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Exhibit 10.14
***Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. §§ 200.80(b)(4)
and 230.406
LEASE AGREEMENT entered into as of December 26, 2006 by and
between INDUSTRIAS ASOCIADAS MAQUILADORAS, S. A. de C. V.
(hereinafter referred to as IAMSA), herein represented by
Mr. José Luis Faus Sotelo, and INDUSTRIAL VALLERA DE
MEXICALI, S.A DE C.V , (hereinafter referred to as COMPANY),
herein represented by Mr. Sergio Tagliapietra Nassri, Legal
Representative, pursuant to the following RECITALS and CLAUSES.
R E C I T A L S
I.- IAMSA declares that:
A.- It is a Company organized and existing under Mexican General
Corporation Law, as per Public Instrument No. 13,602, Volume
268, executed before Attorney Macedonio E. Gutiérrez, then
Notary Public No. One of Mexicali, Baja California, dated
August 8, 1955, amended to change its denomination to
INDUSTRIAS ASOCIADAS MAQUILADORAS, S. A. DE. C. V, as per Public
Instrument No. 229,855, Volume 8.945, executed before Attorney
Francisco Lozano Noriega, Notary Public No. Ten of the Federal
District, Mexico, recorded under number 6077, pages 365-375, and
396, on September 30, 1987 of the Public Registry of Property
and Commerce in this City of Mexicali, Baja California, having as
its corporate object the development and operation of an Industrial
Park in the City of Mexicali, Baja California, Mexico, including
that known as Las Californias Industrial Park.
B.- Mr. Jose Luis Faus Sotelo is its Legal Representative,
as it appears in Public Instrument No. 4,673, Volume 93, dated
the 2 of October of 1989, executed before Attorney Victor
Ibañez Bracamontes, Notary Public No. 8 of the City of
Méxicali, Baja California, recorded under number 7,837 the
15 of November of 1989, Commerce Section, at the Public Registry of
Property and Commerce in this City of Mexicali, Baja
California.
C.- IAMSA’S registration number at the Federal Registry of
Tax Payers is IAM-870622-MF4.
D.- The address at which it has its principal place of business
is Km. 10.5 on Highway to San Luis, Rio Colorado, Sonora, Mexicali,
Baja California, Mexico
E.- IAMSA has established the "Palaco Industrial Park",
hereinafter referred to as the Industrial Park, and more
specifically shown described on Exhibit "A", which is attached
hereto and made a part hereof.
F.- The parties desire to enter into a lease regarding lot 5,
block 3 & 6 East, with a total land area of 20,892.22 square
meters square meters and a portion of the building located at
Calzada del Oro #2001, int. 5 Palaco Industrial Park, Mexicali Baja
California Zip Code 21600. The portion of the building which is
subject of this Lease Agreement is constructed as a basic shell
with a warehouse area of approximately 8,825.79 square meters
(95,000.00 square feet) which consists of a portion of the
warehouse of the "Scottsdale" building module 3 with a total area
of 1,920.00 square meters (20,666.70 square feet), as the same is
depicted in Exhibit "B" attached hereto. This area includes offices
(approx. 750 square feet including restrooms, tile floors, low
ceiling, lighting and one 5 ton A/C unit), warehouse area, four
loading docks, and one level access ramp. The property subject
matter of this lease and the improvements, together, shall
hereinafter be referred to as the Leased Property (refer to
Exhibits A & B).
G.- IAMSA has previously applied for and obtained
financial loans through Mexican and Foreign Banking and Lending
Institutions, with which funds, buildings and improvements located
in the Industrial Park, are being constructed.
