease and Tenant's rights hereunder are
subject and subordinate to any ground or underlying lease, easement, mortgage,
indenture, deed of trust or other encumbrance, together with any conditions,
renewals, extensions, modifications, consolidations and replacements thereof,
now or hereafter affecting or placed, charged or enforced against any such
ground or underlying lease or all or any portion of the Premises or any interest
of Landlord therein or Landlord's interest in this Lease and the leasehold
estate thereby created (except to the extent any such instrument shall expressly
provide that this Lease is superior thereto). This clause shall be
self-operative and no further instrument of subordination shall be required in
order to effectuate it. Nevertheless, Tenant shall execute, acknowledge and
deliver to Landlord, any time and from time to time, upon demand by Landlord,
such documents as may be requested by Landlord, any ground or underlying lessor
or any mortgagee, to confirm or effectuate any subordination hereunder. If
Tenant shall fail or refuse to execute, acknowledge and deliver any such
document within ten days after written demand therefor, Landlord, its successors
and assigns, shall be entitled to execute, acknowledge and deliver any and all
such documents for and on behalf of Tenant as attorney-in-fact for Tenant.
Tenant hereby constitutes and irrevocably appoints Landlord, its successors and
assigns as Tenant's attorney-in-fact to
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execute, acknowledge and deliver any and all documents described in this Section
15.1 for and on behalf of Tenant, as provided in this Section 15.1.
15.2 Attornment. Tenant agrees that in the event that any holder of any
mortgage, indenture, deed of trust or other encumbrance encumbering any part of
the Building becomes mortgagee in possession of the Premises, Tenant will pay to
such mortgagee all Rents subsequently payable hereunder. Further, Tenant agrees
that in the event of the enforcement by the trustee or the beneficiary under or
holder or owner of any such mortgage, deed of trust, land or ground lease of the
remedies provided for by law or by such mortgage, deed of trust, land or ground
lease, Tenant will, upon request of any person or party succeeding to the
interest of Landlord as a result of such enforcement, automatically become the
tenant of and attorn to such successor-in-interest without change in the terms
or provisions of this Lease. Upon request by such successor-in-interest and
without cost to Landlord or such successor-in-interest, Tenant shall execute,
acknowledge and deliver an instrument or instruments confirming the attornment
herein provided for.
Article 16. Quiet Enjoyment
Provided Tenant pays the Rent payable hereunder as and when due and
payable, keeps and fulfills all of the terms, covenants, agreements, and
conditions to be performed by Tenant hereunder, and is not in default under this
Lease, Tenant shall at all times during the Lease term peaceably and quietly
enjoy the leased Premises without any disturbance from Landlord or from any
other person claiming by, through, or under Landlord, subject to the terms,
provisions, covenants, agreements and conditions of this Lease and to the deeds
of trust, mortgages, ground leases, easements and encumbrances to which this
Lease is subject and subordinate.
Article 17. Default and Remedies
17.1 Events of Default. The occurrence or existence of any one or more
of the following events or circumstances shall constitute a default under this
Lease by Tenant:
(a) Tenant shall fail to pay within five days after receipt of
notice from Landlord stating that such amount is overdue, any
installment of Rent payable by Tenant under the terms of this Lease.
(b) Tenant shall make or attempt to make an assignment, sublet
or other transfer of the Lease mentioned in Article 13 without the
express prior written consent of Landlord.
(c) Tenant shall neglect or fail to perform or observe any of
the covenants herein contained on Tenant's part to be performed or
observed (other than those referred to in Sections 17.1(a) and 17.1(b)
above) and Tenant shall fail to remedy such default within ten days
after Landlord shall have given to Tenant written notice specifying
such neglect or failure (or within such period, if any, as may be
reasonably required to cure such default if it is of such nature that
it cannot be cured within such ten-day period, provided that Tenant
commences to
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remedy such default within such ten-day period and proceeds with
reasonable diligence thereafter to cure such default).
