Exhibit 10.8
SIXTH AMENDMENT TO LEASE
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THIS SIXTH AMENDMENT TO LEASE (this "Amendment") is dated for reference
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purposes only as October 31, 2000, by and between CARRAMERICA REALTY
CORPORATION, a Maryland corporation ("Landlord"), and PERICOM SEMICONDUCTOR
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CORPORATION, a California corporation ("Tenant").
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RECITALS
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A. Orchard Investment Company Number 510, a California general partnership
("Orchard"), Landlord's predecessor in interest, as landlord, and Tenant, as
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tenant, entered into that certain Lease (and First Addendum thereto) dated
November 29, 1993 (collectively, the "Initial Lease"), in which Orchard leased
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to Tenant and Tenant leased from Orchard, approximately 19,786 square feet
within that certain building which contains approximately 27,488 square feet
commonly known as 0000-0000 Xxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx ("Building C"),
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as more particularly described on Exhibit A attached to the Original Lease (the
"Initial Premises"). Orchard and Tenant also entered into that certain
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Acceptance Agreement dated as of January 28, 1994 regarding the Initial
Premises.
B. Orchard and Tenant entered into that certain First Amendment to Lease
(the "First Amendment") dated February 5, 1996 pursuant to which Tenant leased
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an additional 7,000 rentable square feet (the "First Expansion Space") and the
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Lease Term was extended. The First Expansion Space is located in the building
containing approximately 25,888 square feet commonly known as 0000-0000 Xxxxxx
Xxxxx, Xxx Xxxx, Xxxxxxxxxx ("Building E"), as more particularly described on
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Exhibit A to the First Amendment. Orchard and Tenant also entered into that
certain Interior Improvement Agreement and that certain Acceptance Agreement
regarding the First Expansion Space, each dated February 5, 1996.
C. All of Orchard's rights, title and interest in the Initial Lease, as
amended by the First Amendment, were assigned to Landlord in connection with
Landlord's acquisition of the Project.
D. Landlord and Tenant subsequently entered into that certain Second
Amendment to Lease (the "Second Amendment") dated July 31, 1997 pursuant to
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which the Tenant leased an additional 7,702 square feet (the "Second Expansion
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Space"). The Second Expansion Space is located in Building C, as more
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particularly described on Exhibit A of the Second Amendment. Landlord and Tenant
also entered into that certain Tenant Improvements Construction Agreement
regarding the Second Expansion Space dated July 31, 1997.
E. Landlord and Tenant subsequently entered into that certain Third
Amendment to Lease (the "Third Amendment") dated April 23, 1999 pursuant to
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which the Tenant leased an additional 13,000 square feet (the "Third Expansion
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Space"). The Third Expansion Space is located in Building E, as more
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particularly described on Exhibit A of the Third Amendment.
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F. Landlord and Tenant subsequently entered into that certain Fourth
Amendment to Lease (the "Fourth Amendment") dated January 21, 2000, pursuant to
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which the Tenant leased an additional containing approximately 5,888 square feet
in 0000 Xxxxxx Xxxxx, Xxxxxxxx X (the "Fourth Expansion Space"). The Fourth
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Expansion Space is located in Building E, as more particularly described on
Exhibit A of the Fourth Amendment. The Initial Premises as increased by the
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First Expansion Space, Second Expansion Space, Third Expansion Space and Fourth
Expansion Space is hereinafter collectively referred to as the "Exisitng
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Premises".
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G. Landlord and Tenant subsequently entered into that certain Fifth
Amendment to Lease (the "Fifth Amendment") dated May 1, 2000, pursuant to which
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Landlord and Tenant amended the Fourth Amendment to accelerate the Fourth
Expansion Space Commencement Date and to modify the Monthly Base Rent payment
schedule accordingly.
H. Subject to the terms and conditions set forth herein, Landlord and
Tenant now desire to further amend the Lease to increase the size of the
Existing Premises by adding the Fifth Expansion Space (as defined below in)
containing approximately 12,888 rentable square feet located in Building B at
0000 Xxxxxx Xxxx subject to the terms and conditions set forth herein. The Fifth
Expansion Space was described as the First Negotiation Space in the Fourth
Amendment. The Initial Lease, as amended by the First Amendment, Second
Amendment, Third Amendment, Fourth Amendment and Fifth Amendment, and as
supplemented by the Interior Improvement Agreements and Acceptance Agreements,
is hereinafter collectively referred to as the "Original Lease."
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AMENDMENT
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NOW, THEREFORE, for good and valuable consideration, the adequacy of which
is hereby acknowledged, the parties hereby mutually promise, covenant and agree
as follows:
1. Incorporation of Recitals and Definitions. The Recitals are hereby
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incorporated herein by this reference. In the event of any conflicts between the
Original Lease, and this Amendment, the terms of this Amendment shall control.
