AMENDMENT TO LEASE
AMENDMENT
TO LEASE
THIS
AMENDMENT TO LEASE (this "Amendment") is entered into as of
June 21,
2006
(the "Effective Date") by and between Xxxxxxx X. Xxxxxxxx and
Xxxxx X. Xxxxxxxx Trustees
of the Xxxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx Trust dated December 20, 1995
("Lessor"),
and Southwall Technologies, Inc. ("Lessee") with reference to
the following facts:
A. Lessor
and Lessee entered into that certain Standard Industrial/Commercial
Multi-Lessee Lease - Net dated October 4, 2005 (the "Lease"),
for
the
premises consisting of approximately 7,774 square feet and commonly known as
0000
Xxxxxx Xxx, Xxxx Xxxx, Xxxxxxxxxx as further described in the Lease (the
"Southwall Premises").
B. The
parties desire to amend the Lease on the terms and conditions hereinafter
set forth.
NOW,
THEREFORE, for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto do hereby agree as
follows:
1.
Original
Term:
Section
1.3 of the Lease is hereby amended by deleting "October
31, 2007" and replacing it with June 30, 2011.
2.
Premises:
Effective January 1,2009, Section 1.2(a) of the Lease is hereby amended
to expand the Southwall Premises to include that portion of the building
consisting of approximately
22,400 square feet currently leased from Lessor by Maxspeed Corporation (the
"Maxspeed
Premises") pursuant to that certain Standard Industrial/Commercial
Multi-Lessee Lease - Gross dated December 5, 2003 (the "Maxspeed
Lease"). The Southwall Premises and Maxspeed Premises are collectively
referred
to herein as the "Total Building
Premises"
which shall consist of 30,174 square feet.
3.
Base
Rent:
On
November 1, 2007, the Base Rent
for
the Southwall Premises shall
increase to $8,551.40 per month ($1.10 per square foot). On January 1, 2009,the
Base Rent
for
the Total Building Premises shall increase to $37,717.50 per month ($1.25 per
square) foot).
On
January 1, 2010 and January 1, 2011, the Base Rent shall increase by three
percent (3%).
Lessor
and Lessee acknowledge that effective January 1, 2009, the Total Building
Premises
will be subject to the terms of the Lease, as amended by this Amendment to
Lease, including,
but not limited to the provision that the Total Building Premises will be
governed by the triple net provisions of the Lease.
4.
Lessor's
Work:
As
consideration for Lessee's execution of this Amendment, Lessor
agrees, at its sole cost and expense, to: (a) perform all work necessary to
put
the heating, ventilation
and air conditioning system (including the existing distribution system within
the Total
Building Premises) into good working condition and repair (the "HVAC
Work") and (b) perform
any work required to bring all or any portion of the Total Building Premises
structural components
into compliance with any and all codes, laws, and regulations in effect as
of
the Effective Date (collectively the Code
Compliance Work).
Notwithstanding the foregoing, Lessor
shall have no responsibility for any Code Compliance Work which may be required
because
of any repairs or alterations made by Lessee to the Total Building Premises.
Lessor shall
complete the HVAC Work on or before June 30, 2006 and the Code Compliance Work
within sixty (60) days (or such longer period is necessary given the scope
of
the repairs) of its receipt of notice from Lessee with reasonable supporting
materials describing the Code Compliance
Work required.
5.
Restoration:
Lessor
acknowledges that Lessee shall have no responsibility for any
restoration of the Maxspeed Premises to the condition existing as of the date
of
the Maxspeed
Lease. Notwithstanding the foregoing, Lessee acknowledges that it shall be
responsible
for restoring any improvements it makes to the Maxspeed Premises after the
Effective
Date.
6.
Condition
Precedent:
This
Amendment is conditioned upon (a) Lessee's execution
of a sublease for the Maxspeed Premises pursuant to which Lessee will sublease
the Maxspeed
Premises from June 1, 2006 through December 31, 2008 (the "Sublease");
(b)
Lessee
and
Maxspeed Corporation's receipt of Lessor's written consent to the Sublease,
which such consent
shall be in a form reasonably acceptable to Lessee; and (c) Lessor's written
approval of the Sublease.
7.
Address:
Lessor
acknowledges that Lessee will use the address 0000 Xxxxxx Xxx
for
the Total Building Premises.
8.
Miscellaneous:
a. Ratification.
The
Lease, as amended hereby, is hereby ratified, confirmed
and deemed in full force and effect in accordance with its terms.
b. Governing
Law.
This
Amendment shall be governed by and construed
in accordance with the laws of the State of California.
c. Counterparts.
This
Amendment may be executed in multiple counterparts
each of which is deemed an original but together constitute one and the same
instrument.
This Amendment may be executed by facsimile and each party has the right to
rely
upon a facsimile counterpart of this Amendment signed by the other party to
the
same extent as if
such
party had received an original counterpart.
d. Governing
Document.
Except
as modified by this Amendment, the Lease shall remain unchanged and in full
force and effect. If the terms of the Lease conflict or
are
inconsistent with the terms of this Amendment, the terms of this Amendment
shall
govern and prevail.
e. Brokers.
Each
party represents and warrants to the other that it has not
dealt
with any real estate agent or broker, salesperson, or finder in connection
with
this Amendment other than Colliers International ("Colliers")
(representing Lessor only) and Xxxxxxx, Inc. ("Xxxxxxx")
(representing Lessee only). Lessor shall pay a total commission of six
percent
(6%) payable as set forth hereinafter. Lessor shall pay Xxxxxxx a fee equal
to
four percent
(4%) of the Base Rent payable by Lessee from November 1, 2007 through December
31, 2008 for the Southwall Premises and a fee equal to four percent (4%) of
the
Base Rent payable by
Lessee
from January 1, 2009 through June 30, 2011 for the Total Building Premises
as
required by this Amendment. Lessor shall pay Colliers a fee equal to two percent
(2%) of the Base Rent payable by Lessee from from November 1, 2007 through
December 31, 2008 for the Southwall Premises and a fee equal to two percent
(2%)
of the Base Rent payable by Lessee from January 1, 2009 through June 30, 2011
for the Total Building Premises. Fifty percent (50%) of the above commission
shall be paid on the Effective Date. The other fifty percent (50%) of the above
commission shall be paid on November 1, 2007 for the commission relating to
the
Southwall Premises and on January 1, 2009 for the commission relating to the
Total Building Premises. Each party agrees to indemnify, defend and hold the
other party harmless from
and
against all claims for brokerage commissions, finder's fees or other
compensation made by
any
other agent, broker, salesman or finder as a consequence of said party's actions
or dealings
with such other agent, broker, salesman, or finder. Upon the full execution
and
delivery of
this
Amendment by Lessor and Lessee, Lessor shall pay a real estate commission in
connection with this Amendment to Colliers and Xxxxxxx pursuant to separate
agreement.
f. Entire
Agreement.
The
Amendment represents the entire agreement
of the parties pertaining to the subject matter hereof and replaces any prior
negotiations,
understandings or agreements among the parties, whether written or oral,
pertaining to
subject matter hereof. Each of the parties acknowledges that it has not relied
on any promise, covenant,
representation, or warranty, express or implied, not expressly set forth in
this
Amendment.
IN
WITNESS WHEREOF, the parties hereto have executed these presents the
day
and
year first above written.
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“LESSEE”
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“LESSOR”
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By:
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/s/
Xxxxxx Xxxxxxxx
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By:
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/s/
Xxxxxxx Xxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxx
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Name:
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Xxxxxxx
Xxxxxxxx
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Its:
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VP
of Finance
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Its:
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Xxxxx
Xxxxxxxx
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