This Lease Agreement involves
Title: BUILDING LEASE AGREEMENT
BUILDING LEASE AGREEMENT
Hynix Semiconductor Inc.
MagnaChip Semiconductor, Ltd.
with respect to
M4 Building located in Ichon
the Republic of Korea
October 6, 2004
/*****/ = Portions of this exhibit are subject to a request for confidential treatment and have been redacted and filed separately with the Securities and Exchange Commission.
TABLE OF CONTENTS
|Maintenance; Lessor Maintenance Fee; Utility Fee||13|
|Payment of Rent and Lessor Maintenance Fee||15|
|Representations, Warranties and Covenants||17|
|Registration of the Lease Right||23|
|Use, Improvements and Alterations||23|
|Restricted Matters for Lessee||24|
|Termination; Reduction of Leased Premises||27|
|Disputes and Governing Law||31|
|Change of Applicable Laws||32|
|Property Damage and Condemnation||34|
|Right to Expand into Expansion Space||36|
|EXHIBIT A-1||LEASED PREMISES, COMMON AREAS AND RESTRICTED AREAS WITHIN LEASED BUILDING (M4 Building)|
|EXHIBIT A-2||LEASED PREMISES, COMMON AREAS AND RESTRICTED AREAS WITHIN LEASED BUILDING (New Leased Premises)|
|EXHIBIT B-1||LEASED BUILDING AND ICHON COMPLEX|
|EXHIBIT C||LESSOR MAINTENANCE SERVICES|
|EXHIBIT D||RULES AND REGULATIONS|
BUILDING LEASE AGREEMENT
This BUILDING LEASE AGREEMENT (this “Agreement”), dated as of October 6, 2004, is entered into by and between:
|(1)||Hynix Semiconductor Inc., a company organized and existing under the laws of the Republic of Korea (“Korea”) with its registered office at San-136-1, Ami-Ri, Bubal-Eub, Ichon-Si, Kyoungki-Do, Korea (“Lessor”); and|
|(2)||MagnaChip Semiconductor, Ltd., a company organized and existing under the laws of Korea with its registered office at 1 Hyangjeong-dong, Heungduk-gu, Cheongju City, Chung Cheong Bok-do, Korea (“Lessee”) (each a “Party”, and collectively the “Parties”).|
WHEREAS, the Parties have entered into a certain business transfer agreement dated June 12, 2004, as amended (the “BTA”) pursuant to which, among other things, Lessee has agreed to acquire the Acquired Assets (as defined in the BTA) from Lessor subject to the terms and conditions set forth in the BTA;
WHEREAS, the Parties desire to enter into an agreement as contemplated by the BTA whereby Lessor leases to Lessee all or certain parts of the Leased Building (as defined below), which are necessary for Lessee’s Business (as defined below) and for the operation of facilities necessary for its business, in accordance with this Agreement; and
WHEREAS, the execution and delivery of this Agreement is a condition to the Closing under the BTA.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter set forth, and intending to be legally bound hereby, Lessor and Lessee agree as follows:
Article 1. Definitions
|1.1.||Unless otherwise defined herein or defined in the BTA, all capitalized terms shall have the meanings set forth below:|
“Affiliate” shall have the meaning ascribed to such term in the BTA.
“Alterations” shall have the meaning ascribed to such term in Section 9.3.
“Alternate Space” shall have the meaning ascribed to such term in Section 7.2.
“Applicable Laws” shall mean all laws, constitutions, statutes, codes, ordinances, decrees, rules, regulations, municipal by-laws, judicial or arbitral or administrative or ministerial or departmental or regulatory judgments, orders, decisions, rulings or awards, consent orders and decrees, policies, guidelines or any interpretations of any of the foregoing, including general principles of civil law and equity, issued by any Governmental Entity having or exercising jurisdiction over or otherwise affecting any Party, the Business or the Leased Building.
“ASTEC Agreement” shall have the meaning ascribed to such term in Section 2.5.