Capitalized terms used in this Amendment not otherwise defined herein shall have
the meaning given such terms in the Original Lease. The Original Lease, as
amended by this Amendment shall be referred to herein as the "Lease".
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2. Fifth Expansion Space Commencement Date/Term and Early Occupancy Period.
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(a) Fifth Expansion Space Commencement Date and Fifth Expansion Space
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Term. The term of this Lease for the Fifth Expansion Space (the "Fifth Expansion
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Space Term") shall commence on June 1, 2001 (the "Fifth Expansion Space
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Commencement Date") and terminate on May 31, 2005 (the "Fifth Expansion Space
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Termination Date"). The Fifth Expansion Space Term is not coterminous with the
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term of the Lease for the Existing Premises. The Termination Date of the Lease
for the Existing Premises shall remain July 31, 2004.
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(b) Early Occupancy. During the period commencing on April 24, 2001
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and ending on the Fifth Expansion Space Commencement Date (the "Early Occupancy
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Period"), Tenant shall be permitted to enter the Fifth Expansion Space upon
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receipt of notice from the Landlord. Tenant's occupancy of the Fifth Expansion
Space during the Early Occupancy Period shall be subject to all of the terms,
covenants and conditions of this Lease (including, without limitation, Tenant's
obligations to obtain Landlord's prior written consent before commencing any
alterations and Tenant's indemnity and insurance obligations), except that
Landlord agrees, subject to the last sentence of this Section 3(b), that
Tenant's obligation to pay Base Monthly Rent, Operating Cost Share Rent and Tax
Share Rent with respect to the Fifth Expansion Space during the Early Occupancy
Period shall be waived. Notwithstanding the foregoing, Tenant shall pay for all
utility and other costs incurred by Landlord to the extent they relate to
Tenant's work during the Early Occupancy Period.
3. Prior Lease. Tenant agrees and acknowledges that Landlord has
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informed Tenant that the Fifth Expansion Space is occupied by another
tenant/subtenant as of the date of this Amendment (the "Prior Occupant") and
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that in the event Landlord is unable to deliver possession of all or any portion
of the Fifth Expansion Space to Tenant on or before April 24, 2001 for any
reason (including the failure of the Prior Occupant to timely vacate and
surrender such space to Landlord in the manner required under its existing lease
with Landlord), that this Amendment shall not be void or voidable by either
party, and that Landlord shall not be liable to Tenant for any loss or damage
resulting therefrom. Tenant further agrees and acknowledges that in the event
Landlord enters into an early lease termination agreement with the Prior
Occupant pursuant to which the lease with such Prior Occupant for the Fifth
Expansion Space would terminate prior to April 23, 2001 (i.e., the existing
expiration date of the Prior Lease), then (i) Landlord shall provide Tenant with
at least two (2) weeks written notice (the "Prior Lease Termination Notice") of
the new termination date of the Prior Lease (the "Revised Prior Lease
Termination Date") and the new commencement date for the Early Occupancy Period
(the "Revised Early Occupancy Period Commencement Date"), (ii) the Revised Early
Occupancy Period Commencement Date would be the day immediately following the
Revised Prior Lease Termination Date as set forth in Landlord's Prior Lease
Termination Notice,(iii) the Fifth Expansion Space Commencement Date shall be
amended to be that date which is the thirty-ninth (39th) day after the Revised
Prior Lease Termination Date, and (iv) the Base Rent schedule set forth in
Section 5 below shall be adjusted accordingly in an amendment to this Lease.
Notwithstanding the foregoing, in the event that landlord is unable to provide
Tenant with possession of the Premises within one hundred twenty (120) days
following the Revised Early Occupancy Period Commencement Date, then Tenant
shall have a one-time right to terminate this Amendment provided that Tenant
gives Landlord a written termination notice to that effect on or prior to close
of business on the one hundred twentieth (120th) day following the Revised Early
Occupancy Period Commencement Date. Tenant agrees and acknowledges that Landlord
shall have the right to access the Fifth Expansion Space during the Early
Occupancy Period for the purpose of repainting such space and Tenant agrees to
avoid any interference with Landlord's repainting activities during such Early
Occupancy Period.
