FIRST AMENDMENT TO LEASE AND CONSENT TO SUBLEASE
THIS FIRST AMENDMENT TO LEASE AND CONSENT TO SUBLEASE (this "FIRST
AMENDMENT") is made as of this 4th day of April, 2000, by and among CARRAMERICA
REALTY, L.P., a Delaware limited partnership ("LANDLORD"), JAYCOR, INC., a
California corporation ("TENANT"), and JNI CORPORATION, a Delaware corporation
("SUBTENANT").
RECITALS
A. Landlord and Tenant are parties to that certain Lease dated as
of September __, 1998 (the "LEASE"), pursuant to the terms of which Landlord
leased to Tenant and Tenant leased from Landlord the Premises (as defined in the
Lease) located at 0000 Xxxxx Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx. Except as
otherwise defined herein, all capitalized terms used herein shall have the
meanings ascribed to the same in the Lease. References to "THE LEASE" or "THIS
LEASE" in this First Amendment shall mean and refer to the Lease, as amended by
this First Amendment.
B. Tenant desires to sublease to Subtenant a portion of the
Premises (the "SUBLEASED PREMISES") more particularly described in and pursuant
to the provisions of that certain Amended and Restated Sublease Agreement dated
as of February 12, 2000 (the "SUBLEASE"), a copy of which is attached hereto as
EXHIBIT C.
C. Tenant has also requested that Landlord agree to terminate the
Lease.
D. Landlord has agreed to consent to the Sublease and to
terminate the Lease on the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto for themselves, their
successors and assigns, hereby covenant and agree as follows:
1. SURRENDER OF NORTH WING. Subject to the provisions of SECTION
6 below, effective August 31, 2000 (the "NORTH WING EFFECTIVE DATE"), Tenant
shall surrender the three story, approximately 34,592 rentable square foot north
wing of the Premises as more particularly described on EXHIBIT A attached hereto
and incorporated herein (the "NORTH WING") to Landlord and give, grant and
surrender unto Landlord all of Tenant's right, title and interest in and to the
North Wing. Tenant shall surrender the North Wing in the condition required
pursuant to SECTION 3 of the Lease.
2. SURRENDER OF SOUTH WING. Subject to the provisions of
SECTION 6 below, effective April 30, 2001 (the "SOUTH WING EFFECTIVE DATE"),
Tenant and Subtenant shall surrender the balance of the Premises containing
approximately 70,766 rentable square feet as more particularly described on
EXHIBIT B attached hereto and incorporated herein (the "SOUTH WING") to
Landlord and give, grant and surrender unto Landlord all of Tenant's right,
title and interest in and to the South Wing. Landlord and Tenant hereby agree
that, effective on the South Wing Effective Date, the Lease shall terminate
and, except for terms thereof which survive the termination thereof and
hereof,
the Lease shall be of no further force and effect. Tenant shall surrender the
South Wing in the condition required pursuant to SECTION 3 of the Lease.
3. RENT. Without limiting the provisions of SECTION 9 or any
of the terms of the Lease, commencing on the North Wing Effective Date (i)
the Base Rent due under the Lease shall be Base Rent for the South Wing in
the amount of $1.394 per rentable square foot per month until October 31,
2000; thereafter, and continuing until the South Wing Effective Date, Base
Rent shall increase to $1.429 per rentable square foot per month, and (ii)
Tenant shall thereafter be responsible for 67% (and not 100%) of Operating
Costs and Taxes under the Lease. Notwithstanding the foregoing and provided
Tenant's usage of utilities is substantially the same before and after the
North Wing Effective Date, in no event shall Tenant be obligated to pay
utility expenses for the South Wing, as calculated on a per square foot
basis, which exceed the utility expenses, as calculated on a per square foot
basis, that Tenant is obligated to pay before the North Wing Effective Date.
Notwithstanding anything to the contrary contained in the
Lease, Landlord shall have the right at any time, if Landlord so elects, to
remeasure the rentable square footage of the South Wing. The results of any such
remeasurement by Landlord shall be conclusively deemed to be the actual square
footage of the South Wing and Base Rent and Tenant's share of Operating Costs
and Taxes for the South Wing shall be adjusted based on the results of such
remeasurement.
4. ADDITIONAL RENT. In the event any Additional Rent due under
the Lease shall not have been determined as of the South Wing Effective Date,
Tenant shall remain liable for such amount and shall pay the same within
thirty (30) days after the rendition of a xxxx or statement therefor given by
Landlord. This covenant shall survive the termination of the Lease.
