FIRST AMENDMENT TO LEASE
Exhibit 10.49
FIRST
AMENDMENT TO LEASE
I. PARTIES AND DATE.
This
First Amendment to Lease (the “Amendment”) dated November 12, 2008, is by and between
THE IRVINE COMPANY LLC, a Delaware limited liability company, as successor-in-interest to Irvine
Commercial Property Company LLC, a Delaware limited liability company
(“Landlord”), and BROADCOM
CORPORATION, a California corporation (“Tenant”).
II. RECITALS.
On
October 31, 2007, Landlord and Tenant entered into a lease
(“Lease”) for space in a
building located at 0000 Xxxxxxxxxx, Xxxxxx, Xxxxxxxxxx (the “5211 California Premises”).
Landlord and Tenant each desire to modify the Lease to add approximately 53,840 rentable
square feet of space consisting of all of the rentable square footage of the building located at
0000 Xxxxxxxxxx, Xxxxxx, Xxxxxxxxxx, which space is more particularly
described on EXHIBIT A
attached to this Amendment and herein referred to as the “5241 California Premises”, to adjust the
Basic Rent and make such other modifications as are set forth in “III, MODIFICATIONS” next below.
III. MODIFICATIONS.
A. Building. All references to the “Building” in the Lease shall be amended to refer
to the
two (2) buildings located at 5211 California (the “5211 California Building”) and at 5241
California (the “5241 California Building”), Irvine, California, either collectively or
individually as
the context may reasonably require.
B. Premises. From and after the “Commencement Date for the 5241 California Premises”
(as hereinafter defined), the 5211 California Premises together with the 5241 California
Premises
shall collectively constitute the “Premises” under the Lease.
1. Effective as of the Commencement Date for the 5241 California Premises,
Item I shall be deleted in its entirety and substituted therefor shall be the
following:
“1. Premises: The Premises are more particularly described in Section 2.1.
Address of Buildings: 5211 California and 0000 Xxxxxxxxxx, Xxxxxx, XX”
Address of Buildings: 5211 California and 0000 Xxxxxxxxxx, Xxxxxx, XX”
2. Item 4 is hereby amended by adding the following:
“Commencement
Date for the 5241 California Premises” shall mean the
earlier
to occur of: (a) the date Tenant commences its normal business within the
5241 California Premises, or (b) the first business day of the week (but not
sooner than January 1, 2010) following Tenant’s receipt of a factually
correct notice that the “Tenant Improvements” (as defined in the Work Letter
attached as EXHIBIT X to this Amendment) are substantially
completed, provided that the 5241 California Premises shall not be tendered
to Tenant until all approvals by relevant governmental authorities of the
Tenant Improvements which are required for occupancy of the 5241 California
Premises have been obtained (as evidenced by written approval thereof in
accordance with the building permits issued for the Tenant Improvements or
issuance of a temporary or final certificate of occupancy for the Premises),
or (c) January 1, 2010; provided, however, that: (i) the occurrence of the
Commencement Date for the 5241 California Premises pursuant to this
subsection (c) shall be extended, on a day-for-day basis, in the event and
for
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each day that the substantial completion of the Tenant Improvements is delayed beyond
January 1,2010 due to (x) a “Landlord Delay” (as defined in the Work Letter attached as
EXHIBIT X to this Amendment), or (y) any fire, flood, earthquake or other
casualty (collectively (“X EVENTS”). In addition, if the Commencement Date has already
occurred pursuant to said subsection (c), then, to the extent that there has been a delay
in the substantial completion of the Tenant Improvements as a result of X EVENTS, Tenant
shall receive one day of the Rent abatement for each day that substantial completion of
the Tenant Improvements was in fact so delayed.
3. Item 6 is hereby amended by adding the following:
“Basic Rent for the 5241 California Premises: Commencing on the Commencement Date for the
5241 California Premises, the Basic Rent for the 5241 California Premises shall be Ninety
Nine Thousand Six Hundred Four Dollars ($99,604.00) per month, based on $1.85 per
rentable square foot.
Commencing on the first (1st) anniversary of the Commencement Date, the Basic Rent for
the 5241 California Premises shall be One Hundred Four Thousand Nine Hundred Eighty-Eight
Dollars ($104,988.00) per month, based on $1.95 per rentable square foot.
Commencing on the second (2nd) anniversary of the Commencement Date, the Basic Rent for
the 5241 California Premises shall be One Hundred Ten Thousand Three Hundred Seventy-Two
Dollars ($110,372.00) per month, based on $2.05 per rentable square foot.
Commencing on the third (3rd) anniversary of the Commencement Date, the Basic Rent for
the 5241 California Premises shall be 5241 California Premises shall be One Hundred
Fifteen Thousand Seven Hundred Fifty-Six Dollars ($115,756.00) per month, based on $2.15
per rentable square foot.