4. Definition of Premises.
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(a) As of Fifth Expansion Space Commencement Date. As of the Fifth
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Expansion Space Commencement Date, Section D of the Summary of Basic Lease Terms
to the Lease is amended to revise the definition of "Premises" to include: (i)
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the Initial Premises (approximately 19,786 square feet), (ii) the First
Expansion Space (approximately 7,000 square feet), (iii) the Second Expansion
Space (approximately 7,702 square feet), (iv) the Third Expansion Space
(approximately 13,000 square feet), (v) the Fourth Expansion Space
(approximately 5,888 square feet), and (vi) that certain space containing
approximately 12,888 rentable square feet in 0000 Xxxxxx Xxxxx, Xxxxxxxx X (the
"Fifth Expansion Space"). The Fifth Expansion Space is more particularly
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described in Exhibit A attached hereto. Thus, as of the Fifth Expansion Space
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Commencement Date, the Premises shall contain a total of approximately 66,264
square feet.
(b) After Termination Date for Existing Premises. Subject to any
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extension of this Lease pursuant to Section 8 below, as of August 1, 2004, the
definition of "Premises" shall be further amended to mean only the Fifth
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Expansion Space.
5. Rent. As of June 1, 2001, Section K of the Summary of Basic Lease Terms
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to the Original Lease shall be amended in its entirety to read as follows:
Commencing on June 1, 2001, and on the first day of every month for the
remainder of the Term, Tenant shall pay to Landlord (in addition to all other
sums payable by Tenant under the Lease), Base Monthly Rent in the following
amounts:
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Total Existing Fifth Expansion Space Total Base Rent:
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Period: Base Rent: Base Rent:
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June 1, 2001 -
November 30, 2001: $82,732.80 per month $45,108.00 per month $127,840.80 per month
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December 1, 2001 -
May 31, 2002: $85,401.60 per month $45,108.00 per month $130,509.62 per month
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June 1, 2002 -
November 30, 2002: $85,401.60 per month $46,912.32 per month $132,313.92 per month
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December 1, 2002 -
May 31, 2003: $88,070.40 per month $46,912.32 per month $134,982.72 per month
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June 1, 2003 -
November 30, 2003: $88,070.40 per month $48,788.81 per month $136,859.21 per month
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December 1, 2003 -
May 31, 2004: $90,739.20 per month $48,788.81 per month $139,528.01 per month
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June 1, 2004 - July 31,
2004: $90,739.20 per month $50,740.37 per month $141,479.57 per month
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August 1, 2004 -
May 31, 2005: N/A $50,740.37 per month $50,740.37 per month
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Notwithstanding the foregoing, if the Fifth Expansion Space Commencement Date is
adjusted to mean a date other than June 1, 2001 pursuant to Section 3 above,
then Tenant and Landlord agree to enter into an amendment to the Lease to make
the appropriate changes to the foregoing schedule of Monthly Base Rent payments.
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6. Tenant Improvements. The Fifth Expansion Space shall be delivered by
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Landlord to Tenant in its "as-is" broom-clean condition with existing carpet as
of the Fifth Expansion Space Commencement Date, except as provided in Sections
2(b) and 3 above, without any representations or warranties of any kind. Tenant
agrees and acknowledges that Landlord shall have no obligation to make any
repairs or improvements whatsoever to the Fifth Expansion Space (or the Building
or any portion of the Existing Premises), except that Landlord shall: (i)
provide all electrical, plumbing, HVAC and roof systems within the Fifth
Expansion Space in good working condition as of the Fifth Expansion Space
Commencement Date, (ii) repaint the interior of the Fifth Expansion Space, and
(iii) provide to Tenant the "Tenant Improvement Allowance" (as described in the
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"Tenant Improvement Agreement" attached hereto as Exhibit B), subject to the
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terms and conditions set forth in the Tenant Improvement Agreement (including
the increase to the Fifth Expansion Space Base Monthly Rent described therein if
Tenant uses any portion of the Tenant Improvement Allowance). Except as
expressly noted above, Tenant shall be solely responsible for performing all
other improvements within the Building and the Fifth Expansion Space that are
desired by Tenant or which are necessary to comply with applicable Laws. Tenant
further agrees and acknowledges that the Fifth Expansion Space Commencement Date
shall not be dependent upon the completion of any of the foregoing repairs or
improvements (including those which are Landlord's responsibility
7. Tenant's Share.
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(a) As of the Fifth Commencement Date, "Tenant's Share" as set forth in
Section G of the Summary of Basic Lease Terms to the Lease is amended in its
entirety to read: 100% of Building C, 100% of Building E and 49.784% of Building
B (based upon Building B containing approximately 25,888 rentable square feet)
and 39.696% of the Project (based upon the Project containing approximately
166,928 rentable square feet).
(b) As of August 1, 2004, "Tenant's Share" as set forth in Section G of
the Summary of Basic Lease Terms to the Lease is amended in its entirety to
read: 49.784% of Building B (based upon Building B containing approximately
25,888 rentable square feet) and 7.721% of the Project (based upon the Project
containing approximately 166,928 rentable square feet).
