Exhibit 4(kk)
First Amendment to Lease Agreement
This First Amendment to Lease Agreement (the "Amendment") is made and entered
into as of June 7, 2000, by and between RND Funding Company, Inc., a Delaware
corporation ("Landlord"), and ISE Labs, Inc., a California corporation
("Tenant"), with reference to the following facts.
Recitals
(a) Xxx Xxxx No. VII ("Original Landlord") and Alphatec Electronics Company
Limited (Public), a Thailand corporation, ("Original Tenant") have entered
into that certain Lease Agreement dated as of March 23, 1995 (the "Lease")
for the leasing of certain premises consisting of approximately 70,538
rentable square feet located at 0000 Xxxxxxxx Xxx, Xxxxx Xxxxx, Xxxxxxxxxx
(the "Premises") as such Premises are more fully described in the Lease.
(b) In connection with a transfer by Original Landlord to Landlord of certain
real property of which the Premises is a part, Original Landlord assigned
all of its right, title and interest in, to and under the Lease to
Landlord and Landlord assumed the obligations of Original Landlord under
the Lease. In addition, in connection with that certain Assignment and
Assumption of Lease dated September 12, 1997, Original Tenant has assigned
its right, title and interest in the Lease and Premises to Digital Testing
Services, Inc., a California corporation ("Current Tenant")
(c) Current Tenant now wishes to assign all its right, title and interest in
the Lease to Tenant and Tenant wishes to accept said Assignment.
(d) In addition, Landlord and Tenant now wish to amend the Lease to provide
for, among other things, the extension of the Term of the Lease, all upon
and subject to each of the terms, conditions and provisions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant agree as follows:
1. Recitals: Landlord and Tenant agree that the above recitals are
true and correct and are hereby incorporated herein as though set
forth in full.
2. Assignment and Assumption: Effective as of the date of this
Amendment, Current Tenant hereby grants, transfers, assigns and
delegates to Tenant all of its right, title and interest and
obligations of Current Tenant under the Lease, and Tenant accepts
such assignment and delegation above, assumes the Lease, agrees to
pay all rent and other charges accruing under the Lease from and
after the date hereof and agrees to observe and perform directly to
Landlord, all of the other covenants, agreements and obligations to
be observed and/or performed by the tenant under the Lease from and
after the date hereof. Tenant has inspected the Premises and knows
the present condition thereof and confirms that neither Landlord nor
any officer, director, employee, agent or beneficiary of Landlord has
made any representation or warranty to Tenant concerning the
Premises, or otherwise, expressed or implied, and that Tenant does
not accept the Premises in reliance upon any such representation or
warranty.
3. Term: The Term of the Lease shall be extended for the period
commencing on November 1, 2000 through October 31, 2010 (the
"Extended Term").
4. Base Rent: The Basic Lease Information and Section 4 of the
Lease are hereby modified to provide that during the Extended Term of
the Lease the monthly Base Rent payable by Tenant to Landlord, in
accordance with the provisions of Section 4 of the Lease shall be in
accordance with the following schedule:
Effective November 1, 2000, the Base Rent shall be $202,444.06 per
month; Effective November 1, 2001, the Base Rent shall be $210,541.82
per month; Effective November 1, 2002, the Base Rent shall be
$218,963.49 per month; Effective November 1, 2003, the Base Rent
shall be $227,722.04 per month;
Effective November 1, 2004, the Base Rent shall be $236,830.92 per
month; Effective November 1, 2005, the Base Rent shall be $246,304.15
per month; Effective November 1, 2006, the Base Rent shall be
$256,156.32 per month; Effective November 1, 2007, the Base Rent
shall be $266,402.57 per month; Effective November 1, 2008, the Base
Rent shall be $277,058.67 per month; and
Effective November 1, 2009, the Base Rent shall be $288,141.02 per
month.
5. Option to Extend the Term: The parties hereby acknowledge and
agree that Tenant did exercise the Option to Extend the Term of the
Lease in accordance with the terms and provisions set forth in
Section 3.2 of the Lease. Tenant further acknowledges and agrees that
the Option to Extend the Lease as set forth in Section 3.2 is of no
further force and effect, and Tenant does not have any additional
rights under the Lease to further extend the Term of the Lease.
