FIRST AMENDMENT TO LEASE
Exhibit 10.1
FIRST AMENDMENT TO LEASE
I. PARTIES AND DATE.
This First Amendment to Lease (the “Amendment”) dated April 21, 2010, is by and between THE
IRVINE COMPANY LLC, a Delaware limited liability company, formerly The Irvine Company, a Delaware
corporation (“Landlord”), and XXXXX.XXX CORPORATION, a Delaware corporation (“Tenant”) as
successor-in-interest to Interchange Corporation, a Delaware corporation (“Original Tenant”).
II. RECITALS.
On March 18, 2005, Landlord and Original Tenant entered into a lease (“Lease”) for space in a
building located at 0X Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx (the “1G Technology Premises”).
On November 2, 2006 Original Tenant merged with and into Interchange Merger Sub, Inc., a
Delaware corporation, which merged entity then changed its name to Xxxxx.Xxx Corporation.
Landlord and Tenant each desire to modify the Lease to terminate Tenant’s leasing of the 1G
Technology Premises in exchange for Tenant’s leasing of approximately 34,612 rentable square feet
of space in a building located at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx, which space is more
particularly described on Exhibit A attached to this Amendment and herein referred to as
the “7555 Irvine Center Drive Premises”, to extend the Term of the Lease as to the 0000 Xxxxxx
Xxxxxx Xxxxx Premises, to adjust the Basic Rent and to make such other modifications as are set
forth in “III. MODIFICATIONS” next below.
III. MODIFICATIONS.
A. Termination as to the 1G Technology Premises. The parties agree that Tenant’s
lease as to the 1G Technology Premises shall terminate (the “1G Technology Premises Termination
Date”) at midnight on the day preceding the “Commencement Date for the 0000 Xxxxxx Xxxxxx Xxxxx
Premises” (as hereinafter defined), provided that such termination shall not relieve Tenant of (i)
any rent or other charges owed by Tenant, or other obligations required of Tenant, as are set forth
in the Lease from and after the date of this Amendment through and including the 1G Technology
Premises Termination Date, (ii) any obligations which are set forth in this Amendment, and (iii)
any indemnity or hold harmless obligations set forth in the Lease as to the 1G Technology Premises
which survive the termination of the Lease. It is further understood and agreed that Tenant shall
not be obligated to pay the “holdover” rate pursuant to the provisions of Section 15.1 of the Lease
for any Basic Rent payable for any portion of the Term of the Lease as to the 1G Technology
Premises through and including the 1G Technology Premises Termination Date.
B. Premises, Building and Project. Effective as of the Commencement Date for the
0000 Xxxxxx Xxxxxx Xxxxx Premises: (i) all references to the “Premises” in the Lease shall be
amended to refer to the 0000 Xxxxxx Xxxxxx Xxxxx Premises, (ii) all references to the “Building” in
the Lease shall be amended to refer to the building located at 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxx (the “7555 Irvine Center Drive Building”), (iii) all references to the “Project” in the
Lease shall be amended to refer to the project shown on Exhibit Y attached to this
Amendment and known as “Irvine Business Center”, and (iv) all references to the “Commencement Date”
in the Lease shall be amended to refer, where applicable, to the “Commencement Date for the 0000
Xxxxxx Xxxxxx Xxxxx Premises”.
C. Basic Lease Provisions. The Basic Lease Provisions are hereby amended as follows:
1. Effective as of the Commencement Date for the 0000 Xxxxxx Xxxxxx Xxxxx Premises,
Item 1 shall be deleted in its entirety and substituted therefor shall be the
following:
“1. Premises: The Premises are more particularly shown in Exhibit
A attached to this Amendment.”
