Exhibit 10.8
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (hereinafter "Amendment") is made upon this
30th day of June 2000, by and between XxXXXXXXXX PROPERTIES, a California
limited partnership (Landlord") and MONOLITHIC SYSTEM TECHNOLOGY, INC., a
California corporation ("Tenant").
RECITALS
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A. Tenant currently leases from Landlord approximately eight thousand
(8,000) square feet of space located at 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx (the
"Initial Premises") pursuant to that certain lease dated September 24, 1996
("Lease"). The Initial Premises are shown on Exhibits A and B attached hereto.
B. Tenant desires to expand the Premises by adding approximately eleven
thousand five hundred (11,500) square feet of additional space located at 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx (the "Expansion Space"). The Expansion Space is shown
on Exhibits A and C attached hereto .
C. Tenant desires to extend the term of the Lease.
D. Landlord is willing to so extend the term and to so expand the Premises
on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants and agreements contained herein and other good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
1. PREMISES. Commencing on July 1, 2000, the Expansion Space shall be added
to the Initial Premises and, thereafter, the total area leased shall be
increased from approximately eight thousand (8,000) square feet to approximately
nineteen thousand five hundred (19,500) square feet.
2. TERM. The term of the Lease is for the entire Premises, as expanded, is
hereby extended to, and shall include, June 30, 2005. The period commencing on
July 1, 2000 and ending on June 30, 2005 is referred to herein as the Second
Extended Term.
3. BASIC RENT. Paragraphs 4 (a)and 5 of the Lease are hereby amended to
provide that as of July 1, 2000 the amount of basic rent due and payable under
the Lease shall be as set forth below:
July 1, 2000 until October 31, 2000 $48,575.00/mo.
November 1, 2000 until June 30, 2001 $48,975.00/mo.
July 1, 2001 until October 31, 2001 $50,844.00/mo.
November 1, 2001 until June 30, 2002 $66,544.00/mo.
July 1, 2002 until June 30, 2003 $69,820.00/mo.
July 1, 2003 until June 30, 2004 $73,301.00/mo.
July 1, 2004 until June 30, 2005 $76,986.00/mo.
The above basic monthly rent calculations are predicated on basic rent of
$3.25 per square foot per month triple net as of July 1, 2000 for the Expansion
Space with five percent (5%) annual increases thereafter and basic rent of $3.41
per square foot per month triple net as of November 1, 2001 for the Initial
Premises from November 1, 2001 until June 30, 2002 with five percent (5%) annual
increases thereafter. A spreadsheet showing the calculations and totals of basic
rent for each month is attached hereto as Exhibit D.
4. COMMON AREA CHARGES. Commencing on the July 1, 2000, Tenant's
proportionate share of common area charges as set forth in paragraph 16 of the
Lease shall be increased from 40.03% to 100%.
5. SECURITY DEPOSIT. Commencing on the July 1, 2000, Tenant shall deposit
with Landlord the sum of Twenty Six Thousand Eight Hundred and 00/100 Dollars
($26,800.00), which sum shall be held by Landlord as additional security deposit
under the terms described in paragraph 4 (e) of the Lease. Tenant's total
security deposit held by Landlord therefore shall be increased as of July 1,
2000 from Twenty Three Thousand Two Hundred and 00/100 Dollars ($23,200) to
Fifty Thousand and 00/100 Dollars ($50,000.00). Such security deposit shall not
be reduced by means of a rent credit or any other means and Tenant hereby waives
any further security deposit reductions as provided for in paragraph 4 (e)of the
Lease.
6. PARKING. Commencing on the Effective Date, Tenant's right to the
non-exclusive use of the parking spaces, as defined in paragraph 15 of the
Lease, shall be increased to sixty-eight (68) spaces.
7. EXPANSION SPACE TAKEN "AS IS". Tenant is leasing the Premises from
Landlord "as is" in its existing condition as of the date hereof. Landlord shall
have no obligation to alter or improve the Premises except only to clean the
Premises as reasonably necessary.