II.- COMPANY declares that:
A.- It is organized under the Mexican General Corporation Law as
per Public Instrument Number 22,079, Volume 349, executed on
June 30,1982, before Attorney Fernando Diaz Ceballos, Notary
Public Number Four of the City of Mexicali, Baja California,
properly registered in the Public Registry of Property and Commerce
of this City of Mexicali, under number 2,039, on
August 30,1982. Such document was amended by means of Public
Instrument Number 26,551, volume 511, dates January 8, 1987,
before Attorney Eduardo Illades Villafaña, Notary Public
Number Six of the City of Tijuana, Baja California, duly registered
in the Public registry of Property and Commerce of this City of
Mexicali, Baja California, under number 5,339, pages 457, of volume
XIII, First Book, Commerce section, that contains the change of
denomination to INDUSTRIAL VALLERA DE MEXICALI, S.A. DE C.V.
B.- Mr. Sergio Tagliapietra Nassri verifies his capacity as
attorney-in-fact of COMPANY as per Public Instrument Number 28,902,
Volume 552, executed on November 27,1987, before Attorney J.
Eduardo Illades Moreno, Notary Public Number 6 of the City of
Tijuana, Baja California, properly in the Public Registry of
Property and Commerce.
C.- Company’s registration number at the Federal Registry
of Taxpayers is IVM-861027-KH1.
D.- The address at which his principal has its principal place
of business is precisely the Leased Property subject matter of this
Agreement.
C L A U S E S:
I.- SCOPE OF LEASE AGREEMENT.
On the express terms and conditions set forth hereinafter, the
scope of this Lease Agreement is as follows: IAMSA hereby leases to
COMPANY, and COMPANY hereby leases from IAMSA, the building in the
Industrial Park as precisely described in Exhibit "B" ,
referred to above, which is attached hereto and made a part hereof,
and the improvements as more specifically described in "Exhibit
C " (collectively, the "Improvements"). It is expressly
understood that COMPANY enters this agreement with IAMSA, with the
intention of performing industrial and warehouse activities
involving disposable medical products and other uses ancillary
thereto.
II.- CONSTRUCTION BY IAMSA.
A.- All improvements to the Leased Property (including the
Improvements) have been constructed in accordance with
specifications approved by IAMSA and COMPANY.
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B.- IAMSA shall perform all future improvements
in accordance with all laws, ordinances, regulations, and orders of
governmental authorities, and the Industrial Park Regulations which
are attached hereto as Exhibit "D" .
C.- (deleted).
D.- COMPANY shall have the right to require changes in the
Specifications during the course of construction provided that such
changes do not unreasonably delay completion of the Improvements
and provided that COMPANY reimburses IAMSA upon demand for any
additional costs incurred by IAMSA by reason of changes required by
COMPANY. COMPANY hereby waives the right to object to any delay in
completion caused by said changes in Specifications.
E.- The Leased Property shall be considered ready for occupancy
when IAMSA has completed all of the Improvements in accordance with
the Specifications and COMPANY is able to use the Leased Property
for those purposes permitted under this Lease Agreement. The
parties presently anticipate that the Leased Property will be ready
for such occupancy by COMPANY on or before December 26, 2006
(" Target Occupancy Date "). IAMSA will use commercially
reasonable, diligent efforts to cause the Improvements and the
Leased Property to be ready for COMPANY’s beneficial use and
occupancy on the Target Occupancy Date.
IAMSA shall diligently complete or repair, as soon as possible,
any items or corrections not completed when the Leased Property is
ready for occupancy.
F.- Upon prior written consent of IAMSA, COMPANY may, at any
time prior to the commencement of the term hereof, at its sole
risk, enter upon and install such trade fixtures and equipment in
the Leased Property as it may elect.
G.- IAMSA hereby acknowledges that any and all construction
improvements to be completed by IAMSA hereunder either during the
pre-lease term or afterwards, either with IAMSA’s employees
or by third parties contracted by IAMSA, will be the sole
responsibility of IAMSA, and therefore guarantees and warrants to
COMPANY that such employees and third parties will be in full
compliance with all pertinent construction and social security,
tax, labor and other applicable Mexican laws and regulations.
III.- INSTALLATIONS BY COMPANY.
