EXHIBIT 10.3
THIRD AMENDMENT TO
XxXXXXXXX PARK STANDARD FORM
GROSS LEASE AGREEMENT
This Third Amendment to XxXxxxxxx Park Standard Form Gross Lease Agreement
("THIRD AMENDMENT"), dated for reference purposes as June 20,2005, is entered
into between MP HOLDINGS, LLC, a California limited liability company
("LANDLORD") and JSI MICROELECTRONICS, INC., a California corporation
("TENANT"). In the event of any inconsistencies between the terms of this Third
Amendment and the terms of the Lease (as defined below), the terms and
conditions of this Third Amendment shall govern and control.
RECITALS
A. Landlord and Tenant have entered into that certain XxXxxxxxx Park
Standard Form Gross Lease Agreement, dated April 12, 2000, as amended by that
certain First Amendment, dated April 29,2002, as further amended by that certain
Second Amendment, dated July 14, 2004 (collectively, "LEASE"), for the lease of
that certain real property ("PREMISES") at XxXxxxxxx Park, which Property is
more particularly described in the Lease.
B. Landlord and Tenant now desire to amend the Lease in accordance with
the terms and conditions of this Third Amendment.
NOW, THEREFORE, in consideration of the foregoing Recitals, and the mutual
covenants contained herein, the parties agree as follows:
AGREEMENT
1. Definitions. Unless otherwise defined herein, all capitalized terms
used in this Third Amendment shall have the same meaning as defined in the
Lease.
2. Effective Date. This Third Amendment shall be effective as of the date
upon which the last party hereto executes this Third Amendment.
3. Amended Term Expiration Date. The Extended Term Expiration Date, as
defined in the Second Amendment, is extended from "May 31, 2006" to "May
31,2008" ("AMENDED TERM").
4. Definition of Premises. As of the "New Premises Commencement Date," the
definition of Premises shall be defined as: (i) approximately seventy-two
hundred (7,200) rentable square feet within Building 618 ("NEW PREMISES"), and
(ii) approximately five hundred two (502) rentable square feet within Building
618 (such space is currently occupied by Tenant and is defined in the First
Amendment to the Lease as "Expansion Space" (collectively, "REVISED PREMISES"),
The Revised "Premises" are more particularly defined on Exhibit A attached
hereto and incorporated herein. As of the New Premises Commencement Date, Tenant
shall relinquish possession of approximately two thousand five hundred
sixty-seven (2,567)
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rentable square feet within Building 618 ("RELINQUISHED SPACE"), which is more
particularly described on Exhibits attached hereto and incorporated herein.
5. Term of Revised Premises. Landlord shall improve the New Premises in
accordance with the "'Work Letter Agreement" attached hereto and incorporated
herein as Exhibit C, subject to delays caused by Force Majeure Events (as
further defined in the Lease), however; the New Premises Commencement Date shall
be extended accordingly. The date which Landlord Substantially Completes the New
Premises (which is anticipated to be October 31, 2005), subject to Punchlist
Matters, is referred to as the ("NEW PREMISES COMMENCEMENT DATE"). The parties
agree that if Landlord shall be unable to Substantially Complete the Premises by
October 31, 2005, this Lease shall not be void or voidable, nor shall Landlord
be liable to Tenant for any loss or damage resulting therefrom.
6. Permitted Use of Revised Premises. Tenant's use of the New Premises
shall be limited to the Permitted Use set forth in the Lease, as amended.
7. Amended Base Rent. Subject to the provisions of the Lease, as amended,
Base Rent under Section 4 of the Second Amendment shall be deleted in its
entirety and replaced with the following language:
(a) New Premises Base Rent. Effective on the New Premises
Commencement Date, Base Rent for the New Premises shall be the sum of Nine
Thousand Three Hundred Sixty and No/lOOths Dollars ($9,360,00) per month for
months one (1) through twelve (12) Following the New Premises Commencement Date.
(b) Expansion Space Base Rent. Effective June 1,2004, Base Rent for
the Expansion Space shall be the sum of Six Hundred Eighteen and No/l00ths
Dollars ($618.00) per month for months one (1) through twelve (12) following
June 1,2004.