Tenant acknowledges that, except as expressly contained in this lease,
neither Landlord nor anyone acting for or on behalf of Landlord has made any
representation, warranty or promise to Tenant concerning the physical aspects or
condition of any of the Project; the feasibility, desirability or convertibility
of any of the Project into any particular use; the zoning, building or land use
restrictions applicable to the zoning, building or land use restrictions
applicable to the Project; the projected income or expenses for any of the
Project or any business conducted thereon; the suitability of the Project for
any particular use; or the presence or absence of any Hazardous Materials; and
that in entering into this lease, Tenant has not relied upon any representation,
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statement or warranty of Landlord or anyone acting for or on behalf of Landlord,
other than as expressly contained in this lease, and that all matters concerning
the Premises shall be independently verified by Tenant and that Tenant shall
enter into this lease on Tenant's own examination thereof (or Tenant's election
not to do so). Tenant does hereby waive, and Landlord does hereby disclaim, all
warranties of any type or kind whatsoever with respect to the Project, express
or implied, including by way of description, but not limitation, those of
fitness for a particular purpose, tenantability, habitability and use. Tenant
hereby expressly assumes the risk that adverse physical conditions and the full
extent thereof (including, without limitation, soil, groundwater and surface
water contamination and air pollution from Hazardous Materials) may not be
revealed by Tenant's inspections, reviews and studies of the Project prior to
the date of possession.
No person acting on behalf of Landlord is authorized to make, and by
execution hereof Tenant acknowledges that no such person has made, any
representation, warranty, guaranty or promise except as may be expressly set
forth herein; and no agreement, statement, representation, guaranty or promise
made by any such person which is not expressly contained herein shall be valid
or binding on Landlord and Landlord's agents, heirs, successors or assigns. The
only representations or warranties outstanding with respect to the Project, or
Landlord, either express or implied by law, are expressly set forth herein.
Tenant acknowledges that any and all documentary information, soil reports,
environmental audits, site assessments, analyses or reports, insurance policies
or other information of whatever type which Tenant has received or may receive
from Landlord or Landlord's agents is furnished on the express condition that
Tenant shall make Tenant's own independent verification of the accuracy and
completeness of such information. Tenant agrees that Tenant shall not attempt to
assert any liability upon Landlord or Landlord's agents for furnishing such
information and Tenant does hereby release Landlord and Landlord's agents,
heirs, successors and assigns free and harmless from and against, any and all
such claims or liability.
8. ENVIRONMENTAL MATTERS.
A. TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS.
(1) Without limiting Tenant's obligations under paragraph 7 of
the Lease, Tenant shall comply with and shall cause the Project to comply with,
all federal, state, and local laws, statutes, rules, regulations, codes,
ordinances, and other governmental requirements (including, without limitation,
permits, licenses, consent decrees and administrative orders)now or hereafter in
effect relating or pertaining in any way to (i) human health, safety or
protection, (ii) workplace safety, (iii) industrial hygiene, (iv) the use,
generation, handling, maintenance, treatment, removal, transportation, storage,
release, discharge, disposal, or disclosure of Hazardous Materials, or (v) the
protection or regulation of the environment, all as amended and modified from
time to time (collectively, "Environmental Requirements"). Tenant shall cause
all governmental permits and other approvals relating to the use or operation of
the Project required by applicable Environmental Requirements or any other
applicable laws to all times remain in effect, and Tenant shall at all times
comply with such permits and other approvals.