8. Option to Renew. Subject to the terms and conditions set forth below,
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Tenant may at its option extend the Lease Term for two (2) periods of three (3)
years for the Existing Premises and the Fifth Expansion Space Premises (each
period to be a "Renewal Term"). Each Renewal Term shall be upon the same terms
contained in this Lease, except that (i) Landlord shall have no obligation to
provide Tenant with any tenant improvement allowance in connection with the
Renewal Term, (ii) the Base Rent during the Renewal Term shall be calculated as
set forth below, (iii) any reference in the Lease to the "Term" of the Lease
shall be deemed to include the Renewal Term and apply thereto, unless it is
expressly provided otherwise. The extension option granted in this Section 8
replaces and supercedes any other extension or renewal options granted to Tenant
under the Lease prior to this Amendment and Tenant agrees and acknowledges that
it has no other extension or renewal options under the Lease, except as provided
in this Section 8.
A. The Base Monthly Rent during a Renewal Term shall be 100% of the
Market Rate (defined hereinafter) for such space for a term commencing on the
first day of the applicable
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portion of the Premises for such Renewal Term. "Market Rate" shall mean the then
prevailing market rate for a comparable term commencing on the first day of the
applicable Renewal Term for tenants of comparable size and creditworthiness for
comparable space in the Building and other R&D/office buildings of comparable
age within similar projects located in the portion of North San Xxxx located
within the boundaries formed by the 880, 101 and 237 highways (the "Geographic
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Area").
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B. The following are the notification provisions for the Option to
Renew for both the Existing Premises and the Fifth Expansion Space Premises:
(i) For the Existing Premises, to exercise its option to extend
the Lease Term for the Existing Premises for the first Renewal Term, Tenant must
deliver a binding notice to Landlord not sooner than nine (9) months nor later
than six (6) months prior to July 31, 2004 (i.e., the current termination date
for the Existing Premises). To exercise its option to extend the Lease Term for
such space, for the second Renewal Term, Tenant must deliver a binding notice to
Landlord not sooner than nine (9) months nor later than six (6) months prior to
July 31, 2007 (i.e., the then applicable termination date for the Existing
Premises).
(ii) For the Fifth Expansion Space Premises, to exercise its
option to extend the Lease Term for the Fifth Expansion Space for the first
Renewal Term, Tenant must deliver a binding notice to Landlord not sooner than
nine (9) months nor later than six (6) months prior to May 31, 2005 (i.e., the
current termination date for the Fifth Expansion Space ). To exercise its option
to extend the Lease Term for the second Renewal Term for such space, Tenant must
deliver a binding notice to Landlord not sooner than nine (9) months nor later
than six (6) months prior to May 31, 2008 (i.e., the then applicable termination
date for the Fifth Expansion Space).
C. Market Rate shall be determined as follows:
(i) If Tenant provides Landlord with its written notice of
exercise pursuant to Subsection B above, then prior to the commencement date of
the applicable Renewal Term Landlord and Tenant shall commence negotiations to
agree upon the Market Rate. If Landlord and Tenant are unable to reach agreement
within twenty-one (21) days, then the Market Rate shall be determined in
accordance with (ii) below.
(ii) If Landlord and Tenant are unable to reach agreement on the
Market Rate within said twenty-one (21) day period, then within seven (7) days,
Landlord and Tenant shall each simultaneously submit to the other in a sealed
envelope its good faith estimate of the Market Rate. If the higher of such
estimates is not more than one hundred five percent (105%) of the lower, then
the Market Rate shall be the average of the two. Otherwise, the dispute shall be
resolved by arbitration in accordance with (iii) below.
(iii) Within seven (7) days after the exchange of estimates, the
parties shall select as an arbitrator an independent MAI appraiser with at least
five (5) years of experience in appraising office space in the metropolitan area
in which the Project is located (a "Qualified Appraiser"). If the parties cannot
agree on a Qualified Appraiser, then within a second period of
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seven (7) days, each shall select a Qualified Appraiser and within ten (10) days
thereafter the two appointed Qualified Appraisers shall select a third Qualified
Appraiser and the third Qualified Appraiser shall be the sole arbitrator. If one
party shall fail to select a Qualified Appraiser within the second seven (7) day
period, then the Qualified Appraiser chosen by the other party shall be the sole
arbitrator.
(iv) Within twenty-one (21) days after submission of the matter to
the arbitrator, the arbitrator shall determine the Market Rate by choosing
whichever of the estimates submitted by Landlord and Tenant the arbitrator
judges to be more accurate. The arbitrator shall notify Landlord and Tenant of
its decision, which shall be final and binding. If the arbitrator believes that
expert advice would materially assist him, the arbitrator may retain one or more
qualified persons to provide expert advice. The fees of the arbitrator and the
expenses of the arbitration proceeding, including the fees of any expert
witnesses retained by the arbitrator, shall be paid by the party whose estimate
is not selected. Each party shall pay the fees of its respective counsel and the
fees of any witness called by that party.
