FOURTH AMENDMENT TO LEASE
EXHIBIT 10.21
FOURTH AMENDMENT TO
LEASE
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I.
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PARTIES
AND DATE.
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This
Amendment to Lease dated
November
9 , 2006, is by and between THE IRVINE COMPANY
LLC ("Landlord"), and ACACIA RESEARCH CORPORATION, a Delaware corporation
('Tenant").
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II.
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RECITALS.
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On
January 28, 2002, Landlord and Tenant entered into an office space lease for
space in a building located at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx
Xxxxx, Xxxxxxxxxx ("Premises"), which lease was amended by a First Amendment to
Lease dated August 13, 2004, wherein Suite 780 was added to the Premises, a
Second Amendment to Lease dated February 9, 2005, wherein Suite 750 was added to
the Premises, and a Third Amendment to Lease dated March 14, 2006 (as amended,
the "Lease"),
Landlord
and Tenant each desire to modify the Lease to add approximately 2,743 rentable
square feet of space on the fifth (5th) floor
of the Building ("Suite 570"), adjust the Basic Rent, and make such other
modifications as are set forth in "III. MODIFICATIONS" next below.
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III.
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MODIFICATIONS.
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A. Basic Lease
Provisions. The Basic Lease Provisions are hereby amended as
follows:
1. Effective
as of the Commencement Date for Suite 570, Item 2 shall be amended by adding
"Suite 570".
2. Item
4 is hereby amended by adding the following:
"Estimated
Commencement Date for Suite 570: Thirteen (13) weeks following the date of the
Fourth Amendment to Lease."
3. Effective
as of the Commencement Date for Suite 570, Item 6 shall be amended by adding the
following:
"Basic
Rent for Suite 570: Ten Thousand Five Hundred Thirty-Three Dollars ($10,533.00)
per month.
Rental
Adjustments for Suite 570:
Commencing
twelve (12) months following the Commencement Date for Suite 570, the Basic Rent
for Suite 570 shall be Ten Thousand Nine Hundred Forty-Five Dollars ($10,945.00)
per month.
Commencing
twenty-four (24) months following the Commencement Date for Suite 570, the Basic
Rent for Suite 570 shall be Eleven Thousand Three Hundred Eighty-Three Dollars
($11,383.00) per month.
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Commencing
thirty-six (36) months following the Commencement Date for Suite 570, the Basic
Rent for Suite 570 shall be Eleven Thousand Eight Hundred Fifty Dollars
($11,850.00) per month.
Commencing
forty-eight (48) months following the Commencement Date for Suite 570, the Basic
Rent for Suite 570 shall be Twelve Thousand Three Hundred Sixteen Dollars
($12,316.00) per month."
4. Effective
as of the Commencement Date for Suite 570, Item 8 shall be amended by adding
"and Suite 570 comprising approximately 2,743 rentable square
feet."
5. Effective
as of the Commencement Date for Suite 570, Item 12 shall be deleted in its
entirety and the following substituted in lieu thereof:
"Parking:
Fifty-Three (53) unreserved vehicle parking spaces."
B. Commencement Date for Suite
570. As used herein, the "Commencement Date for Suite 570" shall occur on
the earlier of (a) the date Suite 570 is deemed ready for occupancy pursuant to
Section 111.C below, or (b) the date Tenant commences its business activities
within Suite 570. It is understood that the Lease Term with respect to Suite 570
shall be coterminous with that of the original Premises. Promptly following
request by Landlord, the parties shall memorialize on a form provided by
Landlord (the "Suite 570 Commencement Memorandum") the actual Commencement Date
for Suite 570; should Tenant fail to execute and return the Suite 570
Commencement Memorandum to Landlord within five (5) business days (or provide
specific written objections thereto within that period), then Landlord's
determination of the Commencement Date for Suite 570 as set forth in the Suite
570 Commencement Memorandum shall be conclusive.
X. Xxxxx in Possession. If
Landlord, for any reason whatsoever, cannot deliver possession of Suite 570 to
Tenant on or before the Estimated Commencement Date for Suite 570 set forth in
Section 11I.A.2 above, this Amendment shall not be void or voidable nor shall
Landlord be liable to Tenant for any resulting loss or damage. However, Tenant
shall not be liable for any rent for Suite 570 and the Commencement Date for
Suite 570 shall not occur until Landlord delivers possession of Suite 570 and
Suite 570 is in fact ready for occupancy as defined below, except that if
Landlord's failure to so deliver possession is attributable to any action or
inaction by Tenant (including without limitation any Tenant Delay described in
the Work Letter attached as Exhibit X to this Amendment), then Suite 570 shall
be deemed ready for occupancy, and Landlord shall be entitled to full
performance by Tenant (including the payment of rent), as of the date Landlord
would have been able to deliver Suite 570 to Tenant but for Tenant's delay(s).
Subject to the foregoing, Suite 570 shall be deemed ready for occupancy if and
when Landlord, to the extent applicable, (a) has put into operation all building
services essential for the use of Suite 570 by Tenant, (b) has provided
reasonable access to Suite 570 for Tenant so that it may be used without
unnecessary interference, (c) has substantially completed all the work required
to be done by Landlord in this Amendment, and (d) has obtained requisite
governmental approvals to Tenant's occupancy.