A.- COMPANY may, at its expense, install on the Leased Property,
such trade fixtures, equipment and furniture as it may deem
necessary; provided that such items are installed and are removable
without material damage to the structural integrity of the Building
and Improvements. Said trade fixtures, equipment and furniture
shall remain COMPANY’s property and, unless COMPANY is in
default hereunder (after the giving of notice by IAMSA and the
expiration of the applicable cure period), shall be removed by
COMPANY upon expiration of the term hereof, or earlier termination
of this Lease as specified hereunder. COMPANY also may install
temporary improvements in the interior of the Building, provided
that such improvements are installed and are removed without
material damage to the structure of the Improvements. Such
improvements shall remain the property of COMPANY and, unless
COMPANY is in default hereunder (after the giving of notice by
IAMSA and the expiration of the applicable cure period), shall be
removed by
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COMPANY upon expiration of the term hereof or
earlier termination of this Lease as specified hereunder. COMPANY
shall repair, at its sole expense, all damage caused by such
installation or removal of trade fixtures, equipment, furniture or
temporary improvements.
B.- COMPANY shall perform all installations in accordance with
all laws, ordinances, regulations, orders of government
authorities, and the Industrial Park’s Regulations which was
attached hereto as Exhibit "D" .
IV.- LEASE TERM, AND COMMENCEMENT DATE.
A.- Lease Agreement. This Lease Agreement shall be effective
upon its execution and delivery by IAMSA and COMPANY.
B.- Term. The term of this Lease shall commence on the later of
(i) December 26, 2006 or (ii) the date on which
IAMSA delivers possession of the Leased Property to COMPANY with
all Improvements completed in accordance with the Specifications.
Such date shall be referred to herein as the " Commencement
Date ." The term of this Lease shall terminate upon the
conclusion of the fifth (5th) Lease Year (defined below).
C.- Lease Year. The term "Lease Year" as used herein, shall mean
a period of twelve (12) consecutive full calendar months. The
first Lease Year shall begin on the Commencement Date if the
Commencement Date occurs on the first day of a calendar month; if
not, then the first Lease Year shall commence upon the first day of
the calendar month next following the date of commencement of the
term hereof. The rent for any partial month shall be prorated.
D.- Renewal of Lease Agreement. It is understood and agreed upon
that COMPANY shall have the right to extend the term of the Lease
Agreement after the termination of the original lease term, for one
(1) additional term of five (5) years. It is understood
that COMPANY shall notify IAMSA in writing, at least 180 days prior
to the termination of the initial lease term or its extensions,
regarding its intention to exercise this option. If no written
notice is received prior to such period, it is understood that the
COMPANY has no intention to renew the lease and consequently shall
immediately proceed to vacate the premises as stated hereunder at
the expiration of the lease term. It is also agreed that the
payment of rent during the first year of the extension period, will
be the same as was in force during the last year of the original
lease term, reflecting only the annual increases as established in
Clause V, paragraph A of this Lease Agreement.
E.- Early Termination of Lease Agreement. In the event that
IAMSA and COMPANY enter into a new lease for additional premises in
any IAMSA development (the " Additional Premises "), COMPANY
shall have the right to terminate this Lease Agreement upon the
delivery of written notice to IAMSA. COMPANY’s termination
right under this paragraph may be exercised at any time after
COMPANY’s commencement of beneficial occupancy of the
Additional Premises and shall be effective upon delivery to IAMSA,
at which time this Lease Agreement shall terminate.
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V.- RENT.
A.- Lease. As rent for the lease of the Land and Improvements
during the lease term hereof, COMPANY shall pay to IAMSA base rent
in the amount of […***…] in the lawful currency of
the United States of America) per month, plus value added tax,
(corresponding to […***…] per square feet of
constructed area per month payable in advance to IAMSA at the
address of IAMSA, on the first day of each month concurrently with
the payment of such base rent). Upon the commencement of the second
(and each successive) Lease Year, such base rent shall be increased
by two percent (2%).
B.- Maintenance Fee. The COMPANY shall pay a monthly maintenance
fee for the building, at the rate of […***…] per sq.
ft. plus value added tax, payable jointly with the monthly rent.