(d) This Lease or the Premises or any part thereof shall be
taken upon execution or by other process of law directed against
Tenant, or shall be taken upon or subject to any attachment at the
instance of any creditor of or claimant against Tenant, and such
attachment shall not be discharged or disposed of within fifteen days
after the levy thereof.
(e) Tenant shall vacate or abandon the Premises (which shall
be defined to include, but not be limited to, any absence by Tenant
from the Premises for five or more days) or lock them so as to prevent
the entry therein of Landlord or its representatives as permitted by
the terms of this Lease.
(f) Tenant or any guarantor of Tenant's obligations hereunder
shall (i) admit in writing its inability to pay its debts generally as
they become due; (ii) make an assignment of all or a substantial part
of its property for the benefit of creditors; (iii) apply for or
consent to or acquiesce in the appointment of a receiver, trustee or
liquidator of Tenant or such guarantor for all or a substantial part of
Tenant's or such guarantor's property or of the Premises or of Tenant's
interest in this Lease; or (iv) file a voluntary petition in bankruptcy
or a petition or an answer seeking reorganization under any bankruptcy
or insolvency law or an arrangement with creditors, or take advantage
of any insolvency law or file an answer admitting the material
allegations of a petition filed against Tenant or such guarantor in any
bankruptcy, reorganization or insolvency proceedings.
(g) The entry of a court order, judgment or decree without the
application, approval or consent of Tenant or any guarantor of Tenant's
obligations hereunder, as the case may be, approving a petition seeking
reorganization of Tenant or such guarantor under any bankruptcy or
insolvency law or appointing a receiver, trustee or liquidator of
Tenant or such guarantor or of all or a substantial part of Tenant's or
such guarantor's property or of the Premises or of Tenant's interest in
this Lease, or adjudicating Tenant or such guarantor a bankrupt or
insolvent, and such order, judgment or decree shall not be vacated, set
aside or stayed within thirty days from the date of entry.
17.2 Remedies. If Tenant shall default under this Lease as set forth in
Section 17.1, Landlord shall have the following rights and remedies, in addition
to all other remedies at law or equity, and none of the following, whether or
not exercised by Landlord, shall preclude the exercise of any other right or
remedy whether herein set forth or existing at law or equity, and all such
remedies shall be cumulative:
(a) Landlord shall have the right to terminate this Lease by
giving Tenant notice in writing at any time. No act by or on behalf of
Landlord, such as entry of the Premises by Landlord to perform
maintenance and repairs and efforts to relet the Premises, other than
giving Tenant written notice of termination, shall
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terminate this Lease. If Landlord gives such notice, this Lease and the
term hereof as well as the right, title and interest of Tenant under
this Lease shall wholly cease and expire in the same manner and with
the same force and effect (except as to Tenant's liability) on the date
specified in such notice as if such date were the expiration date of
the term of this Lease without the necessity of re-entry or any other
act on Landlord's part. Upon any termination of this Lease, Tenant
shall quit and surrender to Landlord the Premises as set forth in
Article 20. If this Lease is terminated, Tenant shall be and remain
liable to Landlord for damages as hereinafter provided and Landlord
shall be entitled to recover forthwith from Tenant as damages an amount
equal to the total of:
(i) the cost, including reasonable attorneys' fees,
of recovering the Premises;
(ii) all Rent accrued and unpaid at the time of
termination of the Lease, plus interest thereon at the rate
provided in Section 17.2(f); and
(iii) any other money and damages owed by Tenant to
Landlord.
In addition, Landlord shall also be entitled to recover from
Tenant as damages the amounts determined, at Landlord's election, under
(iv) or (v) below:
(iv) the amount of Rent that would have been payable
hereunder if the Lease had not been terminated, less the net
proceeds, if any, received by Landlord from any reletting of
the Premises, after deducting all costs incurred by Landlord
in finding a new tenant and reletting the space, including
costs of remodeling and refinishing space for a new tenant,
reasonable tenant inducements, reasonable brokerage
commissions or agents' commissions in connection therewith,
redecorating costs, attorneys' fees and ether costs and
expenses incident to the reletting of the Premises
(collectively referred to herein as "Reletting Costs");
provided, however, that Landlord shall have no obligation to
relet or attempt to relet the Premises. Tenant shall pay such
damages to Landlord on the days on which the Rent would have
been payable if the Lease had not terminated; or
(v) the present value (discounted at the rate of
eight percent per annum) of the balance of the Rent for the
remainder of the stated term of this Lease after the
termination date plus anticipated Reletting Costs, less the
present value (discounted at the same rate) of the fair market
rental value of the Premise for such period.