(c) Total Base Rent. Total Base Rent shall be comprised of (i) the
New Premises Base Rent and (ii) the Expansion Space Base Rent which equals the
sum of Nine Thousand Nine Hundred Seventy-Eight and No/l00ths Dollars
($9,978,00) ("TOTAL BASE RENT FOR THE EXTENDED TERM").
(d) Commencing on the first (1st) day of the thirteenth (13th) month
following (i) the New Premises Commencement Date and (ii) June 1, 2004,
respectively, and on each respective annual anniversary thereafter, the Total
Base Rent for the Extended Term shall be increased by the amount of Three
Percent (3%) of the Base Rent then in effect.
8. Right of First Refusal to Lease. Any time during the Term, Landlord
shall notify Tenant in writing ("INTERESTED PARTY NOTICE") of any third party
("INTERESTED PARTY") who expresses a bona fide offer in the leasing of the
remaining two thousand five hundred twenty (2,520) rentable square feet of
office space within the Additional Expansion Premises of Building 618 ("FIRST
REFUSAL SPACE"), which is more particularly described as Exhibit D attached
hereto, as evidenced by a proposed letter of intent, or similar document,
submitted to Landlord by the Interested Party, which Landlord is willing to
accept. For a period of five (5) business days following Tenant's receipt of the
Interested Party Notice, Tenant shall have the right ("FIRST RIGHT OF REFUSAL TO
LEASE") to lease the First Refusal Space identified in the
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Interested Party Notice by providing Landlord with written notice of such
election ("ELECTION NOTICE"). The failure of Tenant to deliver the Election
Notice to Landlord within such time period shall be deemed Tenant's waiver of
the First Right of Refusal to Lease and Landlord shall be free to lease the
First Refusal Space identified in the Interested Party Notice; provided,
however, if Landlord has not entered into a lease transaction with the
Interested Party which is materially consistent with the provisions of the
Interested Party Notice (a lease rate adjustment of less than 10.00% shall not
be deemed material) within two hundred forty (240) days following Tenant's
receipt of the Interested Party Notice, the provisions of this Section 7 shall
apply to any subsequent bona fide offer for lease of the First Refusal Space
which Landlord is willing to accept. In the event that Tenant delivers the
Election Notice to Landlord, Tenant and Landlord shall enter into a new lease
agreement prepared by Landlord, upon the exact terms and conditions set forth in
the Interested Party Notice within thirty (30) days following Landlord's receipt
of the Election Notice. Notwithstanding the foregoing, in the event that Tenant
is in default at the time of the delivery of the Election Notice to Landlord,
the Election Notice shall be deemed null and void at Landlord's election. Upon
the sale of the Premises by Landlord to an unaffiliated third party, the
provisions of this Section 7 shall become null and void.
9. Parking. Subject to the provisions in the Lease, Tenant, upon the New
Premises Commencement Date, shall have the non-exclusive right to use an
additional twenty-eight (28) parking spaces, as more particularly set forth in
Exhibit E attached hereto and incorporated herein.
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10. Additional Rent. Landlord and Tenant acknowledge and agree that the
provisions set forth in this Section 10 are added to the Lease as of the
Effective Date.
(a) Definitions.
(i) "BASE YEAR" shall mean calendar year 2005.
(ii) "ADDITIONAL RENT" shall mean Tenant's Share of the
Project Expenses
(iii) "COMMON EXPENSES" shall mean the aggregate amount of the
total costs and expenses paid or incurred by Landlord in any way connected with
or related to the operation, repair, replacement, refurbishment, providing
utilities, and maintenance of the Common Areas, the Buildings and the Property.
Such costs include managerial fees (not to exceed five percent (5.00)% of the
gross rental income from the Property) and administrative expenses related to
the Property (not exceed ten percent (10.00%) of the Common Expenses). The
computation of Common Expenses shall be made in accordance with generally
accepted accounting principles. The Project Expenses that vary with occupancy
and that are attributable to any Computation Year in which less than ninety-five
percent (95%) of the rentable area of the Building is occupied by tenants will
be adjusted by Landlord to the amount that Landlord reasonably believes they
would have been if ninety-five percent (95%) of the rentable area of the
Building had been occupied. Landlord, from time to time, shall have the right,
for the purpose of calculating Common Expenses to increase/decrease the "COMMON
AREAS" and "PROPERTY" to include/exclude certain designated areas within
XxXxxxxxx.