“BTA” shall have the meaning ascribed to such term in the Recitals.
“Business” shall mean any business conducted by the Lessee as of the Closing Date as well as Permitted Uses.
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“Calculation Date” shall have the meaning ascribed to such term in Section 4.
“Closing” shall have the meaning ascribed to such term in the BTA.
“Closing Date” shall have the meaning ascribed to such term in the BTA.
“Common Areas” shall mean Common Areas of the Leased Building and Common Areas of the Ichon Complex as appropriate for the context.
“Common Areas of the Leased Building” shall mean the areas of the Leased Building used in common by Lessor and Lessee on a shared basis, including the corridors, hallways, stairways, entryways and lavatories, elevators, central mechanical rooms, elevator machine rooms, pump rooms, loading dock facilities, electrical and communication rooms, postal, security facilities, janitorial facilities, corridors, lobbies, reception areas, atriums, fire vestibules, elevator foyers, service elevator receiving areas, mailrooms, electric and communication closets, public areas, as well as balconies, terraces and patios on floors where other Common Areas of the Leased Building exist.
“Common Areas of the Ichon Complex” shall have the meaning set forth in Section 2.2 of the Lease.
“Consents” shall mean any consents, approvals, waivers or authorizations to be obtained from, or notices to be given to, any persons or entities, and includes Governmental Authorizations.
“Coordinating Committee” shall have the meaning ascribed to such term in Section 26.1.
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“Damages” shall mean any and all losses, settlements, expenses, liabilities, obligations, claims, damages (including any governmental penalty or costs of investigation, clean-up and remediation), deficiencies, royalties, interest, costs and expenses (including reasonable attorneys’ fees and all other expenses reasonably incurred in investigating, preparing or defending any litigation or proceeding, commenced or threatened incident to the successful enforcement of this Agreement), the extent of which are recoverable under Korean laws but shall specifically exclude Excluded Damages.
“Due Date” shall have the meaning ascribed to such term in Section 6.1.
“Event of Force Majeure” shall have the meaning ascribed to such term in Section 25.1.
“Excluded Damages” shall mean any punitive damages.
“Extension Term” shall have the meaning ascribed to such term in Section 3.1.
“General Service Supply Agreement” shall mean that certain General Service Supply Agreement between Lessor and Lessee, dated as of the same date hereof.
“Governmental Authorization” shall mean any approval, consent, license, permit, waiver or other authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Entity or otherwise pursuant to any Applicable Law, and any registration with, or report or notice to, any Governmental entity pursuant to any Applicable Law.
“Governmental Entity” shall mean a court, arbitral tribunal, administrative agency or commission or other governmental or other regulatory authority or agency.
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“Grace Period” shall have the meaning ascribed to such term in Section 16.1.
“Ichon Complex” shall mean the facilities owned by Lessor, located at Ichon, Korea, and more specifically depicted on Exhibit B.
“Indemnified Person” of a Party shall mean the Party and its Subsidiary and any shareholder, partner, member, director, officer, employee, agent or representative of the Party or such Subsidiary.
“Initial Lease Term” shall have the meaning ascribed to such term in Section 3.1.
“Invoice” shall have the meaning ascribed to such term in Section 6.1.
“Land” shall mean certain portions of the lot on which the Leased Building is located, as more specifically identified on Exhibit B-2.
“Leased Building” shall mean the M4 Building owned by Lessor, located in the Ichon Complex, as more specifically identified in Exhibit B-1.
“Leased Premises” shall mean the portion of the Leased Building occupied exclusively by the Lessee, comprising approximately 1,439.32 square meters and more specifically outlined on Exhibit A-1.
“Lease Right” shall have the meaning ascribed to such term in Section 2.3.
“Lease Term” shall have the meaning ascribed to such term in Section 3.1.
“Lease Year” shall mean the one year period beginning on the Closing Date and each anniversary thereafter.
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“Lessee” shall have the meaning contained in the Preamble of this Agreement.