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No provision of this Lease shall limit or prejudice the right
of Landlord to prove and obtain as damages by reason of any termination
of this Lease, an amount equal to the maximum allowed by any statute or
rule of law in effect at the time when, and governing the proceedings
in which, such damages are to be proved, whether or not such amount be
greater, equal to, or less than the amounts referred to above.
(b) INTENTIONALLY OMITTED
(c) If Tenant shall default in making any payment required to
be made by Tenant (other than payments of Rent) or shall default in
performing any other obligations of Tenant under this Lease, Landlord
may, but shall not be obligated to, make such payment or, on behalf of
Tenant, expend such sum as may be necessary to perform such obligation.
All sums so expended by Landlord with interest thereon at the rate of
ten percent (10%) APR shall be repaid by Tenant to Landlord on demand.
No such payment or expenditure by Landlord shall be deemed a waiver of
Tenant's default nor shall it affect any other remedy of Landlord by
reason of such default.
(d) If Tenant shall default in making payment of any Rent due
under this Lease, Landlord may charge and Tenant shall pay, upon
demand, the late charges set forth in Section 3.3. Late payment
penalties are in addition to and shall not diminish or represent a
substitute for any or all of Landlord's rights or remedies under any
other provisions of this Lease.
(e) In any action of unlawful detainer commenced by Landlord
against Tenant by reason of any default hereunder, the reasonable
rental value of the Premises for the period of the unlawful detainer
shall be deemed to be the amount of Rent reserved in this Lease for
such period.
(f) Whenever Tenant shall be required to make payment to
Landlord of any sum with interest, interest on such sum shall be
computed from the date such sum is due until paid, at an interest rate
equal to ten percent per annum or, if such amount violates any then
applicable law with respect to interest rates, at the highest interest
rate otherwise allowable under then applicable law.
(g) As used in this Lease, the terms "re-enter," "re-entry,"
"take possession," "repossess" and "repossession" are not restricted to
their technical legal meaning.
Article 18. Nonwaiver
Waiver by Landlord of any right for any default of Tenant shall not
constitute a waiver of any right for either a subsequent default of the same
obligation or any other default. Receipt by Landlord of Tenant's keys to the
Premises shall not constitute an acceptance of surrender of the Premises.
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Article 19. Tenant's Remedies
If any act or omission by Landlord shall occur which would give Tenant
the right to damages from Landlord or the right to terminate this Lease by
reason of a constructive or actual eviction from all or part of the Premises or
otherwise, Tenant shall not ▇▇▇ for such damages or exercise any such right to
terminate until (i) it shall have given written notice of such act or omission
to Landlord and to holder(s) of the indebtedness or other obligations secured by
any mortgage or deed of trust affecting the Premises or the Building, if the
name and address of such holder(s) shall previously have been furnished to
Tenant, and (ii) a reasonable period of time for remedying such act or omission
shall have elapsed following the giving of such notice, during which time
Landlord and such holder(s), or either of them, their agents or employees, shall
be entitled to enter upon the Premises and do therein whatever may be necessary
to remedy such act or omission.