(iv) "COMPUTATION YEAR" shall mean each twelve (12)
consecutive month period commencing January 1 of each year during the Term,
provided that Landlord, upon notice to Tenant, may change the Computation Year
from time to time to any other twelve (12) consecutive month period and, in the
event of any such change, Tenant's Share of Project Expenses shall be equitably
adjusted for the Computation Years involved in any such change.
(v) "INSURANCE EXPENSES" shall mean the aggregate amount of
the cost of fire, extended coverage, boiler, sprinkler, public liability,
property damage, rent, earthquake and other insurance obtained by Landlord in
connection with the Property, including insurance required pursuant to the
provisions in the Lease, including, but not limited to Section 14, and the
deductible portion of any insured loss otherwise covered by such insurance.
(vi) "PROJECT EXPENSES" shall mean and include Taxes,
Insurance, Expenses and Common Expenses.
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(vii) "RENT" OR "RENT" shall mean the total of all sums due to
Landlord from Tenant hereunder, including but not limited to Base Rent,
Additional Rent, Utilities, and all other fees and charges owed to Landlord as
well as all damages, costs, expenses, and sums that Landlord may suffer or
incur, or that may become due, by reason of any default of Tenant or failure by
Tenant to comply with the terms and conditions of this Lease, and, in the event
of nonpayment, Landlord shall have all the rights and remedies as herein
provided for failure to pay rent. Expenses shall be adjusted to reflect a
ninety-five percent (95.00%) occupancy of the Property during any period in
which the Property is not at least ninety-five percent (95.00%) occupied.
(VIII) "RENTABLE AREA OF THE BUILDING" shall mean 72,000
agreed rentable square feet, which measurement is binding and conclusive upon
the parties. Landlord, from time to time, shall have the right to (i)
increase/decrease the number of Buildings within MeClellan utilized in arriving
at the square footage calculation set forth in this Section, or (ii) segregate
XxXxxxxxx into separate districts based upon building type (the square footage
of each district would thereafter be the denominator for determining Tenant's
Share), following which Tenant's Share shall be recalculated.
(ix) "RENTABLE AREA OF THE PREMISES" shall mean 7,702 agreed
rentable square feet.
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(x) "TAXES" shall mean all taxes, assessments and charges
levied upon or with respect to the Property or any personal property of Landlord
used in the operation thereof, or Landlord's interest in the Property or such
personal property. Taxes shall include, without limitation, all general real
property taxes and general and special assessments, occupancy taxes, commercial
rental taxes, charges, fees or assessments for transit, housing, police, fire or
other governmental services or purported benefits to the Property, service
payments in lieu of taxes, and any tax, fee or excise on the act of entering
into any lease for space in the Property, or on the use or occupancy of the
Property or any part thereof, or on the rent payable under any lease or in
connection with the business of renting space in the Property that are now or
hereafter levied or assessed against Landlord by the United States of America,
the state in which the Property is located, or any political subdivision, public
corporation, district or other political or public entity, whether due to
increased rate and/or valuation, additional improvements, change of ownerships,
or any other events or circumstances, and shall also include any other tax, fee
or other excise, however described, that may be levied or assessed as a
substitute for or as an addition to, as a whole or in part, any other Taxes
whether or not now customary or in the contemplation of the parties on the date
of this Lease. Any assessments imposed under any covenants, conditions and/or
restrictions encumbering, presently or in the future, the Property shall be
within such definition of Taxes. Taxes shall not include franchise, transfer,
inheritance or capital stock taxes or income taxes measured by the net income of
Landlord from all sources unless, due to a change in the method of taxation, any
of such taxes is levied or assessed against Landlord as a substitute for or as
an addition to, as a whole or in part, any other tax that would otherwise
constitute a Tax. Taxes shall also include reasonable legal fees, costs and
disbursements incurred in connection with proceedings to contest, determine or
reduce Taxes. If any Taxes are specially assessed by reason of the occupancy or
activities of one or more tenants and not the occupancy or activities of the
Tenants as a whole, such Taxes shall be allocated by Landlord to the tenant or
tenants whose occupancy or activities brought about such assessment. Tenant
shall participate in any infrastructure financing plan for McClellan that may be
adopted by the Board of Supervisors of Sacramento County, including, but not
limited to, Sacramento County Ordinance No. SZC 97-0027, for the purposes of
constructing, upgrading, operating or maintaining public infrastructure, which
may include, but not be limited to, roadways, water supply, sanitary sewers,
drainage, fire protection, landscape and lighting, and transit facilities. At
the time such financing plan is adopted and enacted by the Board of Supervisors
of Sacramento County, all payment obligations resulting therefrom shall be
within the definition of Taxes.