Upon the commencement of the second (and each successive) Lease
Year, such monthly maintenance fee shall be increased by two
percent (2%).
If such rent and maintenance fee is not paid within five
(5) days after the first day of any given month, it shall
become delinquent and a five percent (5%) late payment fee
will be applied per month.
IAMSA and COMPANY hereby agree that maintenance of specific
equipment such as A/C units, compressors, electrical transformers,
will be Company’s sole responsibility. For such purpose,
COMPANY will enter into a periodic maintenance contract with a
third party covering said specific equipment that is the property
of IAMSA, and COMPANY shall assume all liabilities concerning its
own equipment. COMPANY shall provide a copy of such maintenance
contract to IAMSA within twenty (20) days after the
Commencement Date. Further, COMPANY shall obtain a insurance on
such equipment and improvements property of IAMSA, in accordance
with the Clause VII, Paragraph A of this Lease Agreement.
C.- Notwithstanding the above statements, COMPANY will pay the
rent provided for in the above, at the address of IAMSA as set
forth in this Agreement, or at the address of the banking financial
institution or to any assignee of IAMSA as IAMSA may direct, under
the terms of Clause XIII of this Lease Agreement.
D.- Prorate.- The rent for any partial month shall be
prorated.
E.- Liquidated Damages. Upon any termination by IAMSA of this
Lease Agreement due to a default of COMPANY, prior to or during the
first six (6) months of the Lease Term, or termination of this
Lease Agreement by COMPANY without cause, entitles IAMSA to apply
as liquidated damages all sums paid or deposited by COMPANY, as
prepaid rent or as a security deposit, in addition to any other
rights of IAMSA provided for herein.
F.- Setoff. The payment of any rent due under this Lease, shall
not be withheld or reduced for any reason whatsoever, and COMPANY
agrees to assert any claim, demand, or other right against IAMSA
only by way of an independent proceeding.
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VI.- USE.
The Leased Property shall be used and occupied for any lawful
industrial purpose not in violation of the Industrial Park
Regulations that was attached hereto as Exhibit "D" ,
COMPANY shall promptly and adequately comply with all laws,
ordinances and orders of all governmental authorities affecting the
Leased Property, particularly with all regulations related to
environmental controls. COMPANY shall not perform or omit any acts
that may damage the Leased Property, or be a menace to other
occupants of the Industrial Park.
VII.- INSURANCE.
A.- Fire and Other Insurance. IAMSA will obtain and invoice
COMPANY for the necessary insurance covering the building, building
improvement property of IAMSA, and third party damages, in an
amount sufficient to provide for their replacement, naming IAMSA as
beneficiary. IAMSA will deliver to COMPANY a copy of the insurance
policies together with the receipt of payment of the premiums or
the invoice issued to COMPANY for reimbursement to IAMSA of such
expenses. COMPANY accepts and promises to pay such expenses
immediately upon demand by IAMSA.
B.- Form and Delivery of Policies. Each insurance policy
referred to in the preceding paragraphs shall be in form approved
by the Department of Finance and Public Credit and written with one
or more companies licensed to do insurance in Mexicali, Baja
California, Mexico, and it shall provide that it shall not be
subject to cancellation or exchange, except after at least 30 days
prior written to IAMSA.
C.- Guaranty. It is clearly understood that IAMSA has been
induced to enter into this Lease with COMPANY due to the guaranties
to be submitted by COMPANY. Consequently, COMPANY shall assure that
a Guarantee under the form of Exhibit "E" attached hereto,
is given by MASIMO Corporation, a Delaware corporation
("GUARANTOR"), to insure the adherence by COMPANY of all of the
conditions, covenants, obligations, including those concerning the
application of mechanisms of restoration in the event of an
environmental damage and contamination of the Leased Property,
liabilities and agreements set forth in this Lease Agreement.
VIII.- TAXES AND ASSESSMENTS.