Notwithstanding the foregoing, on the date that is eighteen (18) months after
the termination of the Lease, Tenant's obligation to pay any Operating Cost
Rent and Tax Rent for which Landlord did not xxxx Tenant prior to the
expiration of such eighteen (18) month period shall terminate and Tenant
shall not be liable for any such Operating Cost Rent and Tax Rent.
5. TERMINATION FEE. In consideration of the agreements set
forth herein, Tenant shall pay to Landlord a nonrefundable fee in the sum of
One Million One Hundred Fifty Thousand Dollars ($1,150,000) in immediately
available funds as a "LEASE TERMINATION FEE." The Lease Termination Fee shall
be paid as follows: Seven Hundred Thousand Dollars ($700,000) on or before
May 1, 2000, and Four Hundred Fifty Thousand Dollars ($450,000) on or before
January 1, 2001. The Lease Termination Fee shall not be applied towards or
credited against any of Tenant's obligations under the Lease. The obligation
to pay the Lease Termination Fee shall survive the termination of the Lease.
6. NEW LEASE. Landlord and Tenant expressly acknowledge and
agree that this First Amendment, and the termination of the Lease
contemplated herein, shall be subject to the conditions precedent that (i) on
or before March 31, 2000, Landlord shall have entered into a new lease for
the entire Premises with Gateway, Inc., or any of its affiliates ("GATEWAY")
on terms and conditions acceptable to Landlord in its sole and absolute
discretion (the "REPLACEMENT LEASE"), and (ii) on or before April 30, 2000,
Gateway shall have received a duly executed Nondisturbance and
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Attornment Agreement from Union Bank of California in form and content
acceptable to Gateway (the "NONDISTURBANCE AGREEMENT"). In the event that
either (a) Landlord fails to enter into the Replacement Lease on or before
such date (as such date may be extended by Landlord in its sole and absolute
discretion upon written notice to Tenant to a date no later than April 30,
2000), or (b) Gateway fails to receive the Nondisturbance Agreement on or
before April 30, 2000, then the provisions of SECTIONS 1 through 5, 8 and 9
of this First Amendment shall be of no force or effect.
7. USE OF PREMISES. In addition to the uses set forth in SECTION
6 of the Lease, Tenant and Subtenant may conduct light assembly in the
laboratory space on the ground floor of the Premises. Notwithstanding anything
to the contrary contained in the Lease, Tenant shall be responsible for ensuring
that its use of the Premises complies with all Governmental Regulations
applicable to the Project including, without limitation, zoning and other laws,
rules and regulations.
8. CONSTRUCTION. Tenant acknowledges and agrees that, after the
North Wing Effective Date, Landlord intends to commence construction activities
at the Project. The construction activities may include, among other things,
construction of the North Wing, the parking lot, the footbridge and reskinning
the Building. Landlord shall keep Tenant reasonably informed of any such
activities which may impact Tenant including providing Tenant with at least ten
(10) days written notice of any anticipated power or utility interruptions as a
result of such construction. Any disturbance caused by such construction will be
considered part of the consideration for this First Amendment; provided that
Landlord shall use its best efforts, without any obligation to incur increased
construction costs or to cause the construction to be performed after normal
working hours, to minimize any disturbance to Tenant from such construction.
Landlord shall remove all construction debris on a daily basis and shall keep
the construction area in as clean and safe condition as possible given such
construction. Representatives from Landlord will be available to meet with
Tenant on a weekly basis to discuss the progress of the construction and any
concerns that Tenant may have regarding such construction.
9. HOLDOVER. Tenant acknowledges and agrees that time is of the
essence in connection with Tenant's compliance with its obligations under
SECTIONS 1 and 2 of this First Amendment. Notwithstanding anything to the
contrary contained in the Lease, if Tenant retains possession of any part of the
North Wing after the North Wing Effective Date or the South Wing after the South
Wing Effective Date, Tenant shall become a tenant at sufferance upon all the
terms of the Lease as might be applicable, except that Tenant shall pay all Base
Rent, Operating Cost Rent and Tax Rent at 200% of the rate in effect
immediately prior to such holdover (or the rate that would be in effect if the
Lease term were then in effect, whichever is greater), computed on a monthly
basis for each full or partial month Tenant remains in possession. Tenant shall
also pay Landlord all of Landlord's direct, indirect and consequential damages
incurred as a result of such holdover by Tenant, including, without limitation,
any damages, costs or amounts incurred by Landlord in connection with the
Replacement Lease.