(xi) "TENANT'S SHARE" is determined by dividing the Rentable
Area of the Premises by the Rentable Area of the Buildings. Tenant acknowledges
that certain Project Expenses apply to the entirety of MeClellan (e.g. common
area landscaping costs, utilities for Common Areas, security, etc.). In this
regard, such XxXxxxxxx-wide Project Expenses shall be allocated to the Premises
on the basis of the rentable square footage of the Premises divided by the
rentable square footage of leaseable space-within MeClellan (unless any
tenant(s) use of its premises requires an increased allocation, and/or a
separate allocation due to location and nexus to an expense and/or service
incurred, as reasonably determined by Landlord) (Landlord shall not recover more
than one hundred percent (100.00%) of such costs incurred by Landlord). In the
event that either the Rentable Area of the Premises or the Rentable Area of the
Building are changed, Tenant's Share will be appropriately adjusted by Landlord.
For purposes of the Computation Year in which such change occurs, Tenant's Share
shall be determined on the basis of the number of days during such Computation
Year at each such percentage.
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(b) Recovery of Expense. Tenant's Share of Project Expenses shall be
payable by Tenant to Landlord as follows:
(i) Beginning with the Computation Year following the Base
Year and for each Computation Year thereafter, Tenant shall pay Landlord an
amount equal to Tenant's Share of the Project Expenses incurred by Landlord in
the Computation Year which exceeds the total amount of Project Expenses payable
by Landlord for the Base Year. This excess is referred to as the "EXCESS
EXPENSES."
(ii) To provide for current payments of Excess Expenses,
Tenant shall, at Landlord's request, pay as additional rent during each
Computation Year, an amount equal to Tenant's Share of the Excess Expenses
payable during such Computation Year, as estimated by Landlord from time to
time. Such payments shall be made in monthly installments, commencing on the
first day of the month following the month in which Landlord notifies Tenant of
the amount it is to pay hereunder and continuing until the first day of the
month following the month in which Landlord gives Tenant a new notice of
estimated Excess Expenses. It is the intention, hereunder to estimate from time
to time the amount of the Excess Expenses for each Computation Year, including
the Computation Year immediately following the Base Year, and Tenant's Share
thereof, and then to make an adjustment in the following year based on the
actual Excess Expenses incurred for that Computation Year.
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(iii) On or before April 1 of each Computation Year after the
Base Year (or as soon thereafter as is practical), Landlord shall deliver to
Tenant a statement ("EXPENSE STATEMENT") setting forth Tenant's Share of the
Excess Expenses for the preceding Computation Year; provided, however, that the
failure of Landlord to supply such statement shall not constitute a waiver of
Landlord's rights to collect for such Excess Expenses. If Tenant's Share of the
actual Excess Expenses for the previous Computation Year exceeds the total of
the estimated monthly payments made by Tenant for such year, Tenant shall pay
Landlord the amount of the deficiency within thirty (30) days of the receipt of
the statement. If such total exceeds Tenant's Share of the actual Excess
Expenses for such Computation Year, then Landlord shall credit against Tenant's
next ensuing monthly installment(s) of Excess Expense an amount equal to the
difference until the credit is exhausted. If a credit is due from Landlord on
the Expiration Date, Landlord shall pay Tenant the amount of the credit. The
obligations of Tenant and Landlord to make payments required under this Section
shall survive the expiration date of the Term. Tenant's Share of Excess Expenses
in any Computation Year having less than 365 days shall be appropriately
prorated.