“Lessor” shall have the meaning contained in the Preamble of this Agreement.
“Lessor Maintenance Fee” shall have the meaning contained in Section 5.2.
“Lessor Work” shall have the meaning contained in Article 11.
“Lien” shall mean any lien, charge, claim, agreement to sell, pledge, security interest, judgment, conditional sale agreement or other title retention agreement, finance lease, mortgage, deed of trust, security agreement, right of first refusal or offer (or other similar right), option, restriction, tenancy, license, covenant, encroachment (whether upon any real property or by any improvement situated on any real property onto any adjoining real property or onto any easement area), right of way, easement, title defect or other encumbrance or title matter, existing as of the Closing Date.
“New Leased Premises” shall have the meaning ascribed to such term in Section 2.5.
“Other Costs” shall have the meaning ascribed to such term in Section 6.3.
“Other Occupants of the Ichon Complex” shall mean third parties leasing space within the Ichon Complex.
“Permitted Uses” shall mean the use of the Leased Building (i) to conduct the Business or any other semiconductor, information technology or other technology related business, and (ii) for office use and ancillary uses relating thereto.
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“Proceeding” shall mean any action, arbitration, audit, hearing, investigation, litigation or suit (whether civil, criminal, administrative, or investigative) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Entity.
“Property Damage” shall have the meaning ascribed to such term in Section 21.1.
“Rent” shall have the meaning ascribed to such term in Article 4.
“Rules and Regulations” shall mean the reasonable rules and regulations, including those attached as Exhibit D to this Agreement, adopted by Lessor and applied generally to the Leased Premises, Common Areas of the Leased Building and Common Areas of the Ichon Complex, if any, (a) which rules and regulations have been previously provided to Lessee, (b) shall be uniformly applied to all occupants of the Leased Premises, Common Areas of the Leased Building or Common Areas of the Ichon Complex, including Lessor, and (c) do not diminish the rights or increase the liabilities of the Lessee as otherwise provided under this Lease.
“Subsidiary” shall have the meaning ascribed to such term in the BTA.
“Substitute Premises” shall have the meaning ascribed to such term in Section 21.1.
“Successor” shall have the meaning ascribed to such term in Section 14.1.
“Taxes” shall mean any and all taxes, fees, levies, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Entity pursuant to any Applicable Law levied on the Leased Building. Taxes shall not include any taxes on income, rents, franchise, gift, gross receipts, or capital stock tax, or similar tax arising from the Lessor’s receipt of rent.
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“Utilities Fee” shall have the meaning ascribed to such term in Section 5.4.
“Utilities Services” shall have the meaning ascribed to such term in Section 5.4.
“VAT” shall mean the value added Tax required to be paid to the relevant Governmental Entity in respect of the lease of the Leased Building to Lessee.