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Address of Building: 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxx, XX”
2. Effective as of the Commencement Date for the 0000 Xxxxxx
Xxxxxx Xxxxx Premises, Item 2 shall be deleted in its entirety and substituted
therefor shall be the following:
“Project Description: Irvine Business Center”
3. Item 4 is hereby amended by adding the following:
“Commencement Date for the 0000 Xxxxxx Xxxxxx Xxxxx Premises” shall mean the
date of Landlord’s tender of possession of the 0000 Xxxxxx Xxxxxx Xxxxx
Premises to Tenant with the “Tenant Improvements” for the 0000 Xxxxxx Xxxxxx
Xxxxx Premises (as hereinafter defined) substantially completed but for
minor punch list items. Landlord shall diligently complete all such punch
list matters within thirty (30) days. Prior to Tenant’s taking possession
of the 0000 Xxxxxx Xxxxxx Xxxxx Premises, the parties shall memorialize on a
form provided by Landlord the actual Commencement Date for the 0000 Xxxxxx
Xxxxxx Xxxxx Premises, provided that Tenant’s failure to execute that form
shall not affect the validity of Landlord’s reasonable determination of said
Date. The acknowledgments contained in the initial two sentences of Section
2.2 of the Lease shall be applicable and binding with respect to Tenant’s
lease of the 0000 Xxxxxx Xxxxxx Xxxxx Premises. Tenant further acknowledges
that flooring materials which may be installed by Tenant within those
portions of the 0000 Xxxxxx Xxxxxx Xxxxx Premises located on the ground
floor of the 0000 Xxxxxx Xxxxxx Xxxxx Building may be limited by the
moisture content of the building slab and underlying soils. As of the
Commencement Date for the 0000 Xxxxxx Xxxxxx Xxxxx Premises, Tenant shall be
conclusively deemed to have accepted that the 0000 Xxxxxx Xxxxxx Xxxxx
Premises is in satisfactory condition and in conformity with the provisions
of the Lease, subject only to those defective or incomplete portions of the
Tenant Improvements for the 0000 Xxxxxx Xxxxxx Xxxxx Premises which Tenant
shall have itemized on a written punch list and delivered to Landlord within
thirty (30) days after the Commencement Date for the 0000 Xxxxxx Xxxxxx
Xxxxx Premises.”
4. Item 5 is hereby deleted in its entirety and substituted therefor shall be the
following:
“5. Lease Term: The Term of this Lease shall expire at midnight on June
30, 2015”
5. Item 6 is hereby amended by adding the following:
“Commencing on the Commencement Date for the 0000 Xxxxxx Xxxxxx Xxxxx
Premises, the Basic Rent for the 0000 Xxxxxx Xxxxxx Xxxxx Premises shall be
Thirty Two Thousand Eight Hundred Eighty-One Dollars ($32,881.00) per month,
based on $.95 per rentable square foot.
Commencing twelve (12) months following the Commencement Date for the 0000
Xxxxxx Xxxxxx Xxxxx Premises, the Basic Rent for the 0000 Xxxxxx Xxxxxx
Xxxxx Premises shall be Thirty Five Thousand Three Hundred Four Dollars
($35,304.00) per month, based on $1.02 per rentable square foot.
Commencing twenty-four (24) months following the Commencement Date for the
0000 Xxxxxx Xxxxxx Xxxxx Premises, the Basic Rent for the 0000 Xxxxxx Xxxxxx
Xxxxx Premises shall be Thirty Seven Thousand Thirty-Five Dollars
($37,035.00) per month, based on $1.07 per rentable square foot.
Commencing thirty-six (36) months following the Commencement Date for
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the 0000 Xxxxxx Xxxxxx Xxxxx Premises, the Basic Rent for the 0000 Xxxxxx
Xxxxxx Xxxxx Premises shall be Forty Thousand Four Hundred Ninety-Six
Dollars ($40,496.00) per month, based on $1.17 per rentable square foot.
Commencing forty-eight (48) months following the Commencement Date for the
0000 Xxxxxx Xxxxxx Xxxxx Premises, the Basic Rent for the 0000 Xxxxxx Xxxxxx
Xxxxx Premises is Forty Two Thousand Two Hundred Twenty-Seven Dollars
($42,227.00) per month, based on $1.22 per rentable square foot.
Notwithstanding the above schedule of Basic Rent for the 0000 Xxxxxx Xxxxxx
Xxxxx Premises to the contrary, Tenant shall be entitled to an abatement of
three (3) full calendar months of Basic Rent for the 0000 Xxxxxx Xxxxxx
Xxxxx Premises in the aggregate amount of Ninety Eight Thousand Six Hundred
Forty-Three Dollars ($98,643.00) (i.e. $32,881.00 per month) (the “Abated
Basic Rent”) for the initial three (3) full calendar months of the Term for
the 0000 Xxxxxx Xxxxxx Xxxxx Premises (the “Abatement Period”). Only Basic
Rent shall be abated during the Abatement Period and all other additional
rent and other costs and charges specified in this Lease shall remain as due
and payable pursuant to the provisions of this Lease.”