(c) Allocated Expenses. Notwithstanding the calculation of Tenant's
Share of Project Expenses, Landlord may specifically allocate certain Project
Expenses to specific tenants, including Tenant, based upon the nexus of such
specific expense or service incurred to such tenant's building(s) and/or
operations(s), as reasonably determined by Landlord. Allocated Project Expenses
shall be paid in full by the designated tenant utilizing the monthly payment
process set forth in this Section 10. If a tenant is assessed an allocated
Project Expense, such Tenant's obligation to pay its share of standard Project
Expenses shall be equitably adjusted (in no event shall Landlord recover more
than one hundred percent (100.00%) of Project Expenses incurred).
(d) Disputes. If there is any dispute as to any Additional Rent due
under this Section 10, for a period of six (6) months following Tenant's receipt
of the actual Expense Statement, Tenant shall have the right, after reasonable
notice and at reasonable times, to inspect Landlord's accounting records at
Landlord's accounting office. If after such inspection Tenant still disputes
such Additional Rent, upon Tenant's written request therefore, a certification
as to the proper amount of Project Expenses and the amount due to or payable by
Tenant shall be made by an independent accounting firm selected by Landlord and
Tenant. If Landlord and Tenant are unable to agree upon an accounting firm,
Landlord and Tenant shall each select an accounting firm and the two firms so
selected shall select a third firm which shall make the certification requested
hereunder. Tenant agrees to pay all costs and expenses incurred in connection
with such certification. Such certification shall be final and conclusive as to
all parties. Notwithstanding the foregoing, in no event shall Tenant be entitled
to withhold payment of Additional Rent during the certification process and
Tenant shall remain obligated to pay all Additional Rent due as otherwise set
forth in this Lease. In the event Tenant shall prevail in the certification
process, Landlord, at its election, shall either promptly refund any excess
Additional Rent payments to Tenant or shall apply such excess as a credit
against future Additional Rent due from Tenant.
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11. Amortization of Tenant Improvements. In addition to, and concurrent
with payments of Base Rent for months one (1) though thirty-six (36) following
the New Premises Commencement Date, Tenant shall pay to Landlord, without
notice, or demand and without abatement, deduction or offset, the amount of Six
Thousand Four Hundred Fifty-Three and Forty-Four/100ths ($6,453.44) per month
("TI AMORTIZATION PAYMENT"), which amount is based upon Landlord's estimated
cost to construct the Tenant Improvements for Building 618 (as set forth in the
Schedules attached hereto as Exhibit F) in the amount of Two Hundred Thousand
and No/100ths Dollars ($200,000.00). In the event Tenant requests Landlord to
construct additional Tenant Improvements, the TI Amortization Payment shall be
increased based upon the actual cost of the work, and amortized over the Term of
this Lease at ten percent (10%) per annum. Landlord and Tenant shall approve any
such increase in the TI Amortization Payment, in writing, as more particularly
set forth in the Work Letter Agreement. Amounts payable under this Section are
within the definition of Rent, and the failure to make such payment shall be
deemed an Event of Default under the Lease. In such event, provided that such
Event of Default results in a termination of the Lease, all amounts payable by
Tenant under this Section for the remainder of the Term shall be accelerated and
due in full at such time. Notwithstanding any other provisions of the Lease to
the contrary, if the Lease is terminated for any reason, Tenant shall remain
obligated to reimburse Landlord for the TI Amortization Payment funded by
Landlord pursuant to this Section 11.
12. Ratification. Except as modified by this Third Amendment, the Lease is
ratified, affirmed, remains in full force and effect, and is incorporated herein
by this reference.
13. Authority. The undersigned hereby represent and warrant, each to the
other, that (i) they have the legal right, power and authority to enter into
this Third Amendment on behalf of the party for whom they are a signatory, and
(ii) the execution, delivery and performance of this Third Amendment has been
duly authorized, and (iii) no other action is requisite to the valid and binding
execution, delivery and performance of the Lease as modified by this Third
Amendment.
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14. Counterparts. This Third Amendment may be executed in multiple
counterparts, each of which counterpart shall be deemed an original, but all of
which, together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
as of the date set forth above.
LANDLORD: TENANT:
MP HOLDINGS, LLC, a California limited JSI MICROELECTRONICS, INC.,
liability company a California corporation
By: XxXxxxxxx Business Park LLC, a
Delaware limited liability company
By: /s/ Xxxxx X. Xxxxxxx
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By: XX XxXXXXXXX, LLC, a Title: President / General Manager
California limited liability
company
Its: Member Date:7/7/05
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Date: 7/18/05
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