(2) Tenant shall not cause, or permit to occur, any release,
discharge, use, generation, manufacture, storage, treatment, transportation, or
disposal by Tenant or any of its
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employees, agents, contractors, visitors, clients, customers, sublessees,
assignees, successors, licensees or invitees, of any Hazardous Materials on, in,
under, about, or from the Premises or any other part of the Project. However,
notwithstanding the foregoing, Tenant may use on the Premises, without
Landlord's prior written consent, but only upon written notice to Landlord and
in compliance with all Environmental Requirements and other applicable laws, any
ordinary and customary materials reasonably required for use by Tenant in the
normal course of the permitted use described in paragraph 1 hereof and further,
but only so long as such use is not a Reportable Use (defined below)and does not
expose the Premises or any other part of the Project or neighboring properties
to any meaningful risk of contamination or damage or expose Landlord to any
liability whatsoever therefor. In addition, Landlord may (but without any
obligation to do so) condition its consent to any Reportable Use of any
Hazardous Materials by Tenant upon Tenant's giving Landlord such additional
assurances as Landlord in its sole discretion, deems necessary to protect
itself, the public, the Premises, the Project, and the environment against
damage, contamination or injury and/or liability therefor, including but not
limited to the installation (and, at Landlord's option, removal on or before the
expiration or earlier termination of this lease) of reasonably necessary
protective modifications to the Premises (such as concrete encasement) and/or
the deposit of an additional security deposit. As used herein, "Reportable Use"
shall mean (i) the installation or use of any above or below ground storage
tank, (ii) the release, generation, possession, storage, use, transportation,
discharge or disposal of any Hazardous Materials that requires a permit from, or
with respect to which a report, notice, registration or business plan is
required to be filed with, any governmental agency or authority, and (iii) the
presence in, on or about the Premises, the Project of any Hazardous Materials
with respect to which any Environmental Requirements or other applicable laws
require that a notice be given to persons entering or occupying the Premises,
the Project or neighboring properties.
(3) If Tenant knows, or has reasonable cause to believe, that any
Hazardous Materials have come to be located in, on, under or about the Premises
or the Project (other than those Hazardous Materials that have come to be
located beneath and/or in the vicinity of the Project prior to the date of this
lease and other than those Hazardous Materials as previously consented to by
Landlord in writing, if any), to by Landlord, Tenant shall immediately give
Landlord written notice thereof, together with a copy of any statement, report,
notice, registration, application, permit, business plan, license, claim,
action, or proceeding, given to, or received from, any governmental authority or
private party concerning the presence, spill, release, discharge of, or exposure
to, such Hazardous Materials including but not limited to all such documents as
may be involved in any Reportable Use involving the Premises or the Project.
Landlord's receipt of any notice, documents or other information from Tenant as
provided above in this paragraph shall not create any obligation on the part of
Landlord to respond in any way to such notice, documents or information or the
conditions described therein.
(4) Tenant shall immediately notify Landlord and provide copies
upon receipt of all written complaints, claims, citations, demands, inquiries,
reports, or notices relating to the condition of the Premises or compliance with
Environmental Requirements (provided, however, that Landlord's receipt of any of
the foregoing shall in no way create or impose any duty or obligation upon
Landlord to respond thereto. Tenant shall promptly cure and have dismissed with
prejudice any of those actions and proceedings to the satisfaction of Landlord.
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(5) Landlord, its agents, employees, contractors and designated
representatives, and the holders of any mortgages, deeds of trust or ground
leases on the Premises or Project shall have the right, but not the obligation,
to enter the Premises at any time in the case of an emergency, and otherwise at
reasonable times, for the purpose of inspecting the condition of the Premises
and for verifying compliance by Tenant with this lease (including compliance
with Environmental Requirements)and Landlord shall be entitled to employ experts
and/or consultants in connection therewith to advise Landlord with respect to
Tenant's activities, including but not limited to Tenant's use, storage,
handling, transportation, maintenance, or removal of any Hazardous Materials on
or from the Premises. The costs and expenses of any such inspections shall be
paid by the party requesting same, unless a default or breach of this lease by
Tenant or a violation of any Environmental Requirement or a contamination caused
or materially contributed to by the Tenant is found to exist or to be imminent ,
or unless the inspection is requested or ordered by a governmental agency or
authority as the result of any such existing or imminent violation or
contamination, in such case, Tenant shall upon request reimburse Landlord, for
the costs and expenses of such inspections.