Commencing on the fourth (4th) anniversary of the Commencement Date, the Basic Rent for
the 5241 California Premises shall be One Hundred Twenty One Thousand One Hundred Forty
Dollars ($121,140.00) per month, based on $2.25 per rentable square foot.
Commencing on the fifth (5th) anniversary of the Commencement Date, the Basic Rent for the
5241 California Premises shall be One Hundred Twenty-Six Thousand Five Hundred Twenty-Four
Dollars ($126,524.00) per month, based on $2.35 per rentable square foot.
Commencing on the sixth (6th) anniversary of the Commencement Date, the Basic Rent for
the 5241 California Premises shall be One Hundred Thirty One Thousand Nine Hundred Eight
Dollars ($131,908,00) per month, based on $2.45 per rentable square foot.
Commencing on the seventh (7th) anniversary of the Commencement Date, the Basic Rent for
the 5241 California Premises shall be One Hundred Thirty Seven Thousand Two Hundred
Ninety-Two Dollars ($137,292.00) per month, based on $2.55 per rentable square foot.”
4. Effective as of the Commencement Date for the 5241 California Premises,
Item 8 shall be deleted in its entirety and substituted therefor shall be the following:
“8. Floor Area of Premises: Approximately 117,280 rentable square feet, comprised of the
following:
5211 California Premises — approximately 63,440 rentable square feet
5241 California Premises — approximately 53,840 rentable square feet”
5241 California Premises — approximately 53,840 rentable square feet”
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5. Effective as of the Commencement Date for the 5241 California Premises,
Item 15 shall be deleted in its entirety and substituted therefor shall be the
following:
“9. Vehicle Parking Spaces: Four Hundred Forty-Eight (448)”
D. Condition of 5241 California Building. The warranty on the part of Landlord
contained
in Section 2.4 of the Lease shall be applicable and binding on Landlord as to the 5241
California
Building as of the Commencement Date for the 5241 California Premises. Provided Tenant shall
notify Landlord of a non-compliance with such warranty obligation on or before sixty (60) days
following the later to occur of (i) the Commencement Date for the 5241 California Premises, or
(ii) the date Tenant commences its business operations from the 5241 California Premises, then
Landlord shall promptly after receipt of written notice from Tenant setting forth the nature
and extent
of such non-compliance, rectify same at Landlord’s cost and expense.
E. Signage. The first sentence of Section 5.2 of the Lease, entitled “Signs”, is
hereby
deleted in its entirety and substituted therefor shall be the following two sentences:
“Provided Tenant continues to lease the entire 5211 California Building,
Tenant shall have the exclusive right to either: (i) one (1) exterior “eye
brow” and one (1) exterior “building top” signs on the 5211 California
Building, or (ii) two (2) exterior “building top” signs on the 5211
California Building, in either event for Tenant’s name and graphics to the
extent permitted by the Signage Criteria (defined below). Provided Tenant
continues to lease the entire 5241 California Building, Tenant shall have
the exclusive right to either: (a) one (1) exterior “eye brow” and one (1)
exterior “building top” signs on the 5241 California Building, or (b) two
(2) exterior “building top” signs on the 5241 California Building, in
either event for Tenant’s name and graphics to the extent permitted by the
Signage Criteria (defined below).”
F. License for Generator. The reference in the first sentence of Section 6.6 of the
Lease,
entitled “License for Generator” to “one (1) generator for the Building” is hereby revised to
“one (1)
generator for each of the 5211 California Building and the 5241 California Building”.
G. Communications Equipment. Section 7.6 of the Lease, entitled “Communications
Equipment” is hereby amended to provide Tenant the license to install, maintain and operate an antenna on each of the 5211 California Building and the 5241 California Building pursuant to the provisions of said Section 7.6.
Equipment” is hereby amended to provide Tenant the license to install, maintain and operate an antenna on each of the 5211 California Building and the 5241 California Building pursuant to the provisions of said Section 7.6.
H. Broker’s Commission. Article XVIII of the Lease is amended to provide that the
parties recognize the following parties as the brokers who negotiated this Amendment, and agree
that Landlord shall be responsible for payment of brokerage commissions to such brokers: Irvine
Realty Company (“Landlord’s Broker”) and Real
Tech, Inc. (“Tenant’s Broker”). It is understood and
agreed that Landlord’s Broker represents only Landlord in connection with the execution of this
Amendment and that Tenant’s Broker represents only Tenant. The warranty and indemnity provisions
of Article XVIII of the Lease, as amended hereby, shall be binding and enforceable in connection
with the negotiation of this Amendment.
I. Tenant Improvements. Landlord hereby agrees to complete the Tenant Improvements
for the 5241 California Premises in accordance with the provisions of
Exhibit X, Work Letter,
attached hereto.