10. ASSIGNMENT. Except for the Sublease, Tenant represents and
warrants that Tenant has not assigned, mortgaged, pledged, encumbered or
otherwise transferred any interest in the Lease.
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11. CONSENT. Landlord consents to the Sublease subject to the
following conditions:
(a) Landlord neither approves nor disapproves the terms,
conditions and agreements contained in the Sublease, all of which shall be
subordinate and at all times subject to (i) all of the covenants, agreements,
terms, provisions and conditions contained in the Lease, (ii) superior ground
leases, mortgages, deeds of trust, or any other hypothecation or security now
existing or hereafter placed upon the real property of which the Premises are a
part and to any and all advances secured thereby and to all renewals,
modifications, consolidations, replacements and extensions thereof, and (iii)
all matters of record affecting the Premises and all laws, ordinances and
regulations now or hereafter affecting the Premises.
(b) Except as otherwise provided in this First Amendment, nothing
contained herein or in the Sublease shall be construed to modify, waive, impair,
or affect any of the terms, covenants or conditions contained in the Lease
(including Tenant's obligation to obtain any required consents for any other or
future sublettings), or to waive any breach thereof, or any rights or remedies
of Landlord under the Lease against any person, firm, association or corporation
liable for the performance thereof, or to enlarge or increase Landlord's
obligations or liabilities under the Lease (including, without limitation, any
liability to Subtenant for any portion of the security deposit held by Tenant
under the Sublease), and all terms, covenants and conditions of the Lease are
hereby declared by each of Landlord and Tenant to be in full force and effect.
(c) Nothing contained herein or in the Sublease shall be construed
to require Landlord to accept any payments from Subtenant on behalf of Tenant.
(d) Nothing contained herein or in the Sublease shall be construed
to be Landlord's consent to any other subletting between Tenant and Subtenant,
or consent to any extension of the term of the Sublease.
(e) Tenant shall remain liable and responsible for the due
keeping, performance and observance of all the terms, covenants and conditions
set forth in the Lease on the part of the Tenant to be kept, performed and
observed and for the payment of the annual rent, additional rent and all other
sums now and hereafter becoming payable thereunder for all of the Premises,
including, without limitation, the Subleased Premises.
(f) Notwithstanding anything in the Sublease to the contrary,
Subtenant does hereby expressly assume and agree to be bound by and to perform
and comply with, for the benefit of Landlord, each and every obligation of
Tenant under the Lease to the extent applicable to the Subleased Premises. With
respect to property insurance, Landlord and Subtenant mutually waive all rights
of subrogation, and the respective "All-Risk" coverage property insurance
policies carried by Landlord and Subtenant shall contain enforceable waiver of
subrogation endorsements.
(g) Notwithstanding anything in the Sublease to the contrary,
Tenant and Subtenant agree to each of the terms and conditions of this First
Amendment, and upon any conflict between the terms of the Sublease and this
First Amendment, the terms of this First Amendment shall control.
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(h) Notwithstanding anything in the Sublease to the contrary, the
Sublease shall be deemed and agreed to be a sublease only and not an assignment
and there shall be no further subletting or assignment of all or any portion of
the Premises demised under the Lease (including the Subleased Premises demised
by the Sublease) except in accordance with the terms and conditions of the
Lease.
(i) Tenant and Subtenant acknowledge and agree that if Tenant or
Landlord elects to terminate the Lease pursuant to the terms thereof or this
First Amendment, Landlord shall have no responsibility, liability or obligation
to Subtenant, and the Sublease shall terminate.
(j) Any act or omission of Subtenant or anyone claiming under or
through Subtenant that violates any of the provisions of the Lease shall be
deemed a violation of the Lease by Tenant.
(k) Upon a default by Tenant under the Lease, Landlord may proceed
directly against Tenant, any guarantors or anyone else liable under the Lease or
Sublease without first exhausting Landlord's remedies against any other person
or entity liable thereon to Landlord. If Landlord gives Subtenant notice that
Tenant is in default under the Lease, Subtenant shall thereafter make directly
to Landlord all payments otherwise due Tenant, which payments will be received
by Landlord without any liability to Landlord except to credit such payments
against amounts due under the Lease. The mention in this First Amendment of any
particular remedy shall not preclude Landlord from any other remedy in law or in
equity.