6. Condition of Premises: Tenant acknowledges and agrees that its
possession of the Premises after October 31, 2000 is a continuation
of Tenant's possession of the Premises under the Lease. Tenant is
familiar with the condition of the Premises, and agrees to accept the
Premises in their existing condition "AS IS", without any obligation
of Landlord to remodel, improve or alter the Premises, to perform any
other construction or work of improvement upon the Premises, or to
provide Tenant with any construction or refurbishing allowance,
except as expressly otherwise provided in Section 7 below.
7. Tenant Improvement Allowance: Subject to the terms and provisions
of this Amendment, Landlord shall, within thirty (30) days of receipt
of all required documents from Tenant, provide to Tenant an allowance
in the amount of $211,614.00 (the "Tenant Improvement Allowance") to
construct and install in the Premises the Tenant Improvements as
defined herein.
"Tenant Improvements" as used in this Amendment shall include only
those interior improvements to be made to the Premises as agreed to
by Tenant and Landlord in accordance with the provisions hereof.
"Tenant Improvements" shall specifically not include (i) any of
Tenant's trade fixtures (not including Tenant's test floor area floor
covering), racking, security equipment, equipment, furniture,
furnishings, telephone and/or data equipment, telephone and/or data
lines or other personal property, and (ii) any supplemental fire
protection improvements or equipment, including without limitation,
in-rack fire sprinklers, hose racks, reels, smoke vents, and draft
curtains (collectively "Tenant's Installations").
Tenant shall prepare plans and specifications ("Plans and
Specifications") for the Tenant Improvements. Tenant shall deliver
the Plans and Specifications to Landlord, in form and with sufficient
detail as reasonably requested by Landlord. Landlord shall reasonably
approve or disapprove the Plans and Specifications within five (5)
days after Landlord receives the Plans and Specifications and, if
disapproved, Landlord shall return the Plans and Specifications to
Tenant, who shall make all necessary revisions as reasonably required
by Landlord. This procedure shall be repeated until Landlord approves
the Plans and Specifications. The approved Plans and Specifications,
as modified, shall be deemed the "Final Plans and Specifications".
Tenant shall be solely responsible for the construction, installation
and completion of the Tenant Improvements in accordance with approved
Final Plans and Specifications and is solely responsible for the
payment of all amounts when payable in connection therewith without
any cost or expense to Landlord, except for Landlord's obligation to
contribute the Tenant Improvement Allowance in accordance with the
provisions herein. Tenant shall diligently proceed with the
construction, installation and completion of the Tenant Improvements
in accordance with the completion schedule reasonably approved by
Landlord, subject to force majeure and Landlord delays.
Tenant, at its sole cost and expense (which may be paid out of the
Tenant Improvement Allowance), shall obtain all governmental
approvals to the full extent necessary for the issuance of a building
permit for the Tenant Improvements, if required by applicable law or
code. Tenant at its sole cost and expense (which may be paid out of
the Tenant Improvement Allowance) shall undertake all steps necessary
to insure that the construction of the Tenant Improvements is
accomplished in strict compliance with all statutes, laws,
ordinances, codes, rules, and
regulations applicable to the construction of the Tenant Improvements
and the requirements and standards of any insurance underwriting
board, inspection bureau or insurance carrier insuring the Premises.
Subject to Landlord complying with its obligations to provide the
Tenant Improvement Allowance herein, Tenant shall pay and discharge
promptly and fully all claims for labor done and materials and
services furnished in connection with the Tenant Improvements. The
Tenant Improvements shall not be commenced until ten (10) business
days after Landlord has received notice from Tenant stating the date
the construction of the Tenant Improvements is to commence so that
Landlord can post and record any appropriate Notice of
Non-responsibility.
Tenant shall maintain, and case to be maintained, during the
construction of the Tenant Improvements, at its sole cost and
expense, builders' risk insurance for the amount of the completed
value of the Tenant Improvements on an all-risk non-reporting form
covering all improvements under construction, including building
materials, and other insurance in amounts and against such risks as
the Landlord shall reasonably require in connection with the Tenant
Improvements.
Upon completion of the Tenant Improvements and prior to any payment
of the Tenant Improvement Allowance by Landlord, Tenant shall deliver
to Landlord the following, all of which shall be to Landlord's
reasonable satisfaction:
(i) A cost breakdown itemizing all expenses for the Tenant
Improvements, together with invoices and receipts for the same or
other evidence of payment.
(ii) Final and unconditional mechanic's lien waivers from
Tenant's general contractor for all the Tenant Improvements.
