FIRST AMENDMENT TO LEASE
Exhibit 10.11
FIRST
AMENDMENT TO LEASE
This FIRST AMENDMENT TO LEASE (“First
Amendment”) is made and entered into as of
September 10, 2010, by and between MACARTHUR, L.P., a
Delaware limited partnership (“Landlord”), and
MINDSPEED TECHNOLOGIES, INC., a Delaware corporation
(“Tenant”).
RECITALS:
A. Landlord and Tenant entered into that certain Lease
(“Lease”), dated March 23, 2010, pursuant
to which Landlord currently leases to Tenant and Tenant
currently leases from Landlord approximately
96,829 rentable square feet of space (the “Existing
Premises”) consisting of (i) a portion of the
first (1st) floor, (ii) a portion of the second (2nd)
floor, (iii) the entire third (3rd) floor, (iv) the
entire seventh (7th) floor, (v) the entire eighth (8th)
floor, and (vi) the entire tenth (10th) floor of the
building commonly known as the East Tower (the
“Building”) located at 0000 XxxXxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000.
B. Tenant desires to expand the Existing Premises to
include that certain space comprised of 294 rentable square
feet of space (the “Expansion Premises”)
located on the first (1st) floor of the Building, as delineated
on Exhibit A, attached hereto and made a part
hereof, and to otherwise amend the Lease, on the terms and
conditions contained herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and
the mutual covenants contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. Capitalized Terms. Each
capitalized term when used herein shall have the same respective
meaning as is given such term in the Lease unless expressly
provided otherwise in this First Amendment.
2. As-Is Condition of Expansion
Premises. Tenant hereby agrees that Tenant
shall accept the Expansion Premises in its presently existing,
“as-is” condition, and Landlord shall not be obligated
to provide or pay for any improvement work or services related
to the improvement of the Expansion Premises. Tenant also
acknowledges that neither Landlord nor any agent of Landlord has
made any representation or warranty regarding the condition of
the Expansion Premises or the Building or with respect to the
suitability of any of the foregoing for the conduct of
Tenant’s business.
3. Expansion of Existing
Premises. Subject to the terms of this First
Amendment, effective as of September 15, 2010 (the
“Expansion Commencement Date”), Tenant shall
lease from Landlord and Landlord shall lease to Tenant the
Expansion Premises. Consequently, effective upon the Expansion
Commencement Date, the Existing Premises shall be increased to
include the Expansion Premises. Landlord and Tenant acknowledge
and agree that the Expansion Premises shall be deemed to contain
the rentable square footage set forth in Recital B of
this First Amendment (and shall not be subject to remeasurement
or modification during the Expansion Term (defined in
Section 4 below)), and accordingly, such addition of
the Expansion Premises to the Existing Premises shall, effective
as of the Expansion Commencement Date, increase the size of the
“Premises” to 97,123 rentable square feet of
space. Except as otherwise specifically provided in this First
Amendment, all references in the Lease and this First Amendment
to the term “Premises” shall include the Existing
Premises and the Expansion Premises.
4. Expansion Term. Notwithstanding
anything to the contrary contained in the Lease, the term of
Tenant’s lease of the Expansion Premises (the
“Expansion Term”) shall commence on the
Expansion Commencement Date and expire coterminously with the
Term on the Expiration Date (i.e., December 31, 2012, or
the last day of any renewal or extended term, if the Term of the
Lease is extended in accordance with any express provisions of
the Lease), unless sooner terminated as provided in the Lease,
as amended.
5. Fixed Rent.
5.1. Existing Premises. Tenant
shall continue to pay to Landlord Fixed Rent for the Existing
Premises through the Expiration Date in accordance with the
terms and conditions of the Lease.
5.2. Expansion
Premises. Commencing on the Expansion
Commencement Date and continuing throughout the Expansion Term,
Tenant shall pay to Landlord monthly installments of Fixed Rent
for the Expansion Premises in an amount equal to $536.20 (i.e.,
1.8238 per rentable square foot of the Expansion Premises), but
otherwise in accordance with the terms of the Lease. On or prior
to the Expansion Commencement Date, Tenant shall pay to Landlord
the Fixed Rent payable for the Expansion Premises for the
partial month of September and full month of October 2010 (i.e.,
$822.17).
6. Operating Expenses and Taxes.
6.1. Existing Premises. Tenant
shall continue to pay to Landlord Tenant’s Proportionate
Share of Operating Expenses and Taxes for the Existing Premises
through the Expiration Date in accordance with the terms and
conditions of Lease.