(6) If Tenant breaches any of its warranties, representations, or
covenants under this paragraph 8, Landlord may, without obligation, cause the
removal (or other cleanup or other response acceptable to Landlord) of any
Hazardous Materials from the Project, and the costs of any Hazardous Materials
removal, remediation, detoxification, or other response (including, without
limitation, disposal, transportation and storage costs and all costs of
refitting or otherwise altering the Premises or any other part of the Project
shall be covered by the indemnity in paragraph 8B, below, whether or not a court
or other governmental authority has ordered such removal, remediation,
detoxification or other response and those costs shall become due and payable on
demand by Landlord. Tenant shall give Landlord, its agents, contractors, and
employees access to the Premises to remove, remediate, detoxify, clean up or
otherwise respond to any Hazardous Materials, and this lease shall not be
construed as creating any such obligation.
B. INDEMNIFICATION OF LANDLORD. Tenant agrees to indemnify, defend
(with counsel acceptable to Landlord and at Tenant's sole cost), and hold
Landlord and Landlord's partners, employees, agents, attorneys, successors and
assigns free and harmless from and against any and all losses, liabilities,
obligations, penalties, claims, litigation, orders, demands, defenses, costs,
judgments, suits, penalties, proceedings, damages (including, without
limitation, consequential damages, diminution of the value of the Premises or
Project, disbursements, losses, or expenses of any kind (including, without
limitation, attorneys' and experts' fees and expenses incurred in investigating,
defending, or prosecuting any litigation, claim, or proceeding) that may at any
time be imposed upon, suffered by, incurred by, or asserted or awarded against
Landlord or any of its partners, employees, agents, attorneys, successors or
assigns in connection with or arising directly or indirectly out of:
(1) Any release, threatened release, discharge, handling, use,
storage, presence, transportation, or disposal of any Hazardous Materials
(whether or not the use thereof is a Reportable Use or has been consented to by
Landlord on, in, under, or affecting all or any part of the Premises or Project
which is (or are) attributable, in whole or in part, directly or indirectly, to
any act or omission of Tenant or any employee, agent, contractor, visitor,
client, customer, sublessee, assignee, successor, licensee or invitee of Tenant;
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(2) Any misrepresentation, inaccuracy, or breach of any warranty,
covenant, or agreement contained or referred to in this paragraph 8;
(3) Any failure by Tenant or any employee, agent, contractor,
visitor, customer, sublessee, assignee, successor, client, licensee or invitee
of Tenant to comply with any Environmental Requirement or other applicable law,
whether such failure was made knowingly or unknowingly or intentionally or
unintentionally.
This indemnification is the personal obligation of Tenant and shall
survive the expiration or sooner termination of this lease. Tenant, its
successors, and assigns waive, release, and agree not to make any claim or
bring any cost recovery action against Landlord under the Comprehensive
Environmental Response, Compensation and Liability Act, as amended and
reauthorized to date (42 U.S.C. Sections 9601 et seq.) ("CERCLA"), or any
state equivalent or any similar law now existing or enacted after this date.
To the extent that Landlord is strictly liable under any such law,
regulation, ordinance, or requirement, Tenant's obligation to Landlord under
this indemnity shall also be without regard to fault on the part of Tenant
with respect to the violation or condition that results in liability to
Landlord.
C. DEFINITION OF HAZARDOUS MATERIALS. "Hazardous Materials" means any
product substance, chemical, material or waste whose presence, nature, quantity
and/or intensity or existence, use, manufacture, disposal, transportation,
spill, release, or effect, either by itself or in combination with any other
materials, substances or chemicals is either (i) potentially injurious or
harmful to the public health, safety or welfare, the Premises, or the
environment (including, without limitation, any soil, air, groundwater, and
subsurface media on, in, under, above or about the Project); (ii) regulated or
monitored by any federal, state or local governmental authority; or (iii) a
basis for potential liability of Landlord to any governmental agency, private
party, or other third party under any Environmental Requirement or any other
applicable statute, regulation, code, ordinance or common law theory. Without
limiting the scope or generality of the foregoing, Hazardous Materials shall
include, but not be limited to any petroleum or petroleum byproducts or
petroleum hydrocarbons, flammable explosives, asbestos, urea formaldehyde,
radioactive materials or waste and any "hazardous substance" or "toxic waste" as
those terms are defined under the provision of the California Health and Safety
Code and/or CERCLA.