(l) Tenant shall pay any broker commissions or fees that may be
payable as a result of the Sublease and Tenant hereby indemnifies and agrees to
hold Landlord harmless from and against any loss or liability arising therefrom
or from any other commissions or fees payable in connection with the Sublease
which result from the actions of Tenant. Subtenant hereby indemnifies and agrees
to hold Landlord harmless from and against any loss or liability arising from
any commissions or fees payable in connection with the Sublease which result
from the actions of Subtenant.
(m) Tenant and Subtenant agree that the Sublease will not be
modified or amended in any way without the prior written consent of Landlord,
which consent shall not be unreasonably withheld or delayed. Tenant and
Subtenant hereby agree that it shall be reasonable for Landlord to withhold its
consent to any modification or amendment of the Sublease which would change the
permitted use of the Subleased Premises. Any modification or amendment of the
Sublease without Landlord's prior written consent shall be void and of no force
or effect.
12. EFFECT OF THIS FIRST AMENDMENT. Except as amended and/or
modified by this First Amendment, the Lease is hereby ratified and confirmed
and all other terms of the Lease shall remain in full force and effect,
unaltered and unchanged by this First Amendment. In the event of any conflict
between the provisions of this First Amendment and the provisions of the
Lease, the provisions of this First Amendment shall prevail. Whether or not
specifically amended by this First Amendment, all of the terms and provisions
of the Lease are hereby amended to the extent necessary to give effect to the
purpose and intent of this First Amendment.
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13. MISCELLANEOUS. All obligations of Tenant under the Lease
which by the terms of the Lease survive the termination of the Lease and,
subject to the eighteen (18) month limitation contained in SECTION 4 of this
First Amendment with respect to Operating Cost Rent and Tax Rent, the
obligation to pay Additional Rent as set forth in SECTION 4 of this First
Amendment shall survive the North Wing Effective Date and South Wing
Effective Date until fully performed by Tenant in accordance with the terms
of the Lease and this First Amendment. Any notice given under this First
Amendment shall be delivered in accordance with the provisions for the giving
of notice in the Lease. This First Amendment contains all of the agreements
of the parties hereto with respect to termination of the Lease as provided
herein, and no prior agreement, arrangement or understanding pertaining to
termination of the Lease shall be effective for any purpose. This First
Amendment shall inure to the benefit of and shall be binding upon the parties
and their respective successors and assigns. The parties agree to execute
such other documents and perform such other acts as may be reasonably
necessary or desirable to effectuate the intent and purpose of this First
Amendment. This First Amendment shall be governed by and construed in
accordance with the laws of the State of California. Each of the parties to
this First Amendment represents and warrants that it is duly authorized to
execute and deliver this First Amendment and that this First Amendment does
not constitute a violation or breach of any agreement or instrument
heretofore executed by such party. This First Amendment may be executed in
counterparts, each of which shall constitute an original, but which taken
together shall constitute one and the same instrument.
[Signatures are on the next page.]
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IN WITNESS WHEREOF, the parties hereto have duly executed this First
Amendment the date and year first above written.
Landlord:
CARRAMERICA REALTY, L.P.,
a Delaware limited partnership
By: CarrAmerica Realty GP Holdings, Inc.,
a Delaware corporation,
its general partner
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------
Title: Executive Vice President
-------------------------------
Tenant:
JAYCOR, INC.,
a California corporation
By: Xxxx X. Xxxxxx
--------------------------------------
Name: /s/ Xxxx X. Xxxxxx
------------------------------------
Title: President and CEO
-----------------------------------
Subtenant:
JNI CORPORATION,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxxx
------------------------------------
Title: COO
-----------------------------------
Guarantor acknowledges and agrees to the terms of this First Amendment and
reaffirms its obligations under that certain Guaranty of Lease dated September
29, 1998. Executed as of the date and year first above written.
JAYMARK, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
---------------------------------
Title: Chief Financial Officer
--------------------------------
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EXHIBIT A
NORTH WING
[ATTACHED]
[Floor Plan of North Wing]
[Floor Plan of North Wing]
[Floor Plan of North Wing]
EXHIBIT B
SOUTH WING
[ATTACHED]
[Floor Plan of South Wing]
[Floor Plan of South Wing]
[Floor Plan of South Wing]