6.2. Expansion
Premises. Commencing as of the Expansion
Commencement Date, and continuing throughout the Expansion Term,
Tenant shall pay to Landlord Tenant’s Proportionate Share
of Operating Expenses and Taxes for the Expansion Premises in
accordance with the terms of the Lease; provided that,
notwithstanding any provision to the contrary contained in the
Lease, solely with respect to the determination of Tenant’s
Proportionate Share of Operating Expenses and Taxes for the
Expansion Premises, Tenant’s Proportionate Share shall
equal 0.1522%.
7. Alterations. Any Alterations
made to the Expansion Premises shall be completed in accordance
with the terms of Article 5 of the Lease.
Notwithstanding the foregoing or any provision to the contrary
set forth in the Lease, Landlord shall have the right, in its
sole and absolute discretion, to withhold its consent to any
Alteration to the Expansion Premises that affects Conexant
Systems, Inc.’s (“Conexant”) access to the
premises that Conexant is leasing in the West Tower of 0000
XxxXxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx.
8. Limitation on
Liability. Notwithstanding any provision to
the contrary contained in the Lease, Landlord and Tenant
acknowledge and agree that the liability of Landlord for
Landlord’s obligations under the Lease, as amended, and any
other documents executed by Landlord and Tenant in connection
with the Lease (collectively, the “Lease
Documents”) shall be limited to Landlord’s
interest in the Project (including any rents and all sale,
financing, insurance or condemnation proceeds thereof) and
Tenant shall not look to any other property or assets of
Landlord or the property or assets of any direct or indirect
partner, member, manager, shareholder, director, officer,
principal, employee or agent of Landlord (collectively, the
“Landlord Parties”) in seeking either to
enforce Landlord’s obligations under the Lease Documents or
to satisfy a judgment for Landlord’s failure to perform
such obligations; and none of the Landlord Parties shall be
personally liable for the performance of Landlord’s
obligations under the Lease Documents. In no event shall
Landlord or the Landlord Parties be liable for, and Tenant, on
behalf of itself and all other subtenants or occupants of the
Premises and their respective agents, contractors,
subcontractors, employees, invitees or licensees, hereby waives
any claim for, any indirect, consequential or punitive damages,
including loss of profits or business opportunity, arising under
or in connection with the Lease Documents. Landlord shall not
look to Tenant’s direct or indirect partners, members,
managers, shareholders, directors, officers, principals,
employees or agents in seeking to enforce Tenant’s
obligations under the Lease Documents or to satisfy a judgment
for Tenant’s failure to perform such obligations; and none
of such parties shall be personally liable for the performance
of Tenant’s obligations under the Lease Documents.
9. Tax Status of Beneficial
Owner. The terms of Section 26.21 of the
Lease shall continue to apply to the Lease, as amended.
10. Brokers. Landlord and Tenant
hereby warrant to each other that they have had no dealings with
any real estate broker or agent in connection with the
negotiation of this First Amendment, and that they know of no
real estate broker or agent who is entitled to a commission in
connection with this First Amendment. Each party agrees to
indemnify and defend the other party against and hold the other
party harmless from any and all claims, demands,
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losses, liabilities, lawsuits, judgments, and costs and expenses
(including, without limitation, reasonable attorneys’ fees)
with respect to any leasing commission or equivalent
compensation alleged to be owing on account of the indemnifying
party’s dealings with any real estate broker or agent. The
terms of this Section 10 shall survive the
expiration or earlier termination of the Expansion Term.
11. Conflict; No Further
Modification. In the event of any conflict
between the Lease and this First Amendment, the terms and
provisions of this First Amendment shall prevail. Except as
specifically set forth in this First Amendment, all of the terms
and provisions of the Lease shall remain unmodified and in full
force and effect.
[SIGNATURES
APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, this First Amendment has been executed as of
the day and year first above written.
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“Landlord”:
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“Tenant”: | |
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4000 MACARTHUR, L.P.,
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MINDSPEED TECHNOLOGIES, INC., | |
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a Delaware limited partnership
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a Delaware corporation | |
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By:
/s/ Xxxxxxx
X. Xxxxxx |
By: /s/ Xxxx
X. Xxxxxxx |
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Name: Xxxxxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxxx | |
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Title: Vice President and Secretary
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Title: Chief Financial Officer | |
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By:
/s/ Xxxxxx
X. Xxxxxx |
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| Name: Xxxxxx X. Xxxxxx | ||
| Title: Vice President, Legal |
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EXHIBIT A
OUTLINE OF EXPANSION PREMISES
The floor plan which follows is intended solely to identify the
general location of the Expansion Premises, and should not be
used for any other purpose. All areas, dimensions and locations
are approximate, and any physical conditions indicated may not
exist as shown.
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