6. Effective as of the Commencement Date for the 0000 Xxxxxx Xxxxxx Xxxxx Premises,
Item 8 shall be deleted in its entirety and substituted therefor shall be the
following:
“8. Floor Area of Premises: Approximately 34,612 rentable square feet”
7. Item 14 is hereby deleted in its entirety and substituted therefor shall be the
following:
“14. Vehicle Parking Spaces: One Hundred Twenty-Seven (127)”
D. Right to Extend the Lease. The provisions of Section 3.3 of the Lease entitled
“Right to Extend this Lease” shall remain in full force and effect and exercisable by Tenant during
the Term of the Lease as extended by this Amendment, except that: (i) the reference in the second
(2nd) sentence of the first (1st) paragraph to “not less than nine (9) months
or more than twelve (12) months” is hereby revised to “not less than eight (8) months or more than
ten (10) months”; and (ii) the first sentence of the last paragraph of said Section 3.3 is hereby
deleted in its entirety and substituted therefor shall be the following: “If Tenant fails to
timely exercise the extension rights created by this Section 3.3 within the time period set forth
in the initial paragraph of this Section 3.3, then Tenant’s right to extend the Term shall be
extinguished and the Lease shall automatically terminate as of the expiration date of the Term,
without any extension and without any liability to Landlord.”
E. Letter of Credit. Section 4.3 of the Lease is hereby amended to provide that, not
later than the Tenant’s execution of this Amendment, Tenant shall increase the principal amount of
the letter of credit therein referred to (the “Letter of Credit”) from its current principal amount
of $35,448.00 to the principal amount of $46,449.00. Tenant shall further instruct the issuing
bank to change the “Applicant’s” name on the Letter of Credit to “Xxxxx.Xxx Corporation” pursuant
to an amendment to the Letter of Credit acceptable to Landlord. Notwithstanding anything to the
contrary in the Lease, it is understood and agreed that the Letter of Credit in the increased
principal amount herein provided shall be maintained in effect through the Expiration Date of this
Lease as extended by this Amendment, and that the provisions of the third paragraph of Section 4.3
of the Lease are hereby deleted in their entirety and shall have no further force or effect.
F. Signage. The reference in the first (1st) sentence of Section 5.2 to
“one (1) exterior building-top sign and one (1) exterior eyebrow sign on the Building” is hereby
revised to “two (2) exterior “building-top” signs on the 0000 Xxxxxx Xxxxxx Xxxxx Xxxxxxxx”.
G. “After Hours” HVAC. The parties confirm and agree that the “reasonable charge” as
used in Section 6.1 of the Lease for Tenant’s “after hours” usage of each HVAC servicing the
Premises, shall mean the following charges (in addition to the electricity charges paid to the
utility
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provider): (i) $5.00 per hour for 1-5 ton HVAC units, (ii) $7.50 per hour for 6-30 ton HVAC
units and (iii) $10.00 per hour for HVAC units of greater than 30 tons. The parties further agree
to amend the definition of “after hours” in Section 6.1 of the Lease from “. . . more than two
hundred eighty-three (283) hours of usage during any month during the Term” to “. . . more than
sixty-six (66) hours of usage during any week during the Term.”
H. Existing UPS Equipment. The Lease of the 0000 Xxxxxx Xxxxxx Xxxxx Premises
includes the UPS equipment which currently exists in the 0000 Xxxxxx Xxxxxx Xxxxx Premises as of
the Commencement Date for the 0000 Xxxxxx Xxxxxx Xxxxx Premises, which is leased to Tenant in an
“as is” condition. It is understood and agreed that Tenant shall not remove the UPS equipment
existing in the 0000 Xxxxxx Xxxxxx Xxxxx Premises at any time during the Term, and that the UPS
equipment shall remain the property of Landlord upon the Expiration Date or earlier termination of
the Lease.