With the exception of the income tax and fixed asset tax on
IAMSA, which shall be borne by IAMSA, COMPANY shall pay all taxes
and assessments of every kind, including property tax, which are or
may be at any time during the leased term levied against the Leased
Property, the Lease Agreement or COMPANY. All such taxes and
assessments shall be paid by COMPANY, and receipt showing their
payment shall be delivered to IAMSA by COMPANY before such taxes
and assessments become delinquent.
IX.- REPAIRS, ALTERATIONS AND IMPROVEMENTS.
A.- IAMSA
1.- After receipt of written notice from COMPANY, IAMSA at its
expense shall with minimum interference to COMPANY’s normal
use of the Leased Property, diligently proceed to repair any
structural defects in the roof or exterior bearing walls of the
building of IAMSA, excepting normal use, wear and damage. IAMSA
shall not be liable for any
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damages, and shall not be obligated to make any
repairs, caused by any negligent act or omissions of COMPANY, its
employees, agents, invitees, or contractors. IAMSA shall have no
other obligation to maintain or repair any other portion of the
Leased Property, except for the repair of any Improvements
constructed by IAMSA for COMPANY for a period of one year after
their completion. IAMSA shall not be liable to COMPANY for any
damage resulting from IAMSA’s failure to make repairs, unless
COMPANY has notified IAMSA of the need for such repairs, and IAMSA
has failed to commence such repairs within seven (7) calendar
days after said notice has been given, or has failed to complete
the same in a diligent manner in the case of emergency. Any leaks
in the roof will be repaired by IAMSA unless the same are caused by
any actions of COMPANY in connection with installations made by
COMPANY in the facility. However, it is understood that any damages
caused by any such leaks either to the materials or equipment or
any property of COMPANY shall not be the responsibility of IAMSA,
and COMPANY shall bear the risk of such loss to
property.
2.- If IAMSA fails to make the repairs described in Clause IX,
"A", COMPANY may, but shall not be required to, make or cause such
repairs, to be made without the prior authorization for the cost of
repairs by IAMSA and IAMSA shall, on demand, immediately pay to
COMPANY the actual cost of the repairs.
B.- COMPANY
1.- COMPANY, at its expense, shall keep and maintain in good
order and repair, except for normal use and wear, all of the Leased
Property, including but not limited to improvements (but excluding
those obligations of IAMSA stated in paragraph "A", 1, of this
clause above), plumbing, sewage and other utility facilities that
are within the Leased Property, as well as fixtures, partitions,
walls (interior and exterior, including painting as often as
necessary), floors, ceilings, signs, doors, windows, plate glass
and all other repairs to the Leased Property. COMPANY at its
expense shall repair all leaks except those caused by construction
and structural defects and the negligence of IAMSA and its agents,
employees, contractors and representatives (which shall be repaired
by IAMSA at its sole cost and expense). The plumbing facilities
shall not be used for any other purpose than that for which they
were constructed. The expense of any breakage, stoppage or damage
resulting from a violation of this provision, shall be borne by
COMPANY. COMPANY shall store all trash only temporarily within
Leased Property (see Park Rules and Regulations, Exhibit "D"
), and shall arrange for the regular pick-up of trash at
COMPANY’s expense. COMPANY shall not burn any trash of any
kind in or about the Leased Property or the Industrial Park.
COMPANY must maintain all parts of the Leased Property and those
areas adjoining the Leased Property in a neat, clean and orderly
condition, free of garbage, debris and illegal obstruction.
2.- COMPANY shall obtain IAMSA’s written consent before
making any alterations, improvements or additions to the exterior
walls and roof of the Leased Property with a cost exceeding US
$5,000.00 (FIVE THOUSAND DOLLARS 00/100 CURRENCY OF THE UNITED
STATES OD AMERICA) per alteration, improvement or addition. COMPANY
shall not materially damage any floors, walls, ceilings,
partitions, or any wood, stone, or ironwork on or about the Leased
Property in connection with the construction of any such
alterations or improvements.
