AMENDMENT TO LEASE AGREEMENT
Exhibit 10.43
AMENDMENT TO LEASE AGREEMENT
This Amendment to Lease Agreement (this “Amendment”) is entered into as of September 30,2005
(the “Effective Date”), by and between 190 MATHILDA PLACE, LLC, a California limited liability
company (herein called “Landlord”), and BROADCOM CORPORATION, a California corporation, (herein
called “Tenant”).
RECITALS
A. Tenant and Landlord are parties to that certain Lease Agreement dated as of May
18, 2000 (the “Existing Lease”), pursuant to which Landlord’s predecessor-in-interest leased
to
Tenant, and Tenant hired from Landlord’s predecessor-in-interest, certain Premises consisting
of
122,020 rentable square feet (the “Existing Premises”) in that certain 125,019 rentable square
foot building commonly known as 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx (the “Building”),
on the terms and conditions contained therein.
B. Tenant and Landlord now desire to amend the Lease to, among other things, add
additional space to the Existing Premises, consisting of the remaining 2,999 rentable square
feet
on the first floor of the Building, which additional space is defined as the “Excluded Space”
in
the Existing Lease and is depicted on the attached Exhibit “A” (the “Additional Premises”), in
accordance with this Amendment.
accordance with this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the adequacy of which is hereby
acknowledged by the parties, Tenant and Landlord hereby agree as follows:
1. Certain Defined Terms.
1.1 All capitalized terms used in this Amendment and not defined herein shall
have the meanings set forth in the Lease.
1.2 The term “Premises” as used in the Lease and this Amendment shall be
deemed to refer to both the Existing Premises and the Additional Premises, except as otherwise
expressly provided in this Amendment.
2. Commencement Date. Landlord and Tenant confirm that the Commencement
Date with respect to the Existing Premises (the “Existing Commencement Date”) is September 1,
2002. The Commencement Date with respect to the Additional Premises (the “Expansion
Commencement Date”) shall be the earlier to occur of (i) ninety (90) days following the
Effective Date, and (ii) the date upon which Tenant actually commences business in any portion
of the Additional Premises. The initial Expiration Date for the entire Premises (subject to
extension in accordance with Paragraph 42 of the Lease) shall be August 31, 2012. All of the
provisions of the Lease shall apply from and after the Effective Date, except for Tenant’s
obligation to pay Rent with respect to the Additional Premises (including, without limitation,
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Tenant’s Share of Additional Charges allocable thereto), which shall commence on the Expansion
Commencement Date.
3. Condition of Additional Premises. The Additional Premises shall be delivered by
Landlord to Tenant on the Effective Date, in “broom clean” condition, but otherwise in their
“as-
is” condition. The commencement and/or completion of the Landlord’s Work (as defined in
Section 4.1 below) shall not be a condition to the Effective Date occurring or the Additional
Premises being delivered by Landlord to Tenant. Tenant acknowledges that, with the exception
of the good and workmanlike construction of the Landlord’s Work (and removal of Landlord’s
property and all construction debris from the Additional Premises), which shall be completed
by
Landlord in accordance with Section 4.1 below, Landlord has not made any representation or
warranty with respect to the condition, suitability or fitness of the Additional Premises for
the
conduct of Tenant’s Permitted Use or for any other purpose. By accepting delivery of and
commencing business at the Additional Premises, Tenant shall be deemed to have accepted the
same as suitable for the purpose herein intended, subject to completion of the Landlord’s
Work,
and that the condition of the Premises complies with Landlord’s obligations for delivery of
the
Additional Premises as provided in this Section 3. Tenant shall be deemed to occupy the
Additional Premises as of the Effective Date, regardless of whether Tenant actually physically
occupies any portion of the Additional Premises.
4. Improvements to Additional Premises.
4.1 Landlord’s Work. The “Landlord’s Work” shall consist of certain work
on the existing exterior doors to the Additional Premises, as specifically described on
Exhibit
“B” attached hereto. Tenant shall provide Landlord and its contractor reasonable access to
the
Additional Premises as necessary or desirable to complete the Landlord’s Work in a timely
manner and without unreasonable interference from Tenant, its agents, employees and
contractors, provided that both Landlord and Tenant and their respective contractors shall
conform with Tenant’s contractor’s schedule and work for the Additional Tenant Improvements
in such a manner as to maintain harmonious labor relations and as not to interfere with or
delay
the work of the other party’s contractors. Landlord shall use commercially reasonable efforts
to
complete the Landlord’s Work within thirty (30) days after the Effective Date, subject to
Tenant’s obligations regarding cooperation and access in this Section 4.1 and further subject
to
any delay caused by Tenant, its employees, agents or contractors or resulting from work on the
Additional Tenant Improvements. Tenant shall have ten (10) days following Landlord’s written
notice to Tenant that the Landlord’s Work has been completed in which to notify Landlord of
any defects in the construction of Landlord’s Work, which Landlord shall promptly and
diligently correct following receipt of such notice, subject to Tenant’s obligations regarding
cooperation and access in this Section 4.1. If Tenant fails to notify Landlord of any such
defects
within such ten day period, or upon completion by Landlord of any correction work with respect
to any defects so noted by Tenant, Tenant shall be deemed to have acknowledged that the
Landlord’s Work has been completed by Landlord and accepted by Tenant and Landlord shall
have no further obligations to Tenant with respect to the Landlord’s Work.