Article 20. End of Term
20.1 Condition of Return. Upon the expiration or other termination of
this Lease, Tenant shall vacate and surrender to Landlord the Premises, broom
clean, in good order and repair, ordinary wear and tear excepted. Tenant shall
remove all property of Tenant, as directed by Landlord. Any property left on the
Premises at the expiration or other termination of this Lease, or after the
occurrence of any default as set forth in Section 17.1, may, at the option of
Landlord, either be deemed abandoned or be placed in storage at a public
warehouse in the name of and for the account of and at the expense and risk of
Tenant. If such property is not claimed by Tenant within ten days after such
expiration, termination or the happening of an event of default, it may be sold
or otherwise disposed of by Landlord. Tenant expressly releases Landlord from
any and all claims and liability for damage to or loss of property left by
Tenant upon the Premises at the expiration or other termination of this Lease
and Tenant hereby indemnifies Landlord against any and all claims and liability
with respect thereto.
20.2 Hold-over. If Tenant holds over after the term of this Lease
including any option extension with the consent of Landlord, express or implied,
such tenancy shall be from month to month only and shall not be a renewal
hereof, and Tenant shall pay the Rent and all other charges at the rate most
recently charged under the Lease and also comply with all of the terms,
covenants, conditions, provisions and agreements of this Lease for the time
during which Tenant holds over. If Tenant holds over after the said term without
the consent of Landlord and shall fail to vacate the Premises after Tenant's
right to occupy the Premises ceases, thereafter, and notwithstanding anything to
the contrary contained elsewhere in this Lease, Tenant shall be liable to
Landlord for Rent and all other charges at twice the rate most recently charged
under the Lease. If the Premises are not surrendered at the end of the term,
Tenant shall be responsible to Landlord for all damage which Landlord shall
suffer by reason thereof, and Tenant hereby indemnifies Landlord against all
claims made by any succeeding tenant against Landlord, resulting from delay by
Landlord in delivering possession of the Premises to such succeeding tenant. If
the last day of the term of this Lease or any renewal hereof falls on Sunday or
a legal holiday, this Lease shall expire on the immediately preceding business
day. Tenant's obligation
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to observe or perform all of the terms, covenants, conditions, provisions and
agreements of this Article shall survive the expiration or other termination of
this Lease.
Article 21. Estoppel Certificate
Tenant will, at any time and from time to time, within ten days after
request by Landlord, execute, acknowledge, and deliver to Landlord a statement
in writing certifying that this Lease is unmodified and in full effect (or, if
there have been modifications, that this Lease is in full effect as modified,
and setting forth such modifications) and the dates to which the Rent has been
paid, and either stating that to the knowledge of the signer of the certificate
no default exists hereunder or specifying each such default of which the signer
may have knowledge. Such statement is understood to be intended to be relied
upon by any prospective purchaser or mortgagee of the Building, the Premises or
any portion thereof. Landlord shall prepare all estoppel certificates.
Article 22. Notice
Any notice which may or shall be given under the terms of this Lease
shall be in writing and shall be either delivered in person or sent by United
States registered or certified mail, return receipt requested, postage prepaid,
and addressed as follows:
To the Landlord at: ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To the Tenant at: Premises
▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
A party may change such address from time to time by giving notice as provided
above. Notice shall be deemed given when delivered (if delivered by hand) or
three days after deposited in the United States mail, postage prepaid, as
provided above (if sent by mail). If the Premises is unoccupied, or if the
occupants of the Premises will not accept the hand delivery of any items, such
items will be deemed to be delivered to the Premises at the time that they are
taped to or otherwise attached to an exterior door of the Premises.
Article 23. Miscellaneous
23.1. Entire Agreement. This instrument and any attached addenda or
exhibits constitute the entire agreement between Landlord and Tenant; no prior
written nor prior or contemporaneous oral promises or representations shall be
binding. This Lease shall not be amended, changed or extended (except as
provided in Article 20) except by written instrument signed by both parties
hereto. Words of any gender shall include each other gender where appropriate.
The provisions of this instrument shall be binding upon and inure to the benefit
of the heirs, executors, administrators, successors, and assigns of the parties,
but this provision shall in no way alter the restrictions herein in connection
with assignment and subletting by Tenant.