|1.2.||Rules of Interpretation .|
|(a)||When a reference is made in this Agreement to a section or article, such reference shall be to a section or article of this Agreement unless otherwise clearly indicated to the contrary.|
|(b)||Whenever the words “include”, “includes” or “including” are used in this Agreement they shall be deemed to be followed by the words “without limitation.”|
|(c)||The words “hereof”, “hereto”, “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and article, section, paragraph and exhibit references are to the articles, sections, paragraphs and exhibits of this Agreement unless otherwise specified.|
|(d)||The meaning assigned to each term defined herein shall be equally applicable to both the singular and the plural forms of such term, and words denoting any gender shall include all genders. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning.|
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|(e)||A reference to any party to this Agreement or any other agreement or document shall include such party’s successors and permitted assigns.|
|(f)||A reference to any legislation or to any provision of any legislation shall include any amendment to, and any modification or re-enactment thereof, any legislative provision substituted therefor and all regulations and statutory instruments issued thereunder or pursuant thereto.|
|(g)||The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Agreement.|
|(h)||Headings are for convenience only and do not affect the interpretation of the provisions of this Agreement.|
|(i)||Any Exhibits attached hereto are incorporated herein by reference and shall be considered as part of this Agreement.|
Article 2. Premises
|2.1.||In consideration of the Rent hereby agreed to be paid to Lessor by Lessee and the agreements and covenants herein made by Lessee, during the Lease Term, Lessor hereby leases to Lessee the Leased Premises, and grants the right to use Common Areas of the Leased Building and the right to use Common Areas of the Ichon Complex on a non-exclusive basis with Lessor upon the terms and conditions contained herein.|
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|2.2.||As consideration for the Rent hereby agreed to be paid to Lessor by Lessee, as an essential inducement to Lessee to enter into this Agreement, as one of the necessary rights for the use and benefit of this Agreement by Lessee, and as consideration for the agreements and covenants herein made by Lessee, Lessor hereby grants to Lessee with a right (i) to access and ingress to, and egress from, the Ichon Complex for the purpose of using the Leased Premises and any Expansion Space, if applicable, in accordance with this Agreement, (ii) to use the Common Areas of the Leased Building and (iii) to pass and repass to and from and through the Leased Building or any part thereof over and along roads, accessways, paths, corridors, hallways, highways, skybridges, walkways, arcades and all landscaped areas (including pools and fountains) and other thoroughfares within the Ichon Complex owned by Lessor (together the “Common Areas of the Ichon Complex”), provided that Lessee shall fully comply with all Applicable Laws and applicable Rules and Regulations. Lessor represents that all of such portions of the Ichon Complex are available for use by Lessee for the purpose using the Leased Premises or operating the Business. Lessor acknowledges that any reduction in the rights granted to Lessee under this Section 2.2 would cause immediate and irreparable harm to Lessee and will entitle Lessee, in addition to any other remedies Lessee may have hereunder or otherwise under Applicable Laws, to stop any such reduction by injunction, whether such reduction arises from the acts of Lessor, or any other party claiming an interest in the Ichon Complex against Lessor. The rights granted hereunder shall be integral to the grants of the rights under Section 2.1 and elsewhere in this Agreement, shall benefit Lessee and run with Lessee’s interest under this Agreement, and shall automatically pass to any successor and permitted assign of Lessee.|
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|2.3.||Lessee acknowledges and agrees that Lessee has the right to occupy and use the Leased Premises only for the purposes provided, and upon the terms and conditions set forth, in this Agreement. In addition, Lessor hereby grants to Lessee a right to register the lease and rights created under this Agreement (“ deunggi imchakwon ”) over the Leased Premises (the “Lease Right”) with the relevant real property registry offices, having a term of the Lease Term. The Parties each, upon the request of the other, agree to submit a joint application to re-register the Lease Right to include any Extension Term. Lessor will take any action necessary to maintain or cause to be maintained the Lease Right during the Lease Term.|
|2.4.||In addition to the Leased Premises leased herein, Lessor and Lessee acknowledge and agree that there may be additional space which has not been identified but which historically has been used by the System IC Division of Lessor and which shall continue to be required or desired by Lessee. If, within one year of the Closing Date, any such additional space is identified and requested by Lessee, Lessor shall provide such additional space to Lessee in a manner consistent with the other Leased Premises, at a price no greater than actual cost.|
Lessor may request within the first sixty (60) days’ after the Closing by sixty (60) days’ prior written notice to Lessee that Lessee relocate its Leased Premises (the “New Leased Premises”) so long as the following conditions are satisfied: (a) the location and size shall be as shown on Exhibit A-2, (b) all terms and conditions set forth herein shall
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remain in full force and effect with respect to the New Leased Premises (except that the Agreement will be amended solely to attach a new Exhibit B depicting the New Leased Premises), and (c) Lessor shall pay all relocation costs relating to such relocation. In the event that Lessee relocates to the New Leased Premises, (a) Lessee has the right to expand into the Expansion Space in accordance with the terms of Article 23, and (b) to the extent that Lessee enters into an agreement with ASTEC (Hyundai Advanced Service Technology) (“ASTEC”) for certain of the Utilities Services (the “ASTEC Agreement”), Lessor will provide those services not otherwise provided by ASTEC which Lessor is obligated to provide hereunder, and the Utilities Fee shall thereafter be reduced pro rata commencing with the next due monthly payment.