8. Excess Rents: Section 14.4 of the Lease shall be deleted in its
entirety and shall now read as follows:
"If Landlord consents to a sublease or assignment, as a
condition thereto which the Tenant hereby agrees is
reasonable, Tenant shall pay to Landlord, as Additional
Rent any "Excess Rents" received by Tenant from such
assignee or sublessee. The term "Excess Rents" shall mean
all rent, additional rent and other consideration payable
by such assignee or sublessee which either initially or
over the term of the sublease or assignment exceeds the
Rent or pro rata portion of the Rent, as the case may be,
for such space reserved in the Lease. Tenant shall pay the
Landlord monthly, as Additional Rent, at the same time as
the monthly installments of Rent are payable hereunder,
fifty percent (50%) of the Excess Rents after the recovery
by Tenant of reasonable amounts for brokerage commissions,
legal expenses, and Tenant Improvement costs to the extent
such items have been incurred by Tenant in connection with
the subject sublease or assignment."
9. Security Deposit: The parties acknowledge that Landlord now holds
the sum of $54,314.26, to be applied subject to the provisions of the
Lease. Current Tenant releases all claims to that sum, and agrees
that the sum shall be held by Landlord for the benefit of Tenant,
subject to the provisions of the Lease. In addition, Tenant shall
upon execution of this First Amendment, deposit with Landlord the
amount of $233,826.76 which shall be added to the existing Security
Deposit to total $288,141.02.
10. Current Tenant's and Tenant's Continuing Obligations to Landlord:
Current Tenant hereby covenants, warrants and agrees for the benefit
of Landlord that notwithstanding the assignment made herein, Current
Tenant shall in all events and circumstances remain primarily liable
to Landlord for and not be released or discharged from the
performance of the tenant's obligations under the Lease (whether
past, present or future), all of which liabilities and obligations
Current Tenant agrees to pay and perform promptly, and Current Tenant
and Tenant hereby covenant and warrant to Landlord that after the
Assignment Date, Current Tenant and Tenant shall be jointly and
severally liable under the Lease for all of the tenant's obligations
under the Lease, except that Tenant shall only be liable for such
obligations arising from and after the date hereof. Current Tenant
and Tenant hereby further covenant and warrant that Landlord's
consent to this assignment shall not in any manner affect Landlord's
ability to proceed against Current Tenant and Tenant, both jointly
and severally, for any failure by Tenant or Current Tenant to perform
any of its obligations under the Lease, nor shall any such consent be
construed as a waiver by Landlord of any of its rights or remedies
under the Lease. In the event of any conflict or dispute between
Current Tenant and Tenant with respect to each of their obligations
under the Lease, Landlord shall not be affected, impaired or
otherwise adversely affected thereby, and Current Tenant and Tenant,
jointly and severally, shall protect, hold harmless, defend and
indemnify Landlord from and against any and all claims, damages,
judgments, liabilities, losses, costs and expenses, including,
without limitation, reasonable attorneys' fees and costs, arising
from or related to this Agreement, any brokerage commissions or fees
asserted against or incurred by Current Tenant and/or Tenant, and any
disputes or conflicts between Current Tenant and Tenant with respect
to the Lease, this Agreement, the Premises or any other matters
affecting Landlord.
11. Effect of Amendment: Except as modified herein, the terms and
provisions of the Lease shall remain unmodified and continue in full
force and effect. In the event of any conflict between the terms and
provisions of the Lease and this Amendment, the terms and provisions
of this Amendment shall prevail.
12. Definitions: Unless otherwise defined in this Amendment, all
terms not defined in this Amendment shall have the meaning set forth
in the Lease.
13. Authority: Subject to the provisions of the Lease, this Amendment
shall be binding upon and inure to the benefit of the parties hereto,
their respective heirs, legal representatives, successors and
assigns. Each party hereto and the persons signing below warrant that
the person signing below on such party's behalf is authorized to do
so and to bind such party to the terms of this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and
year first above written.
Current Tenant:
Digital Testing Services, Inc.,
a California corporation
By: /s/
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Its: VP of Corp. Planning & Quality
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Date: June 27, 2000
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Tenant:
ISE LABS, INC.,
a California corporation
By: /s/
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Its: VP of Corp. Planning & Quality
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Date: June 27, 2000
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Landlord:
RND FUNDING COMPANY, INC.,
a Delaware corporation
By: /s/
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Its: Vice President
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Date: June 29, 2000
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