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23.2. INTENTIONALLY OMITTED
23.3 Unenforceability. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws effective during
the term of this Lease, then in such event it is the intention of the parties
hereto that the remainder of this Lease shall not be affected thereby, and it is
also the intention of the parties to this Lease that in lieu of each clause or
provision of this Lease that is illegal, invalid or unenforceable, there be
added as a part of this Lease a clause or provision similar in terms and effect
to such illegal, invalid or unenforceable clause or provision as may be possible
and would be legal, valid or enforceable. Each and every covenant and agreement
contained in this Lease is, and shall be construed to be, a separate and
independent covenant and agreement.
23.4 Construction. The language in all parts of this Lease shall be
construed according to its normal and usual meaning and not strictly for or
against either Landlord or Tenant.
23.5 Time. Time is of the essence with respect to the performance of
each and every provision of this Lease.
23.6 Recording. This Lease shall not be recorded without the prior
written consent of Landlord. Any such unauthorized recording shall give Landlord
the right to declare a default under this Lease and pursue the remedies provided
herein. A memorandum of this Lease shall be recorded.
23.7 Name Changes. If the name of Tenant or any successor or assign
shall be changed during the term of this Lease, such party shall promptly notify
Landlord thereof, which notice shall be accompanied by a certified copy of the
document effecting such change of name.
23.8 Applicable Law, Venue and Jurisdiction. This Lease shall be
governed by and construed in accordance with the laws of the State of Colorado.
Tenant hereby consents to the exclusive venue and jurisdiction of the courts of
the State of Colorado, or courts of the United States of America located in
Colorado, with respect to any proceedings related to this Lease.
23.9 Headings. Article and sections headings are for convenience only
and shall in no way define or limit the scope or context hereof.
23.10 Attorneys' Fees. In the event either party defaults in the
performance of any of the terms of this Lease and the other party employs an
attorney in connection therewith, the defaulting party agrees to pay the other
party's reasonable attorneys' fees.
23.11 Tenants' Representatives. At any place in this lease where
restrictions are placed on the actions of any party, such restrictions also
apply, with equal force and effect, to all of that party's employees, agents,
contractors, customers, licensees, invitees and other similar parties who have
access to the Premises.
Executed on this 21st day of November, 1991.
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LANDLORD:
Homburg Holdings (CO) Inc.
--------------------------------------------
By Homburg Realty (US) Inc., agent for owner
-----------------------------------------
/S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Manager of Operations
TENANT:
Attest: MICROPHASE LABORATORIES, INC.
By /S/ Signature not decipherable By /S/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------ -----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title Attorney for Tenant Title: President
---------------------------
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Annex A
[Diagram of Premises]
-17-
Annex B
November 01, 1991 - December 31, 1991 $5,000.00
January 1992 No Rent
February 01, 1992 - July 31, 1992 $4,545.00
August 01, 1992 - January 31, 1993 $5,045.00
February 01, 1993 - July 31, 1993 $6,500.00
August 01, 1993 - July 31, 1994 $7,000.00
August 01, 1994 - July 31, 1995 $7,500.00
August 01, 1995 - July 31, 1997 $8,000.00
Tenant pays:
------------
62% of property tax (approximately $10,000/year)
Insurance (approximately $1,800/year)
-18-
Annex C
Equipment list dated 3/31/91
described as fixed assets of Rexotech, Inc.
-19-
Annex D
1. Improvements. Landlord agrees to remodel front offices on the first
floor by removing all paneling, retexturing and repainting all walls,
doors, and trim, and to recarpet space with Landlord's building
standard carpet. Color scheme and quality shall be similar to that of
the Homburg Executive Suites. Landlord agrees to pay $ 5,000.00 toward
the cost of said Improvements. Tenant agrees to reimburse Landlord for
any excess amount expended by Landlord within 30 days of being billed
for same.
Landlord will replace the existing roof on the building, which work
will commence within 30 days of execution of this lease weather
permitting. Landlord agrees to keep inconvenience to Tenant's business
at a minimum during roof replacement.
2. Tenant is granted an option to renew this lease for one additional 5
year term at $8,000.00 per month basic rent.
3. Tenant is granted an option to purchase the building at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
at a price to be determined by the parties, subject only to the
approval of the Mortgagee, Canada Life Assurance Company.