|2.6.||Each Party shall cooperate with the other Party and take or cause to be taken such actions as may be reasonably requested by the other Party in order to comply with the other Party’s reasonable security rules and regulations.|
Article 3. Term
The initial term of this Agreement (the “Initial Lease Term”) shall be for one (1) year from the Closing Date, which Initial Lease Term shall, subject to the termination provisions of Article 13, be extended for successive one (1) year periods for a total of two (2) years at Lessee’s option (each, an “Extension Term”; the Lease Term and all Extension Terms are collectively referred herein as the “Lease Term”) (i) unless otherwise agreed between the Parties and (ii) as long as the Leased Building remains on the Land and Lessee uses the Leased Premises for the purpose of operating the Business. Additional Extension Terms, if any, may be mutually agreed upon by the Parties.
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Article 4. Rent; Taxes
|4.1.||The monthly rent for the Leased Premises, exclusive of VAT (the “Rent”), shall be [*****] per square meter multiplied by the total square meters of the Leased Premises and Lessee’s share of the Common Areas of the Leased Building (which is 163.74 square meters as of the Closing Date) for the Initial Term and the first year of the Extension Term. For the second year of the Extension Term, the Rent will be recalculated to increase or decrease by the same percentage as the change in the consumer price index as published by the Korea National Statistical Office of the Ministry of Finance and Economy (each, an “Index”), or any of its equivalents if an Index is not available, for the period from the last day of the Initial Term through the first day of the second year of the Extension Term. At the Closing Date, the square meters of the Leased Premises are 1,439.32.|
Article 5. Maintenance; Lessor Maintenance Fee; Utility Fee
|5.1.||Lessor shall be obligated to perform all maintenance and repairs, and to the extent not provided for in the General Service Supply Agreement, to supply all customary services with respect to the Leased Premises and Common Areas as more fully described on Exhibit C (“Lessor Maintenance Services”).|
|5.2.||The amount of monthly maintenance fee for the Lessor Maintenance Services, exclusive of VAT, (the “Lessor Maintenance Fee”) shall be [*****] per square meter multiplied by the total square meters of the Leased Premises for the Lease Term.|
|/*****/||= Portions of this exhibit are subject to a request for confidential treatment and have been redacted and filed separately with the Securities and Exchange Commission.|
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|5.3.||Lessor shall perform all Lessor Maintenance Service necessary to maintain the Leased Building in as good condition as exists as of the Closing Date, reasonable wear and tear excepted.|
|5.4.||Lessor shall provide all utilities to the Leased Premises which are necessary and appropriate for the operation of the Business consistent with utilities provided immediately prior to the Closing Date, including, without limitation, water, sewer, telephone, electricity (including from Sithe Ichon Cogeneration Company Limited) and gas (collectively, the “Utilities Services”) and to the extent not provided for in the General Service Supply Agreement or pursuant to the ASTEC Agreement. The amount of monthly utilities fee for such service (including service provided by Sithe Ichon Cogeneration Company Limited) (the “Utilities Fee”) shall be based on actual usage for the Term.|
|5.5.||Notwithstanding anything herein to the contrary, the Parties acknowledge and agree that it is their mutual intent that each of the Lessor Maintenance Fee for the Lessor Maintenance Services and the Utilities Fee for the Utilities Services provided hereunder shall be no greater than the actual cost reasonably incurred to provide such Lessor Maintenance Services and Utilities Services, respectively. The Parties agree to cooperate in good faith in furtherance of the foregoing, including by adjusting the Lessor Maintenance Fee and/or Utilities Fee from time to time if necessary in order to effectuate this intent. Lessor shall use its commercially reasonable efforts to minimize the costs incurred to provide the Lessor Maintenance Services.|