I. Tenant’s Indemnity. Section 10.3 of the Lease is hereby deleted in its entirety
and substituted therefor shall be the following:
“SECTION 10.3. TENANT’S INDEMNITY. To the fullest extent permitted by law, Tenant shall
defend, indemnify, protect, save and hold harmless Landlord, its agents, and any and all affiliates
of Landlord, including, without limitation, any corporations or other entities controlling,
controlled by or under common control with Landlord, from and against any and all claims,
liabilities, costs or expenses arising either before or after the Commencement Date from Tenant’s
use or occupancy of the Premises, the Building or the Common Areas, including, without limitation,
the use by Tenant, its agents, employees, invitees or licensees of any recreational facilities
within the Common Areas, or from the conduct of its business, or from any activity, work, or thing
done, permitted or suffered by Tenant or its agents, employees, invitees or licensees in or about
the Premises, the Building or the Common Areas, or from any Event of Default in the performance of
any obligation on Tenant’s part to be performed under this Lease, or from any act or negligence of
Tenant or its agents, employees, visitors, patrons, guests, invitees or licensees. Landlord may,
at its option, require Tenant to assume Landlord’s defense in any action covered by this Section
through counsel reasonably satisfactory to Landlord. The provisions of this Section shall
expressly survive the expiration or sooner termination of this Lease. Tenant’s obligations under
this Section shall not apply in the event that the claim, liability, cost or expense is ultimately
determined to have been caused by the negligence or willful misconduct of Landlord.”
J. Landlord’s Nonliability. Section 10.4 of the Lease is hereby deleted in its
entirety and substituted therefor shall be the following:
“SECTION 10.4. LANDLORD’S NONLIABILITY. Landlord shall not be liable to Tenant, its
employees, agents and invitees, and Tenant hereby waives all claims against Landlord and knowingly
assumes the risk of for loss of or damage to any property, injury or liability whatsoever resulting
from, but not limited to, Acts of God, acts of civil disobedience or insurrection, acts or
omissions of third parties and/or of other tenants within the Project or their agents, employees,
contractors, guests or invitees, fire, explosion, falling plaster, steam, gas, electricity, water
or rain which may leak or flow from or into any part of the Premises or from the breakage, leakage,
obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air
conditioning, electrical works, roof, windows or other fixtures in the Building, whether the damage
or injury results from conditions arising in the Premises or in other portions of the Building,
except to the extent of the gross negligence or willful misconduct of Landlord, its agents or any
and all affiliates of Landlord in connection with the foregoing (but subject to Section 10.5
below). It is understood that any such condition may require the temporary evacuation or closure
of all or a portion of the Building. Landlord shall have no liability whatsoever for Tenant’s
consequential damages, lost profit or opportunity costs and, except as provided in Sections 11.1
and 12.1 below, there shall be no abatement of rent, by reason of any injury to or interference
with Tenant’s business arising from the making of any repairs, alterations or improvements to any
portion of the Building, including repairs to the Premises, nor shall any related activity by
Landlord constitute an actual or constructive eviction; provided, however, that in making repairs,
alterations or improvements, Landlord shall interfere as little as reasonably practicable with the
conduct of Tenant’s business in the Premises. Should Tenant elect to receive any service or
products from a concessionaire, licensee or third party tenant of Landlord, Landlord shall have no
liability for any services or products so provided or for any breach of contract by such third
party provider. Neither Landlord nor its agents
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shall be liable for interference with light or other similar intangible interests. Tenant
shall immediately notify Landlord in case of fire or accident in the Premises, the Building or the
Project and of defects in any improvements or equipment.”
K. Tenant’s Defaults. Section 14.1(c) of the Lease is hereby deleted in its entirety
and shall have no further force or effect.
L. Late Payments. The reference to “Two Hundred Fifty Dollars ($250.00)” in Section
14.3(a) of the Lease is hereby amended to “One Hundred Dollars ($100.00).”
M. Waiver of Jury Trial. Section 14.7 of the Lease is hereby deleted in its entirety
and substituted therefor shall be the following:
SECTION 14.7. WAIVER OF JURY TRIAL/JUDICIAL REFERENCE.