4.2 Additional Tenant Improvements. Commencing on the Effective Date,
Tenant shall be permitted to enter into the Additional Premises and furnish and install, at
Tenant’s expense (subject to Section 4.3 below), all of those interior improvements to the
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Additional Premises shown on Tenant’s space plan attached hereto as Exhibit “C”, in accordance
with the terms and conditions for “Alterations” contained in Paragraph 6 of the Lease (including,
without limitation, submission and approval by Landlord of plans and specification), but without
regard to Paragraph 6(b) of the Lease. Although Exhibit “C” includes portions of the Existing
Premises in addition to the Additional Premises, Landlord has not, and does not by attachment of
Exhibit “C” to this Amendment, approve any Alterations shown on Exhibit “C” and located outside
the Additional Premises. All interior improvements to be located within the Additional Premises
(exclusive of tenant’s trade fixtures, furnishings and equipment) shown on Exhibit “C” shall be
defined herein as the “Additional Tenant Improvements,” and shall be included within the
definition of “Tenant Improvements” in the Lease. Tenant shall be liable for any damages to the
Additional Premises caused by Tenant’s or its representatives’ or contractors’ activities at the
Additional Premises prior to the Expansion Commencement Date and for any unreasonable interference
with or delay in completion of the Landlord’s Work caused by Tenant’s activities in the Additional
Premises. Prior to entering the Additional Premises, Tenant shall cause all insurance it is
required to obtain under the Lease to apply to the Additional Premises and Tenant’s use and
activities thereon.
4.3 TI Allowance. Landlord shall provide Tenant an allowance (“TI Allowance”)
in the amount of Fifty-Nine Thousand Nine Hundred Eighty Dollars ($59,980) to be applied toward the
cost of the following items in respect of the Additional Tenant Improvements: architectural and
engineering fees, space planning, building permits or other governmental fees, and the cost of
labor, materials, contractors fees and overhead and other charges included in the
construction contract for construction of Additional Tenant Improvements. Landlord shall
not be obligated to disburse any portion of the TI Allowance until such time as (i) the Expansion
Commencement Date has occurred and Tenant has accepted delivery of the Additional Premises,
commenced business at the Additional Premises and commenced payment of Rent with respect to the
Additional Premises; and (ii) Tenant has delivered to Landlord and Landlord has approved, in
Landlord’s reasonable discretion, all of the following: (A) invoices, paid receipts and/or related
evidence reasonably acceptable to Landlord establishing that Tenant has paid an amount equal to
that portion of the TI Allowance requested by Tenant to third parties in connection with the
Additional Tenant Improvements; (B) executed unconditional final mechanics’ lien releases, in
statutory form, from Tenant’s contractor and all subcontractors, laborers, materialmen and
suppliers providing materials or services in excess of $10,000 and used by Tenant with respect to
all work in and to the Additional Premises; (C) a certificate from Tenant’s architect or space
planner, in a form reasonably acceptable to Landlord, certifying that the construction of the
Additional Tenant Improvements has been substantially completed and meets all applicable building
codes; (D) a copy of the certificate of occupancy (or similar governmental authorization) for the
Additional Premises; and (E) “as-built” drawings for the Additional Tenant Improvements, signed by
either Tenant’s architect, space planner or contractor. Thereafter, Landlord shall deliver, within
fifteen (15) days following Tenant’s delivery of the materials and information required for
disbursement thereof in the preceding sentence, a check payable to Tenant in the amount of that
portion of the TI Allowance requested by Tenant and paid to third parties in connection with the
Additional Tenant Improvements. Landlord’s payment of the TI Allowance shall not be deemed
Landlord’s approval of the Additional Tenant Improvements absent Landlord’s prior approval pursuant
to Paragraph 6 of this Lease.
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5. Rent. Commencing on the Expansion Commencement Date, the “Monthly Base
Rent” payable by Tenant shall be the sum of (a) the Rent then payable under the Lease with
respect to the Existing Premises, and (b) Monthly Base Rent for the Additional Premises at the
initial rate Four Thousand Six Hundred Forty-Eight and 45/100 Dollars ($4,648.45), subject to
adjustment pursuant to Paragraph 3(b) of the Lease.
6. Rentable Area and Tenant’s Share. Landlord and Tenant confirm that as of the
Expansion Commencement Date the Rentable Area of the Premises for purposes of determining
the Monthly Base Rent and Tenant’s Share will be 125,019 rentable square feet, consisting of
122,020 rentable square feet in the Existing Premises and 2,999 rentable square feet in the
Additional Premises. Such Rentable Area shall be conclusive and binding on the parties and not
subject to remeasurement. As of the Expansion Commencement Date, “Tenant’s Share” shall
increased to 100% of the Building.
7. Option to Renew. Tenant’s option to extend the Term of the Lease for the
Extension Term pursuant to Paragraph 42 of the Lease shall apply only to the entire Premises
(including the Existing Premises and the Additional Premises), such that Tenant shall not have
the option to extend only with respect to the Existing Premises or only with respect to the
Additional Premises.
8. Counterparts. This Amendment may be executed in counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute one and the same
instrument.
9. No Other Amendments. Except as amended hereby, the terms of the Lease,
including all exhibits and schedules attached thereto, shall remain unmodified and in full
force
and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
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| LANDLORD: | ||||||||||
| 190 MATHILDA PLACE, LLC, | ||||||||||
| a California limited liability company | ||||||||||
| By: | M-F Downtown Sunnyvale, LLC, | |||||||||
| a Delaware limited liability company, its sole member | ||||||||||
| By: | M-D Ventures, Inc., | |||||||||
| a California corporation, manager | ||||||||||
| By: | /s/ Xxxx Xxxxxx | |||||||||
| TENANT: | ||||||||||
| BROADCOM CORPORATION, | ||||||||||
| a California corporation | ||||||||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||||||||
| Xxxxxxx X. Xxxxxx, Vice President and CFO | ||||||||||
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