D. Tenant's option to extend is personal to Tenant and may not be
exercised or assigned, voluntarily or involuntarily, by or to any person or
entity other than Tenant without Landlord's prior written consent, which
Landlord may withhold in its sole and absolute discretion. Tenant's option to
extend this Lease is subject to the condition that, on each date that Tenant
delivers its binding notice exercising an option to extend, Tenant is not in
default under this Lease after the expiration of any applicable notice and cure
periods.
9. Future Expansion Right. Provided that Tenant is not then in default in
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the performance of any of its obligations under the Lease (beyond any applicable
notice and cure period) Landlord grants to Tenant the following one-time right
of first negotiation ("Right of First Negotiation") with respect to the space
containing approximately 13,000 rentable square feet located at 0000 Xxxxxx
Xxxx, Xxx Xxxx, Xxxxxxxxxx (the "First Negotiation Space"), provided that if
such space is unavailable because Landlord and the existing tenant in such space
enter into an amendment to extend the term of such tenant's lease for such
space, then Landlord agrees the space containing approximately 13,600 rentable
square feet located at 0000 Xxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx shall
automatically become the First Negotiation Space for purposes of this Section 9.
Notwithstanding any provision herein to the contrary, Tenant agrees and
acknowledges that Landlord shall have the right to enter into an amendment with
any existing tenant of the First Negotiation Space to extend the term of such
tenant's lease for such First Negotiation Space regardless of whether such
tenant's lease contained any renewal or expansion right as of the date of this
Amendment. Subject to the terms and conditions contained in this Section 9,
Tenant shall have the Right of First Negotiation with respect to the First
Negotiation Space if such space becomes available during the Lease Term
(including any extensions thereof). Within ten (10) business days of Tenant's
receipt of Landlord's notice regarding the availability of the First Negotiation
Space ("Landlord's Availability Notice"), Tenant shall respond in writing to
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Landlord of Tenant's interest in leasing the First Negotiation Space. Tenant's
failure to timely respond to Landlord's Availability Notice shall be deemed
Tenant's election to pass on the First Negotiation Space and in such event
Tenant's Right of First Negotiation shall be terminated and have no further
legal force or effect. Landlord's Availability Notice shall
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be in writing and shall include the salient business terms on which Landlord
proposes to lease the First Negotiation Space. In the event Landlord receives
timely written notice from Tenant of its interest in leasing the First
Negotiation Space, then for the twenty (20) day period following Landlord's
receipt of Tenant's notice Landlord and Tenant shall meet, confer and agree in
writing on the terms and conditions upon which Tenant would lease the First
Negotiation Space from Landlord. If Landlord and Tenant are able to agree on the
terms on which Landlord would lease the First Negotiation Space to Tenant during
such twenty (20) day period, Landlord and Tenant shall execute an amendment to
this Lease to incorporate the First Negotiation Space and those terms agreed to
by Landlord and Tenant. However, if Landlord and Tenant are unable to agree in
writing on the terms for the lease of the First Negotiation Space within such
twenty (20) day period (or in the event Tenant passes on such space, or is
deemed to have passed on such space), then Landlord shall be free to market the
First Negotiation Space to any third parties without any liability to Tenant and
Tenant's Right of First Negotiation shall be terminated and have no further
legal force or effect. Landlord and Tenant agree to negotiate in good faith
taking into consideration the rental rates of similar projects in the Geographic
Area of the Project (including the rent, operating costs, and all other monetary
payments that Landlord could obtain for the Expansion Space from a third party
desiring to lease such space, the services provided under the terms of the
Lease, and all other monetary payments then being obtained for new leases of
space comparable to such space), and assuming that the First Negotiation Space
will be used for the highest and best use allowed under the Lease.
Notwithstanding the foregoing, the parties agree that the term of the Lease with
respect to the First Negotiation Space shall expire with the Fifth Expansion
Space Term and shall in no event be less than three years. The Right of First
Negotiation described herein is personal to Tenant and may not be exercised or
assigned, voluntarily or involuntarily, by or to any person or entity other than
Tenant without Landlord's prior written consent, which Landlord may withhold in
its sole and absolute discretion.
10. Surrender of Fifth Expansion Space. Upon the surrender of the Fifth
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Expansion Space at the expiration or earlier termination of this Lease, Landlord
agrees that Tenant is not responsible for removing any improvements to the Fifth
Expansion Space installed by Prior Tenant which were still located in the Fifth
Expansion Space as of the Fifth Expansion Space Commencement Date.