J. Contingency. Tenant understands and agrees that the effectiveness of this Amendment
is contingent upon the mutual execution of a lease surrender and
termination agreement (“LS&TA”)for
the 5241 California Premises between Landlord and Skyworks Solutions, Inc., a Delaware corporation
(“Skyworks”), the current tenant in possession of the first floor of the 5241 California Premises.
Landlord may terminate this Amendment at any time by written notice to Tenant in the event that
LS&TA has not been fully executed, provided that Landlord agrees (for the benefit solely of Tenant)
that Landlord shall execute the LS&TA in the form and with the content of the LS&TA forwarded to
Skyworks for execution on November 3,2008 if Skyworks executes and returns same to Landlord by
December 15,2008. Subject to the foregoing, if the LS&TA is not fully executed by December 15, 2008
(with Landlord providing notice to Tenant by December 22, 2008 that the
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LS&TA has been fully executed), then this Amendment may thereafter be terminated by Tenant upon
Tenant providing written notice of termination to Landlord on or before January 28,2009 (provided
that, to be effective, such notice of termination must be sent prior to any written notice from
Landlord to Tenant that the LS&TA has been fully executed).
K. Representation and Warranty. Landlord agrees that the representation and
warranty contained in Section 13.2 of the Lease applies to the 5241 California Premises.
L. Assignment Rights. The following provisions are hereby added as Section 9.7 of the
Lease:
“SECTION 9.7 Assignment Rights. In the event Tenant desires to assign this
Lease, as amended, to an assignee which only wants to accept an assignment as to
the 5241 California Premises or as to the 5211 California Premises, but not as to
the entire Premises, then upon Tenant’s written request delivered to Landlord at
the time of the request for Landlord’s consent to such assignment, Landlord shall
also, if it grants its consent to such assignment, prepare two separate leases, one
for each of the 5211 California Premises and for the 5241 California Premises,
incorporating the relevant portions of the Lease so that the rights and obligations
of Landlord and Tenant are properly allocated so that the original Lease, as hereby
amended, is resurrected and a new lease is created for the 5241 California Premises
basically incorporating the terms and conditions of the original Lease, as hereby
amended, but changing them as appropriate to be limited to the 5241 California
Premises as to the terms that apply to the 5241 California Premises. Tenant’s
rights under this Section 9.7 are subject to Landlord’s right to consent to any
such proposed assignee as provided in Section 9.1 of the Lease, the rights and
obligations of the parties under Sections 9.1 (c) and 9.1 (d) of the Lease, and the
provisions of Section 9.2 of the Lease. Tenant shall reimburse Landlord for all of
its legal fees in preparing such new leases, which can be on an estimated basis if
done “in-house” and Tenant shall pay Landlord for such legal fees as estimated in
good faith by Landlord.
IV. GENERAL.
A. Effect of Amendments. The Lease shall remain in full force and effect except to the
extent that it is modified by this Amendment.
extent that it is modified by this Amendment.
B. Entire Agreement. This Amendment embodies the entire understanding between
Landlord and Tenant with respect to the modifications set forth in
“III. MODIFICATIONS” above
and can be changed only by a writing signed by Landlord and Tenant.
C. Counterparts. If this Amendment is executed in counterparts, each is hereby
declared to
be an original; all, however, shall constitute but one and the same amendment. In any action
or
proceeding, any photographic, photostatic, or other copy of this Amendment may be introduced
into
evidence without foundation.
D. Defined Terms. All words commencing with initial capital letters in this Amendment
and
defined in the Lease shall have the same meaning in this Amendment as in the Lease, unless
they are
otherwise defined in this Amendment.
E. Corporate and Partnership Authority. If Tenant is a corporation or partnership, or
is
comprised of either or both of them, each individual executing this Amendment for the
corporation
or partnership represents that he or she is duly authorized to execute and deliver this
Amendment on
behalf of the corporation or partnership and that this Amendment is binding upon the
corporation or
partnership in accordance with its terms.
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V. EXECUTION.
Landlord and Tenant executed this Amendment on the date as set forth in “I. PARTIES AND
DATE.” above.
LANDLORD:
|
TENANT: | |
THE IRVINE COMPANY LLC
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BROADCOM CORPORATION, | |
a Delaware limited liability company
|
a California corporation |
By
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/s/ Xxxxxxx X. Xxxxxxxxx | By | /s/ Xxx Xxxxxx | |||||||
President, Investment Properties Group |
Name Title |
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By
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/s/ E. Xxxxxxx Xxxxxxx
|
By | /s/ Xxxxx Xx Xxxxxx
|
|||||||
| E. Xxxxxxx Xxxxxxx President, Office Properties |
Name Title |
Xxxxx Xx Xxxxxx
|
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 |
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