(a) LANDLORD AND TENANT EACH ACKNOWLEDGES THAT IT IS AWARE OF AND HAS HAD THE ADVICE OF
COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHTS TO TRIAL BY JURY, AND, TO THE EXTENT ENFORCEABLE
UNDER CALIFORNIA LAW, EACH PARTY DOES HEREBY EXPRESSLY AND KNOWINGLY WAIVE AND RELEASE ALL SUCH
RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY HERETO
AGAINST THE OTHER (AND/OR AGAINST ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBSIDIARY OR
AFFILIATED ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
LEASE, TENANT’S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OF INJURY OR DAMAGE.
FURTHERMORE, THIS WAIVER AND RELEASE OF ALL RIGHTS TO A JURY TRIAL IS DEEMED TO BE INDEPENDENT OF
EACH AND EVERY OTHER PROVISION, COVENANT, AND/OR CONDITION SET FORTH IN THIS LEASE.
(b) IN THE EVENT THAT THE JURY WAIVER PROVISIONS OF SECTION 14.7(a) ARE NOT ENFORCEABLE UNDER
CALIFORNIA LAW, THEN THE PROVISIONS OF THIS SECTION 14.7(b) SHALL APPLY. IT IS THE DESIRE AND
INTENTION OF THE PARTIES TO AGREE UPON A MECHANISM AND PROCEDURE UNDER WHICH CONTROVERSIES AND
DISPUTES ARISING OUT OF THIS LEASE OR RELATED TO THE PREMISES WILL BE RESOLVED IN A PROMPT AND
EXPEDITIOUS MANNER. ACCORDINGLY, EXCEPT WITH RESPECT TO ACTIONS FOR UNLAWFUL OR FORCIBLE DETAINER
OR WITH RESPECT TO THE PREJUDGMENT REMEDY OF ATTACHMENT, ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER PARTY HERETO AGAINST THE OTHER (AND/OR AGAINST ITS OFFICERS, DIRECTORS,
EMPLOYEES, AGENTS OR SUBSIDIARY OR AFFILIATED ENTITIES) ON ANY MATTERS WHATSOEVER ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS LEASE, TENANT’S USE OR OCCUPANCY OF THE PREMISES AND/OR ANY CLAIM OF
INJURY OR DAMAGE, SHALL BE HEARD AND RESOLVED BY A REFEREE UNDER THE PROVISIONS OF THE CALIFORNIA
CODE OF CIVIL PROCEDURE, SECTIONS 638 — 645.1, INCLUSIVE (AS SAME MAY BE AMENDED, OR ANY SUCCESSOR
STATUTE(S) THERETO) (THE “REFEREE SECTIONS”). ANY FEE TO INITIATE THE JUDICIAL REFERENCE
PROCEEDINGS SHALL BE PAID BY THE PARTY INITIATING SUCH PROCEDURE; PROVIDED HOWEVER, THAT THE COSTS
AND FEES, INCLUDING ANY INITIATION FEE, OF SUCH PROCEEDING SHALL ULTIMATELY BE BORNE IN ACCORDANCE
WITH SECTION 14.6 ABOVE. THE VENUE OF THE PROCEEDINGS SHALL BE IN THE COUNTY IN WHICH THE PREMISES
ARE LOCATED. WITHIN TEN (10) DAYS OF RECEIPT BY ANY PARTY OF A WRITTEN REQUEST TO RESOLVE ANY
DISPUTE OR CONTROVERSY PURSUANT TO THIS SECTION 14.7(b), THE PARTIES SHALL AGREE UPON A SINGLE
REFEREE WHO SHALL TRY ALL ISSUES, WHETHER OF FACT OR LAW, AND REPORT A FINDING AND JUDGMENT ON SUCH
ISSUES AS REQUIRED BY THE REFEREE SECTIONS. IF THE PARTIES ARE UNABLE TO AGREE UPON A REFEREE
WITHIN SUCH TEN (10) DAY PERIOD, THEN ANY PARTY MAY THEREAFTER FILE A LAWSUIT IN THE COUNTY IN
WHICH THE PREMISES ARE LOCATED FOR THE PURPOSE OF APPOINTMENT OF A REFEREE UNDER
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CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 638 AND 640, AS SAME MAY BE AMENDED OF ANY