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3.- COMPANY shall keep the Leased Property free
and clear of all encumbrances and liens arising out of acts or
omissions of COMPANY, including those arising out of acts or
construction done or ordered by COMPANY. However, if by reason of
any work performed, materials furnished or obligations incurred by
COMPANY with any third party, or any other act or omission by
COMPANY, IAMSA is made liable or involved in litigation, COMPANY
shall hold harmless and indemnify IAMSA, including any costs and
expenses, and attorney’s fee incurred as a result of such
third party suit. Should COMPANY fail to fully discharge any such
encumbrances or liens within thirty (30) days after the date
the same appears of record or fail to provide a bond acceptable to
IAMSA in case of litigation, IAMSA, at its option, may pay all or
any part thereof. If IAMSA pays any such lien or encumbrances or
any part thereof, COMPANY shall, on demand, immediately pay IAMSA
the amount so paid, together with interest at the rate of thirty
percent (30%) per annum from the date of payment. No lien or
encumbrance of any character whatsoever created by an act or
omission by COMPANY shall in any way affect the rights of IAMSA
regarding clear title to the Leased Property. Although, if COMPANY
by any reason of any work performed, materials furnished or
obligations incurred by IAMSA with any third party, or any other
act or omission by IAMSA, COMPANY is made liable or involved in any
litigation, IAMSA shall defend, hold harmless and indemnify COMPANY
from and against any and all actions, costs and expenses (including
attorneys’ fees and litigation costs), liabilities and
proceedings in connection with such work performed, materials
furnished or obligations incurred by IAMSA. Should IAMSA fail fully
to discharge any such encumbrances or liens within thirty
(30) days after the date the same appears or record or fail to
provide a bond acceptable to COMPANY in case of litigation, COMPANY
its option, may pay all or any part thereof. If COMPANY pays any
such lien or encumbrances or any part thereof, IAMSA shall, on
demand, immediately pay COMPANY the amount so paid together with
inters at the rate of thirty percent (30%) per annum from the
date of payment.
4.- As stated in the Lease Agreement, COMPANY, at its expense,
shall have active all the time a maintenance policy covering
IAMSA’s equipment in the Facilities. IAMSA guarantees that
all plumbing, sewage and other utility facilities that are within
the Leased property and all the items referred on the above
paragraph are duly working upon the Commencement Date.
X.- UTILITY SERVICES.
During the term of this Lease Agreement, COMPANY shall promptly
pay for any and all public and other utilities and related services
furnished to the Leased Property, including but not limited to,
water, gas, electricity, telephone and trash pick up charges, and
hook up services. IAMSA will assist COMPANY in obtaining all such
utility services if such becomes necessary. All contracts necessary
for the installation of any services to the Leased Property, water,
drainage and telephone hook-up fees if any, as well as any KVA
installation charge by the Mexican Federal Electric Commission and
its electricity hook-up fees usage charge will be covered by in
full by COMPANY.
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XI.- RIGHT-OF-WAY; TRANSFORMER.
IAMSA is hereby granted a right-of-way upon, across, and under
the Leased Property to enter, exit, make installations,
replacements, repair and maintain all utilities, including but not
limited to water, gas, telephone, all electricity and any
television or radio antenna system serving the Leased Property. By
virtue of this right-of-way it shall be expressly permissible for
the electrical and/or telephone companies to erect and maintain the
necessary poles and other necessary equipment on the Leased
Property; provided, that in exercising any right COMPANY may have
under this Clause, IAMSA agrees to cause only minimal interference
with COMPANY’s use and possession COMPANY of the Leased
Property.
Notwithstanding the foregoing, IAMSA shall procure at its cost a
225 KVA transformer for use at the Leased Property for the benefit
of the premises leased by COMPANY hereunder. The installation and
connection of the transformer shall be performed by COMPANY at its
sole cost and expense and shall comply with the Specifications and
all applicable legal requirements.
XII.- ASSIGNMENT AND SUBLETTING.
