AMENDMENT NO. 1
TO LEASE
THIS AMENDMENT NO. 1 is made and entered into this 26th day of September,
2001, by and Between XXXX XXXXXXXXX, Trustee, or his Successor Trustee UTA dated
7/20/77 (XXXX XXXXXXXXX SURVIVOR'S TRUST) as amended, and XXXXXXX X. XXXXX,
Trustee, or his Successor Trustee UTA dated 7/20/77 (XXXXXXX X. XXXXX SEPARATE
PROPERTY TRUST) as amended, collectively as LANDLORD, and OPTI, INC., a
California corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated October 5, 2000 Landlord leased to
Tenant approximately 18,463+/- square feet of that certain 38,318+/- square foot
building located at 000 Xxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx, the details of which
are more particularly set forth in said October 5, 2000 Lease Agreement, and
B. WHEREAS, it is now the desire of the parties hereto to amend the Lease
by (i) terminating said Lease early, changing the Lease Termination Date from
December 31, 2005 to October 31, 2002, (ii) confirming the Termination Fee for
the early termination of said Lease, (iii) amending the Basic Rent schedule and
Aggregate Rent of said Lease Agreement, and (iv) providing Landlord with an
option terminate said Lease as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. TERMINATION OF LEASE: Pursuant to Paragraph 48 of said Lease Agreement,
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Tenant has exercised its Option to Terminate the Lease; therefore subject to the
terms and conditions stated herein, the Lease Termination Date shall be changed
from December 31, 2005 to October 31, 2002 ("Termination Date"). Tenant shall be
responsible for relinquishing the Premises in the condition required under Lease
Paragraphs 8 ("Acceptance and Surrender of Premises"), 10 ("Alternations and
Additions") and 44 ("Hazardous Materials"). Prior to the Termination Date,
Landlord and Tenant shall conduct a joint inspection of the Premises to
determine the extent of the work required by Tenant to comply with the
provisions of said Paragraphs 8 and 10 ("Restoration Work"). In lieu of Tenant
completing the required Restoration Work, Tenant agree (i) to pay to Landlord a
fee equal to the total of the estimates received from Landlord's contractors for
the Restoration Work ("Restoration Fee") within ten days after Tenant receives
Landlord's statement of said Restoration Fee and (ii) to either (a) allow
Landlord access to the Premises prior to the Termination date scheduled herein
to enable the Restoration Work to be completed by Landlord by the scheduled
Termination Date or (b) if Tenant is unable to allow Landlord access to the
Premises as stated above, Tenant acknowledges and agrees that the Termination
Date scheduled herein shall be amended to reflect the number of days estimated
for Landlord to complete said Restoration Work following Tenant's scheduled
Lease Termination Date. The amount of time estimated to be allowed for the
completion of the Restoration Work shall be determined by Landlord as soon as
reasonably possible after Landlord and Tenant complete a joint inspection of the
Premises. Tenant shall be responsible for paying all Basic Rent and Addition
Rent and fulfilling all Lease obligations as contained in said Lease through the
Termination Date or the amended Termination Date as the case may be.
Notwithstanding the above, Tenant's obligations as stated in Lease Paragraphs 13
("Taxes"), 19 ("Compliance") and 44 ("Hazardous Materials") shall survive the
Termination Date of this Lease. Tenant's ongoing obligation related to Paragraph
13 ("Taxes") shall include all regularly assessed Real Estate Taxes and any
supplemental taxes related to the period of Tenant's Lease Term whenever levied,
including any such taxes that may be levied after the Termination Date.
2. TERMINATION FEE: As a material part of the consideration for Landlord's
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consent to the early termination of this Lease, and as set forth in Lease
Paragraph 48 ("Tenant's Option to Terminate Lease"), Tenant agrees to pay to
Landlord $150,000.00 ("Termination Fee"). Notwithstanding anything the contrary
in said Paragraph 48, it is agreed between the parties hereto that said
Termination Fee shall be paid by Tenant to Landlord concurrent with Tenant's
execution of this Amendment No. 1.
3. AGGREGATE RENT: The Aggregate Basic Rent for the Lease shall be
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decreased by $4,925,928.40 or from $5,444,738.70 to $518,810.30.
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4. LANDLORD'S OPTION TO TERMINATE LEASE: It is agreed between the parties
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hereto that this Lease Agreement may be terminated by Landlord by giving Tenant
thirty (30) days' written notice of such election to terminate ("Landlord's
Option to Terminate"), in which event this Lease shall terminate and be of no
further force and effect thirty (30) days after the date of Landlord's notice to
Tenant of election to terminate, with Tenant being responsible for the full
performance of all terms, covenants, and conditions herein contained through the
effective date of termination. Notwithstanding the above, Paragraphs 13
("Taxes"), 19 ("Compliance") and 44 ("Hazardous Materials") shall survive the
termination of this Lease. Tenant's ongoing obligation related to Paragraph 13
("Taxes") shall include all regularly assessed Real Estate Taxes and any
supplemental taxes related to the period of Tenant's Lease Term whenever levied,
including any such taxes that may be levied after the Termination Date.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of
said October 5, 2000 Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No.1
to Lease as of the day and year last written below.
LANDLORD: TENANT:
XXXX XXXXXXXXX SURVIVOR'S TRUST OPTI, INC.
a California corporation
By_____________________________ By /s/ Xxxxxxx X. Xxxxxx
Xxxx Xxxxxxxxx, Trustee ----------------------------
Xxxxxxx X. Xxxxxx
Date:__________________________ -------------------------------
Print or Type Name
XXXXXXX X. XXXXX SEPARATE Title: President/CEO
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PROPERTY TRUST
By_____________________________ Date: September 28,2001
Xxxxxxx X. Xxxxx, Trustee -------------------------
Date:__________________________
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