The purchase price shall be determined by appraisal primarily based on
the income stream from rentals. If the parties do not agree on the
purchase price as determined by this appraiser, each shall select an
appraiser who will then select a third appraiser. The costs of the
appraisers shall be borne equally. The majority valuation of the
appraisers shall apply as the option price.
4. Early Termination. Tenant is acquiring the personal property and
equipment at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ from ▇▇▇▇▇ Maytag (or entities under
his control). Title to this property is not yet perfected in Maytag. If
at any time during the next six months Maytag is not able to convey
this property with clear title to Tenant, Tenant may exercise the
option to terminate this Lease.
-20-
ADDENDUM TO LEASE
This Addendum is entered into by and between Homburg Holdings (CO)
Inc., a Colorado corporation (" Lessor") and Photronics Colorado, Inc., a
Colorado corporation ("Lessee") for the premises commonly known as ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇. The original lease, dated November 21, 1991,
has been previously assigned to Lessee by Microphase Laboratories, Inc., the
original Lessee. Lessor consented to this assignment on June 16, 1995.
Subject to the terms and conditions of the Lease, Lessee has exercised
its rights to extend the term of the lease for five (5) years commencing
February 1, 1997 and expiring on January 31, 2002, at $8,000 per month basic
rent.
Lessor and Lessee, by this Addendum, now agree to grant to Lessee an
additional renewal option as follows:
(a) Option Period. So long as Lessee is not in default under this
lease, either at the time of exercise or at the time the extended term
commences, Lessee will have the option to extend the term of this lease for an
additional period of five (5) years (the "option period") on the same terms and
conditions of this lease, except that the monthly base rent will be determined
pursuant to paragraph (b), and Lessee's right to an earlier cancellation will be
as set forth in paragraph (c). Lessee will exercise its option by delivering to
Lessor written notice ("option notice") at least one hundred eighty days (180)
days but not more than three hundred and sixty (360) days prior to the present
expiration of the term of this lease. This lease now expires on January 31,
2002.
(b) Option Period Base Monthly Rental. The base monthly rent for the
option period will be as follows:
MONTHLY RENT/
PAYMENT SQ. FT.
------- -------
February 1, 2002 - January 31, 2003 $12,375 $5.50
February 1, 2003 - January 31, 2004 $13,500 $6.00
February 1, 2004 - January 31, 2005 $14,625 $6.50
February 1, 2005 - January 31, 2006 $15,750 $7.00
February 1, 2006 - January 31, 2007 $16,875 $7.50
(c) Lessee's Right to Cancel Lease During Option Period. Subject to the
provisions of this paragraph, Lessee may cancel this lease.
(i) To be effective, Lessee must give Lessor, at any time
during the option period, at least one (1) year prior written notice of Lessee's
election to cancel this lease.
(ii) Lessee may cancel this lease only as of the last day of a
month (the "cancellation date"). The cancellation date will be stated in
Lessee's notice and will be no less than three hundred and sixty-five (365) days
after the date of Lessee's notice.
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(iii) Lessor may reject Lessee's election to cancel this lease
if an event of default has occurred at the time of the election.
(iv) If Lessor does not reject Lessee's election to cancel
this lease, Lessee will cure any event of default under this lease that exists
on the cancellation date, and Lessee's obligation to cure any such default
within the period of time specified in this lease will survive the cancellation
date.
(v) On or prior to the cancellation date, Lessee will
surrender possession of the premises to Lessor in accordance with the provisions
of this lease, as if the cancellation date were the expiration date of this
lease.
(vi) Following surrender of possession and the cancellation
date, Lessor and Lessee will be relieved of their obligations under this lease,
except those accruing prior to the cancellation date.
Dated: December 16, 1996
LESSOR - HOMBURG HOLDINGS (CO), INC.
By: /S/ Signature not decipherable
------------------------------
Title: Manager of Operations
---------------------------
Dated: December 2, 1996
LESSEE - PHOTRONICS COLORADO, INC.
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Senior Vice President
---------------------------
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