11. Parking. As of the Fifth Expansion Space Commencement Date, Section H
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of the Summary of Basic Lease Terms to the Lease is amended to add an additional
fifty (50) parking stalls, of which forty-seven (47) stalls shall be for
Tenant's nonexclusive use and three (3) stalls near the entrance to the Fifth
Expansion Space which may be marked by Tenant at its sole cost for Tenant's
exclusive use. Subject to any extension pursuant to Section 8, as of August 1,
2004, Section H of the Summary of Basic Lease Terms to the Lease shall be
further amended to provide that Tenant shall only have fifty (50) parking
stalls, of which forty-seven (47) stalls shall be for Tenant's nonexclusive use
and three (3) stalls near the entrance to the Fifth Expansion Space which may be
marked by Tenant at its sole cost for Tenant's exclusive use.
12. Signage. Subject to Section 4.4 of the Lease, Tenant may add its name
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to the existing monument sign for the Building located at 2249 Zanker Road,
subject to Landlord's reasonable
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approval of such signage (including without limitation the content, size and
materials used), which shall not be unreasonably withheld.
13. Landlord's Recapture Right. Section 14,C of the Lease is hereby amended
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to delete the words "for the balance of the Term" and to insert the following
words in their place: "which would terminate at any time during the last six (6)
months of the Lease Term (including on the termination date)".
14. Security Deposit. As of the date of this Amendment, Section M of the
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"Summary of Basic Lease Terms" is amended to increase the amount of the Security
Deposit required hereunder to $141,479.57. Therefore, assuming Landlord is
currently holding a Security Deposit in the amount of $90,739.20, Tenant shall
deposit with Landlord an additional Security Deposit in an amount equal to
$50,740.37 at the time Tenant delivers an executed original of this Amendment to
Landlord. This additional Security Deposit shall be held by Landlord on the same
terms and conditions as the initial Security Deposit in accordance with the
terms of the Lease.
15. Time. Time is of the essence for each and every provision of this
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Amendment.
16. Confirmation of Lease. Except as amended by this Amendment, the parties
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hereby agree and confirm that the Lease is in full force and effect.
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IN WITNESS HEREOF, the parties hereto have executed this Amendment as
of the date first written above.
"Landlord"
CARRAMERICA REALTY CORPORATION,
a Maryland corporation
By: _____________________
Xxxxxx X. Xxxx
Title: President
"Tenant"
PERICOM SEMICONDUCTOR CORPORATION,
a California corporation
By: __________________________
Name: __________________________
Title:__________________________
EXHIBITS:
Exhibit A - Description of Premises and Project
Exhibit B - Tenant Improvement Agreement
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Exhibit A
Description of Premises and Project
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EXHIBIT B
TENANT IMPROVEMENT AGREEMENT
This Tenant Improvement Agreement ("Agreement") is an integral part of the
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Sixth Amendment to Lease dated October 31, 2000 ("Amendment") relating to
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certain Premises described therein. Capitalized terms used in this Agreement not
otherwise defined herein shall have the meaning given such terms in the
Amendment. Landlord and Tenant agree as follows with respect to the Tenant
Improvements, if any, to be installed in the Premises:
1. INITIAL TENANT IMPROVEMENTS.
(a) Plans. Tenant shall cause to be performed the improvements (the
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"Tenant Improvements") in and about the Premises in accordance with plans and
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specifications prepared by Tenant and approved by Landlord (the "Plans"), which
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approvals shall not be unreasonably withheld, delayed or conditioned. Tenant
shall cause the Plans to be prepared, at Tenant's cost, by a registered
professional architect and mechanical and electrical engineer(s), which are
approved, in advance, by the Landlord, provided that Landlord shall not
unreasonably withhold or delay such approval. The Plans (including any changes
thereto) shall be prepared in accordance with any guidelines for such
improvements that Landlord may have at such time. Tenant shall furnish the
initial draft of the Plans to Landlord for Landlord's review and approval which
shall not be unreasonably withheld. After receipt of the initial Plans, Landlord
shall promptly either provide comments to such Plans or approve the same. If
Landlord provides Tenant with comments to the initial draft of the Plans, Tenant
shall provide revised Plans to Landlord incorporating Landlord's comments after
receipt of Landlord's comments. Promptly following Landlord's receipt of such
revised Plans, Landlord shall either provide comments to such revised Plans or
approve such Plans. The process described above shall be repeated, if necessary,
until the Plans have been finally approved by Landlord. Tenant hereby agrees
that the Plans for the Tenant Improvements shall comply with all applicable
Laws. Landlord's approval of the Plans shall be solely for the purposes of
authorizing construction of the Tenant Improvements, and shall not be deemed to
be an approval of the technical merits of the Plans nor a verification that such
Tenant Improvements and/or the Plans comply with applicable Governmental
Requirements. Tenant shall be solely responsible for ensuring that the Tenant
Improvements are designed and constructed in accordance with all applicable
Governmental Requirements.