SUCCESSOR STATUTE(S) THERETO. IF THE REFEREE IS APPOINTED BY THE COURT, THE REFEREE SHALL BE A
NEUTRAL AND IMPARTIAL RETIRED JUDGE WITH SUBSTANTIAL EXPERIENCE IN THE RELEVANT MATTERS TO BE
DETERMINED, FROM JAMS/ENDISPUTE, INC., THE AMERICAN ARBITRATION ASSOCIATION OR SIMILAR
MEDIATION/ARBITRATION ENTITY. THE PROPOSED REFEREE MAY BE CHALLENGED BY ANY PARTY FOR ANY OF THE
GROUNDS LISTED IN SECTION 641 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE, AS SAME MAY BE AMENDED OR
ANY SUCCESSOR STATUTE(S) THERETO. THE REFEREE SHALL HAVE THE POWER TO DECIDE ALL ISSUES OF FACT
AND LAW AND REPORT HIS OR HER DECISION ON SUCH ISSUES, AND TO ISSUE ALL RECOGNIZED REMEDIES
AVAILABLE AT LAW OR IN EQUITY FOR ANY CAUSE OF ACTION THAT IS BEFORE THE REFEREE, INCLUDING AN
AWARD OF ATTORNEYS’ FEES AND COSTS IN ACCORDANCE WITH CALIFORNIA LAW. THE REFEREE SHALL NOT,
HOWEVER, HAVE THE POWER TO AWARD PUNITIVE DAMAGES, NOR ANY OTHER DAMAGES WHICH ARE NOT PERMITTED BY
THE EXPRESS PROVISIONS OF THIS LEASE, AND THE PARTIES HEREBY WAIVE ANY RIGHT TO RECOVER ANY SUCH
DAMAGES. THE PARTIES SHALL BE ENTITLED TO CONDUCT ALL DISCOVERY AS PROVIDED IN THE CALIFORNIA CODE
OF CIVIL PROCEDURE, AND THE REFEREE SHALL OVERSEE DISCOVERY AND MAY ENFORCE ALL DISCOVERY ORDERS IN
THE SAME MANNER AS ANY TRIAL COURT JUDGE, WITH RIGHTS TO REGULATE DISCOVERY AND TO ISSUE AND
ENFORCE SUBPOENAS, PROTECTIVE ORDERS AND OTHER LIMITATIONS ON DISCOVERY AVAILABLE UNDER CALIFORNIA
LAW. THE REFERENCE PROCEEDING SHALL BE CONDUCTED IN ACCORDANCE WITH CALIFORNIA LAW (INCLUDING THE
RULES OF EVIDENCE), AND IN ALL REGARDS, THE REFEREE SHALL FOLLOW CALIFORNIA LAW APPLICABLE AT THE
TIME OF THE REFERENCE PROCEEDING. IN ACCORDANCE WITH SECTION 644 OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE, THE DECISION OF THE REFEREE UPON THE WHOLE ISSUE MUST STAND AS THE DECISION OF THE
COURT, AND UPON THE FILING OF THE STATEMENT OF DECISION WITH THE CLERK OF THE COURT, OR WITH THE
JUDGE IF THERE IS NO CLERK, JUDGMENT MAY BE ENTERED THEREON IN THE SAME MANNER AS IF THE ACTION HAD
BEEN TRIED BY THE COURT. THE PARTIES SHALL PROMPTLY AND DILIGENTLY COOPERATE WITH ONE ANOTHER AND
THE REFEREE, AND SHALL PERFORM SUCH ACTS AS MAY BE NECESSARY TO OBTAIN A PROMPT AND EXPEDITIOUS
RESOLUTION OF THE DISPUTE OR CONTROVERSY IN ACCORDANCE WITH THE TERMS OF THIS SECTION 14.7(b). TO
THE EXTENT THAT NO PENDING LAWSUIT HAS BEEN FILED TO OBTAIN THE APPOINTMENT OF A REFEREE, ANY
PARTY, AFTER THE ISSUANCE OF THE DECISION OF THE REFEREE, MAY APPLY TO THE COURT OF THE COUNTY IN
WHICH THE PREMISES ARE LOCATED FOR CONFIRMATION BY THE COURT OF THE DECISION OF THE REFEREE IN THE
SAME MANNER AS A PETITION FOR CONFIRMATION OF AN ARBITRATION AWARD PURSUANT TO CODE OF CIVIL
PROCEDURE SECTION 1285 ET SEQ. (AS SAME MAY BE AMENDED OR ANY SUCCESSOR STATUTE(S) THERETO).