A.- COMPANY shall have the right, upon prior written consent
from IAMSA, which consent shall not be unreasonably withheld,
conditioned or delayed, to assign or transfer this Lease Agreement
or any interest therein or to permit the use of the Leased
Property, provided, however, that COMPANY is not in default (after
the giving of notice and the expiration of the cure period
hereunder) in the payment of rents or other obligations under this
Lease Agreement. Notwithstanding the foregoing, COMPANY shall not
be required to obtain the prior written consent of IAMSA in the
event that this Lease Agreement is assigned, subleased or
transferred to, or the Leased Property is occupied by, a person or
entity controlled by, controlling or under common control with
Masimo Corporation, a Delaware corporation. In the event of any
assignment, transfer or sublease, COMPANY shall remain liable for
all its obligations under this Lease Agreement. The assignment,
transfer or sublease of this Lease Agreement by COMPANY will
produce no extra charge to COMPANY, and shall be done under the
same covenants herein agreed.
B.- IAMSA shall have the right to assign and reassign, from time
to time, any or all of the rights and obligations of IAMSA in this
Lease Agreement or any interest therein, subject to COMPANY’s
consent, provided that no such assignment or reassignment shall
impair any of the rights of COMPANY herein, and provided further,
that IAMSA shall remain liable for all of its obligations under
this Lease Agreement. In the event of such assignment or
reassignment, COMPANY shall not diminish or withhold any of the
rents payable hereunder by asserting against such assignee any
defense, setoff, or counterclaims which COMPANY may have against
IAMSA or any other person. However, COMPANY hereby specifically
waives, with respect to withholding of rent, any preventive
measures to guarantee payment of a claim, as provided by the Code
of Civil Procedures.
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XIII.- SUBORDINATION.
During the term of this Lease Agreement, IAMSA shall have the
right to encumber its interest in the Leased Property or in this
Lease Agreement for any purpose it deems convenient and COMPANY
shall and hereby does subordinate its interest in this Lease
Agreement and in the Leased Property to such encumbrances. However,
in the event such encumbrances are foreclosed upon or judicially
enforced, the one who holds the encumbrance shall agree to respect
this Lease Agreement and accept the performance by COMPANY of its
obligations hereunder. COMPANY shall execute any agreement in
commercially reasonable form which may be required by IAMSA in
confirmation with such subordination and submit whatever public
finance data may be reasonably requested of COMPANY by any trust
insurance company, bank or other recognized lending institution
providing financing to IAMSA that is secured by IAMSA’s
interest in the Leased Property or this Lease Agreement.
Once IAMSA shall have notified COMPANY in writing that the
former has assigned its interest in this Lease Agreement to any
lending institution as security for a debt or other obligation of
IAMSA, IAMSA shall not have the power to amend this Lease
Agreements so as to reduce the rent, decrease the term or modify or
negate any substantial obligation without the written consent of
such lending institution. Such obligation shall continue until the
lending institution has notified COMPANY in writing that such
assignment has been terminated, in the understanding that if IAMSA
fails to obtain such lending institution’s approval to carry
out the foregoing, the amendment of the terms above mentioned shall
have no effect whatsoever as against such lending institution. In
addition, if the lending institution shall notify COMPANY in
writing requiring the payment of rents hereunder directly to such
lending institution or its representative, then COMPANY shall be
obligated to pay such lending institution or its representative
each subsequent rental that may become due under this Lease
Agreement (together with any unpaid rent then past due), until the
date on which such lending institution notifies COMPANY authorizing
payment of rent to IAMSA or other party entitled thereto. COMPANY
understands and agrees that except for the advanced rental payments
provided for in this Lease Agreement, at the request of IAMSA,
COMPANY shall provide a statement within twenty (20) days
after IAMSA’s request therefor that no such advanced payment
has been made; such document shall be binding upon COMPANY as
against the lending institution to which this Lease Agreement may
be assigned. In addition, the lending institution shall not be
bound to recognize those payments made to IAMSA after the COMPANY
has received notice requiring payments to be made to such lending
institutions, and IAMSA hereby (i) authorizes COMPANY to
conclusively rely on any statement from such lending institution or
other lender regarding where additional payments under this Lease
Agreement must be delivered and (ii) releases
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