(b) Construction by Tenant. Tenant shall be solely responsible for the
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construction of the Tenant Improvements in and about the Premises. Tenant shall
construct the Tenant Improvements in accordance with the approved Plans and in
accordance with all rules, regulations, codes, statutes, ordinances and laws of
all government and quasi-governmental authorities and in a good and xxxxxxx-like
manner. Landlord shall have no responsibility whatsoever for the construction of
the Tenant Improvements. The Tenant Improvements shall be constructed with new
materials of good quality and with adequately trained and supervised labor using
currently approved methods of their particular trade.
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(c) Contractor. Prior to commencement of construction, Tenant shall
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select a general contractor which is reasonably acceptable to Landlord
("Contractor") to construct the Tenant Improvements. The Contractor shall be
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licensed by the State of California and bondable. The construction contract
("Construction Contract") for the Tenant Improvements shall be between Tenant
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(not Landlord) and Contractor.
(d) Construction Process. Tenant shall not commence the construction of
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any Tenant Improvements until after Landlord and Tenant have agreed on the
approved Plans and selection of the Contractor. Thereafter, Tenant shall be
responsible for completing the construction of the Tenant Improvements in
accordance with the approved Plans.
(e) Insurance. Prior to Contractor's entry onto the Premises to
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commence construction of the Tenant Improvements, Tenant shall furnish Landlord
with sufficient evidence that Tenant and Contractor are carrying worker's
compensation insurance and general liability insurance in amounts and in the
manner described in the Lease.
(f) Compliance. The Tenant Improvements and all materials incorporated
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therein shall comply with the approved Plans, as may be revised from time to
time pursuant to the terms of this Agreement, and shall be free from all design,
material and workmanship defects. Tenant and Contractor shall comply with all
applicable laws, regulations, permits and other approvals applicable to
construction of the Tenant Improvements.
(g) Liens. Tenant shall defend and indemnify Landlord and hold it
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harmless from any and all claims, losses, demands, judgments, settlements, costs
and expenses, including reasonable attorneys' fees, resulting from any act or
omission of Tenant or anyone claiming by, through, or under Tenant, in
connection with construction of the Tenant Improvements, for any mechanics' lien
or other lien filed against the Premises or any Building or against other
property of Landlord (whether or not the lien is valid or enforceable). Tenant
shall, at its own expense, (i) cause any such liens to be discharged of record,
or (ii) cause to be recorded a bond in compliance with CC Section 3143, within a
reasonable time, not to exceed thirty (30) days, after the later of (a) Tenant's
actual notice of the lien or (b) the date of filing.
(h) Indemnity. Tenant shall indemnify, defend (with counsel reasonably
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satisfactory to Landlord) and hold Landlord harmless from and against any and
all suits, claims, actions, loss, cost or expense (including claims for workers'
compensation, reasonable attorneys' fees and costs) based on personal injury or
property damage caused in, or contract claims (including, but not limited to
claims for breach of warranty) arising from, construction of the Tenant's
Improvements, except to the extent caused by Landlord's acts or omissions.
Tenant shall repair or replace any portion of a Building or item of Landlord's
equipment or any of Landlord's real or personal property damaged, lost or
destroyed in construction of the Tenant Improvements, except to the extent the
damage, loss or destruction is the result of Landlord's acts or omissions.
Notwithstanding the foregoing, in the event Tenant fails to complete such repair
or replacement work within ten (10) days following Tenant's receipt of
Landlord's written notice therefor (or if the nature of such work is such that
more than ten (10) days is required, then in the event Tenant fails to commence
such work within such ten (10) days and thereafter diligently prosecute such
work to completion to the reasonable satisfaction of Landlord), then Landlord
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may (but shall have no obligation to) cause such work to be performed and/or
completed at Tenant's sole cost and expense.
(i) Project Management Fee. Landlord, or an agent of Landlord, shall
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provide project management services in connection with the construction of the
Tenant Improvements and the Change Orders. Such project management services
shall be performed, at Tenant's cost, for a fee (the "Construction Management
Fee") equal to three percent (3%) of all costs incurred in connection with the
preparation of the Plans and the construction of the Tenant Improvements and the
Change Orders, including the costs of any permits and approvals associated
therewith. Tenant shall pay such Construction Management Fee to Landlord within
ten (10) days of Tenant's receipt of Landlord's written invoice for the same. In
the event that Landlord does not receive full payment of the Construction
Management Fee specified in Landlord's invoice within such ten (10) day period,
Landlord reserves the right to pay any unpaid portion of the Construction
Management Fee to itself out of any Tenant Improvement Allowance available
hereunder. Notwithstanding any provision herein the contrary, Tenant agrees and
acknowledges that Landlord shall have the right to retain up to three percent
(3%) of the total Tenant Improvement Allowance until such time as Landlord has
received payment in full of the entire Construction Management Fee payable
hereunder following the completion of the Tenant Improvements and the Change
Orders.