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N. Prorations. The third sentence of Article XVI of the Lease is hereby deleted in
its entirety, and substituted therefore shall be the following:
“All payments requiring proration shall be prorated on the basis of the number of
days in the pertinent calendar month or year, as applicable.”
O. Broker’s Commission. Article XVIII of the Lease is amended to provide that the
parties recognize the following parties as the brokers who negotiated this Amendment, and agree
that Landlord shall be responsible for payment of brokerage commissions to such brokers pursuant to
its separate agreements with such brokers: Irvine Realty Company (“Landlord’s Broker”) and Colliers
International/Irvine (“Tenant’s Broker”). It is understood and agreed that Landlord’s Broker
represents only Landlord in connection with the execution of this Amendment and that Tenant’s
Broker represents only Tenant. The warranty and indemnity provisions of Article XVIII of the
Lease, as amended hereby, shall be binding and enforceable in connection with the negotiation of
this Amendment.
P. Tenant Improvements. Landlord hereby agrees to complete the Tenant Improvements
for the 0000 Xxxxxx Xxxxxx Xxxxx Premises in accordance with the provisions of Exhibit X,
Work Letter, attached hereto.
IV. GENERAL.
A. Effect of Amendments. The Lease shall remain in full force and effect except to
the extent that it is modified by this Amendment.
B. Entire Agreement. This Amendment embodies the entire understanding between
Landlord and Tenant with respect to the modifications set forth in “III. MODIFICATIONS” above and
can be changed only by a writing signed by Landlord and Tenant.
C. Counterparts. If this Amendment is executed in counterparts, each is hereby
declared to be an original; all, however, shall constitute but one and the same amendment. In any
action or proceeding, any photographic, photostatic, or other copy of this Amendment may be
introduced into evidence without foundation.
D. Defined Terms. All words commencing with initial capital letters in this
Amendment and defined in the Lease shall have the same meaning in this Amendment as in the Lease,
unless they are otherwise defined in this Amendment.
E. Corporate and Partnership Authority. If Tenant is a corporation or partnership,
or is comprised of either or both of them, each individual executing this Amendment for the
corporation or partnership represents that he or she is duly authorized to execute and deliver this
Amendment on behalf of the corporation or partnership and that this Amendment is binding upon the
corporation or partnership in accordance with its terms.
F. SDN List. Tenant hereby represents and warrants that neither Tenant nor any
officer, director, employee, partner, member or other principal of Tenant (collectively, “Tenant
Parties”) is listed as a Specially Designated National and Blocked Person (“SDN”) on the list of
such persons and entities issued by the U.S. Treasury Office of Foreign Assets Control (OFAC). In
the event Tenant or any Tenant Party is or becomes listed as an SDN, Tenant shall be deemed in
breach of this Lease and Landlord shall have the right to terminate this Lease immediately upon
written notice to Tenant.
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V. EXECUTION.
Landlord and Tenant executed this Amendment on the date as set forth in “I. PARTIES AND DATE.”
above.
| LANDLORD: | TENANT: | |||||||||||
| THE IRVINE COMPANY LLC | XXXXX.XXX CORPORATION, | |||||||||||
| a Delaware limited liability company | a Delaware corporation | |||||||||||
| By | /s/ Xxxxxx X. Case | By | /s/ Xxxxxxx X. Xxxxx | |||||||||
| Xxxxxx X. Case, Executive Vice President | Name | Xxxxxxx X. Xxxxx | ||||||||||
| Office Properties | Title | President and Chief Operating Officer | ||||||||||
| By | /s/ Xxxxx XxXxxxx | By | /s/ Xxxxxx Xxxxx | |||||||||
| Xxxxx XxXxxxx, Vice President | Name | Xxxxxx Xxxxx | ||||||||||
| Operations, Office Properties | Title | Chief Financial Officer | ||||||||||
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