D. DISCLOSURE. Tenant represents to Landlord that Tenant is aware that
detectable amounts of hazardous substances and groundwater contaminants have
come to be located beneath and/or in the vicinity of the Project. (See, for
example, California Regional Water Quality Control Board order No. 96-135)
Tenant has made such investigations and inquiries as it deems appropriate to
ascertain the effects, if any, of such substances and contaminants on its
operations and persons using the Project. Landlord makes no representation or
warranty with regard to the environmental condition of the Project. Tenant and
its affiliated entities and their respective partners, employees, successors and
assigns, hereby covenant and agree not to xxx and forever release and discharge
Landlord, and its trustees, officers, directors, agents and employees for and
from any and all claims, losses, damages, causes of action and liabilities,
arising out of hazardous substances or groundwater contamination presently
existing on, under or emanating from the Project.
E. SURVIVAL. The provisions of this paragraph 8 shall survive the
expiration or earlier termination of the term of this lease.
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Notwithstanding provisions in this lease to the contrary, Tenant shall have
no obligation to clean up or to reimburse, release, indemnify, or defend
Landlord with respect to removal or liability respecting hazardous materials or
wastes unless the hazardous materials in question were stored, disposed,
transported, used, analyzed, released, threaten to be released or otherwise
caused to be present in or about the Premises or Project by Tenant or its
agents, employees, invitees, assignees, contractors or subcontractors or others
acting for or on behalf of Tenant (whether or not they are negligent,
intentional, willful or unlawful).
9. BROKERS. Each party represents that it has not had any dealings with any
real estate broker, finder or other person with respect to this Amendment or
expanding the Premises, and that there are no leasing commissions to be paid by
Landlord or Tenant in connection with this transaction. Each party hereto shall
hold harmless the other party from all damages, loss or liability resulting from
any claims that may be asserted against the other party by any broker, finder or
other person with whom such party has dealt, or purportedly has dealt, in
connection with this transaction.
10. OPTION TO EXTEND TERM. Notwithstanding the provisions of this Amendment
extending the term of the lease, Tenant shall not be deemed to have exercised
its option to extend the term of the Lease as described in paragraph 55 of the
Lease and such option shall remain effective as described in paragraph 55 of the
Lease.
11. SUBJECT TO TERMINATION AGREEMENT. Notwithstanding the above, the
validity and effectiveness of this Amendment is subject to and contingent upon
Landlord's receipt of a valid and fully executed termination agreement from the
existing tenant in the Expansion Space, Calient Networks, Inc. (formerly
Chromisys, Inc.), terminating such tenant's lease of the Expansion Space as of
June 30, 2000.
12. RESTATEMENT OF OTHER LEASE TERMS. Except as specifically modified
herein, all other terms, covenants and conditions of the Lease, including
Tenant's obligation to pay common area charges, shall remain in full force and
effect.
SPACE INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
LANDLORD: TENANT:
XxXXXXXXXX PROPERTIES, Monolithic System Technology, Inc.
a California limited partnership a California corporation
By: By:
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Xxxx X. XxXxxxxxxx, as Trustee under the
Xxxxxxx X. XxXxxxxxxx and Xxxx X. XxXxxxxxxx
Inter Vivos Trust Agreement dated January 25, ---------------------------------
1977, a General Partner (Printed Name)
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(Title)
7-9-00 July 5, 2000
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(Date) (Date)
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