|5.6.||The Lessor Maintenance Fee and Utilities Fee shall be charged from the Closing Date.|
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Article 6. Payment of Rent and Lessor Maintenance Fee
|6.1.||Lessor shall provide an invoice (the “Invoice”) to Lessee by the 10th day of each calendar month which shall include the amounts of Rent (including Taxes), Lessor Maintenance Fee, Other Costs (as defined in Section 6.3), Utilities Fee and the corresponding VAT amount payable by Lessee for such month. Lessee shall pay in aggregate the Rent, Lessor Maintenance Fee, Other Costs, Utilities Fee and the corresponding VAT amount stated on each Invoice to the Lessor’s designated account, or as otherwise designated by Lessor, by means of a wire transfer in immediately available funds by the 25th day of each calendar month (the “Due Date”).|
|6.2.||For the Initial Lease Term or any Extension Term which is less than a full calendar month, the amount of Rent, Utilities Fee, Lessor Maintenance Fee and the corresponding VAT amount payable by Lessee shall be equal to a pro rata portion of the Rent, Utilities Fee, Lessor Maintenance Fee and the corresponding VAT amount, based on a ratio of the number of days during such month that the Initial Lease Term, or applicable Extension Term, as the case may be, is in effect to the total number of days in such month.|
|6.3.||If (a) the Rent, Utilities Fee and/or Lessor Maintenance Fee are not paid on or before the Due Date or (b) any other amounts payable herein including payments due by either Party with respect to Damages (collectively, the “Other Costs”) are not paid when due, after the passage of any applicable grace and/or cure period, Lessee or Lessor, as applicable, shall be liable for and pay interest on the outstanding amounts of the Rent, Utilities Fee, Lessor Maintenance Fee and/or Other Costs at a rate of eight percent (8%) per annum calculated from and including the sixth day after the Due Date until the date the Rent, Utilities Fee, Lessor Maintenance Fee and/or Other Costs are received by the Party to whom they are due.|
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|6.4.||Lessee shall be responsible for payment of any VAT levied on the Rent, Lessor Maintenance Fee, Utility Fee and/or Other Costs due from it to Lessor under this Agreement.|
|6.5.||Lessor shall, at the request of Lessee, provide the Lessee with relevant data and records for the calculation of the Rent, Lessor Maintenance Fee, Other Costs and VAT and determination of Lessor’s compliance with its obligations under this Agreement; provided that Lessee may make no more than one such request per calendar quarter and any such request must be reasonably specific. Lessor shall prepare and maintain proper books and records of all matters pertaining to the calculation of Rent, Lessor Maintenance Fee, Other Costs and VAT under this Agreement. Subject to Article 26 and the first sentence of this Section 6.5, upon seven (7) days prior written notice, Lessee, or its authorized representatives, may examine during normal business hours, the books, records and documents of Lessor to the extent reasonably necessary for verification of any invoice or compliance under this Agreement; provided, however, that if a Lessor is to provide such books and records to Lessee for such Lessee’s examination and photocopying purposes, Lessor may blackout any information contained in such books and records that relates to Lessor other than information regarding the calculation of the Rent, Lessor Maintenance Fee, Other Costs and VAT and that is required for the determination of Lessor’s compliance with its obligations under this Agreement.|
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|6.6.||Notwithstanding anything herein to the contrary, in the event of a bankruptcy filing with respect to Lessee, Lessee shall deposit with Lessor an amount equal to the Rent paid by Lessee during the immediately preceding full calendar month under the terms of this Agreement, against which will be credited Rent payable by Lessee over the thirty day period following such deposit. Lessee shall renew such deposit each thirty days in each case by reference to the Rent paid by Lessee during the full calendar month immediately preceding any such renewal until such bankruptcy protection filing has been accepted by the bankruptcy court. For the avoidance of do|