(j) Notices. Tenant shall notify Landlord at least ten (10) business
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days prior to the commencement of construction of any Tenant Improvements and
permit Landlord to post on the Premises such notices of nonresponsibility, and
such other notices to other tenants in the Project, as Landlord may deem
reasonable under the circumstances.
2. CHANGE ORDERS. Tenant shall not make any change to the approved Plans
without Landlord's prior approval, which approval shall not be unreasonably
withheld or delayed; provided, however, that Landlord may withhold its consent
if such requested change would negatively affect the structural components or
exterior appearance of the Buildings. Landlord shall promptly approve or
disapprove any change requests within five (5) business days following
Landlord's receipt of a proposed change request. If Landlord does not approve of
the plans and specifications for the change order request, Landlord shall advise
Tenant of the revisions required. Tenant shall revise and redeliver the plans
and specifications to Landlord within five (5) business days of Landlord's
advice or Tenant shall be deemed to have abandoned its request for such change
order request. Tenant shall pay for all preparations and revisions of plans and
specifications, and the construction of all change order requests, subject to
Tenant Improvement Allowance. All approved change order requests to the approved
Plans shall be in writing and shall be signed by both Landlord and Tenant prior
to the change being made.
3. TENANT IMPROVEMENT ALLOWANCE. A Tenant Improvement Allowance (the
"Tenant Improvement Allowance") of up to $64,440.00 (i.e., $5.00 per square foot
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of the Fifth Expansion Space) shall be made available to Tenant for the
construction of the Tenant Improvements on the terms and conditions set forth
herein. Tenant agrees and acknowledges that the Fifth Expansion Space Base
Monthly Rent shall be increased by $0.0254 per square foot for each $1.00 of the
Tenant Improvement Allowance that is used by Tenant. Thus, if the entire Tenant
Improvement Allowance is used by Tenant, the Fifth Expansion Space Base Monthly
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Rent would be increased by $1,636.78 per month (i.e., $64,440.00 x $0.0254). In
the event any portion of the Tenant Improvement Allowance is used by Tenant,
Landlord and Tenant agree to enter into an amendment to the Lease to reflect
such increase to the Fifth Expansion Space Base Monthly Rent. The Tenant
Improvement Allowance shall be applied against the costs and expenses incurred
in connection with the performance of the Tenant Improvements work, including
the design, permitting, demolition, procurement of supplies and materials,
construction and installation of the Tenant Improvements. The Tenant Improvement
Allowance shall be used for standard interior improvements within the Premises.
None of the Tenant Improvement Allowance shall be used for specialized
improvements, cabling, equipment, trade fixtures, rent or relocation expenses.
Not sooner than the date on which the Tenant Improvements work within the
Premises has been commenced, Tenant may submit invoices to Landlord for payment
out of the Tenant Improvement Allowance to reimburse Tenant or to pay Tenant's
contractor directly (if so requested by Tenant) for Tenant Improvements costs
incurred for work actually performed within the Premises. Following Landlord's
receipt of such invoices, Landlord shall within thirty (30) days thereafter pay
Tenant for the amount requested in such invoice; provided in no event shall
Landlord be obligated to pay Tenant more than the maximum amount of the Tenant
Improvement Allowance. Any expenses incurred by Tenant for the Tenant
Improvements work in excess of the Tenant Improvement Allowance shall be at
Tenant's sole cost and expense. Landlord shall have no obligation to disburse
any portion of the Tenant Improvement Allowance for invoices that are received
by Landlord on or after the sixtieth (60th) day following the Fifth Expansion
Space Commencement Date.
4. COMMENCEMENT DATE DELAY. The Commencement Date shall not be dependent
upon (and shall in no way be affected by delays in) the completion or
substantial completion of the Tenant Improvements.
5. AS-BUILTS. Upon completion of construction of the Tenant Improvements,
Tenant shall deliver to Landlord "as-built" drawings for the completed Tenant
Improvements.
6. Miscellaneous. Terms used in this Exhibit B shall have the meanings
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assigned to them in the Lease. The terms of this Exhibit B are subject to the
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terms of the Lease and all of the covenants, obligations, promises, terms and
conditions of Landlord and Tenant which are contained in the Lease shall apply
during the Term of this agreement (notwithstanding the fact that the
Commencement Date has yet to occur).
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