D. Operating Expenses.
Notwithstanding any contrary provision in the Lease, Landlord hereby agrees that
Tenant shall not be obligated to pay Landlord for Operating Expenses accruing in
connection with Suite 570 during the twelve (12) month period commencing as of
the Commencement Date for Suite 570.
E. Floor Plan of Premises.
Effective as of the Commencement Date for Suite 570, Exhibit A-2 attached to
this Amendment shall be added to Exhibit A of the Lease.
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F. Signage. Landlord, at its sole cost and
expense, shall affix and maintain a sign (restricted solely to Tenant's name as
set forth herein) adjacent to the entry door of Suite 570` and shall add an identification strip
in the lobby directory of the Building. Any subsequent changes to that initial signage shall be made at Tenant's
expense in accordance with Section 5.2
of the Lease.
G. SDN List. Tenant
hereby represents and warrants that neither Tenant nor any officer, director,
employee, partner, member or other principal of Tenant (collectively, "Tenant
Parties") is listed as a Specially Designated National and Blocked Person
("SDN") on the list of such persons and entities issued by the U.S. Treasury
Office of Foreign Assets Control (OFAC). In the event Tenant or any Tenant Party
is or becomes listed as an SDN, Tenant shall be deemed in breach of this Lease
and Landlord shall have the right to terminate this Lease immediately upon
written notice to Tenant.
H. Parking. Notwithstanding any contrary provision
in the Lease, effective as of the Commencement Date for Xxxxx 000, Xxxxxxxx
shall make available to Tenant, and Tenant may lease from Landlord up to nine (9)
additional unreserved parking spaces in connection with its leasing of Suite 570 (the "Suite 570
Allotted Stalls") (as reflected in the revised parking allotment set forth in
Section 111.A.6 of this Amendment). Landlord agrees
that Tenant may convert up to four (4) of the Suite 570 Allotted Stalls to
reserved stalls by providing written notice of such election to Landlord prior
to June 30, 2007 (the "Suite 570 Converted Stalls"). Tenant acknowledges that, if such written notice of
election is not delivered to Landlord prior to June 30, 2007, then the conversion of the
unreserved stalls to reserved stalls shall be subject to the month to month availability of such reserved
stalls as determined by Landlord and the reserved stalls shall be at Landlord's scheduled rates.
Subject to the foregoing and during the initial twelve (12) month period
commencing as of the Commencement Date for Suite 570 only, the monthly stall
charge for the Suite 570 Allotted Stalls shall be Seventy Dollars ($70.00) per
unreserved stall per month and, if applicable, One Hundred Dollars ($100.00) per
Suite 570 Converted Stall per month, which monthly rates shall increase by Five
Dollars ($5,00) for each unreserved stall and each Suite 570 Converted Stall on
each annual anniversary of the Commencement Date for Suite 570 through February
29, 2012. Following such date, the charges for all of the foregoing stalls shall
be at Landlord's scheduled parking rates from time to time.
I. Tenant Improvements.
Landlord hereby agrees to complete the Tenant Improvements for Suite 570 in
accordance with the provisions of Exhibit X, Work Letter, attached
hereto.
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IV.
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GENERAL.
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A. Effect of Amendments.
The Lease shall remain in full force and effect except to the 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.
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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. Authority. If Tenant
is a corporation, limited liability company or partnership, or is comprised of
any of them, each individual executing this Amendment for the corporation,
limited liability company or partnership represents that he or she is duly
authorized to execute and deliver this Amendment on behalf of such entity and
that this Amendment is binding upon such entity in accordance with its
terms.
F. Attorneys' Fees. The provisions of
the Lease respecting payment of attorneys' fees shall also apply to this
Amendment.
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V.
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EXECUTION.
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Landlord
and Tenant executed this Amendment on the date as set forth in "I. PARTIES AND
DATE." above.
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LANDLORD:
THE
IRVINE COMPANY LLC
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TENANT:
ACACIA
RESEARCH CORPORATION
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By: /s/ Xxxxxx X.
Case
Senior
Vice President, Leasing
Office
Properties
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By: /s/ Xxxxxx X.
Xxxxxx
Printed
Name: Xxxxxx X.
Xxxxxx
Title: President
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By: /s/ Xxxxxx X.
Xxxxxx
Vice
President, Operation
Office
Properties
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By: /s/ Xxxxxxx X.
Xxxxx
Printed
Name: Xxxxxxx X.
Xxxxx
Title: CFO
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THE
IRVINE COMPANY
000
Xxxxxxx Xxxxxx Xxxxx
0xx
Xxxxx
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EXHIBIT
A-2
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EXHIBIT
X
WORK
LETTER/BUILD TO SUIT
Landlord
shall cause its contractor to construct the tenant improvements for Suite 570 as
shown in the space plan (the "Plan") prepared by Gensler, dated October 16,
2006, and the cost estimate (the "Cost Estimate") prepared by DSC, Inc. and
dated October 23, 2006. Landlord's total contribution for the tenant
improvements, inclusive of space planning costs and Landlord's construction
management fee, shall not exceed Forty-One Thousand Six Hundred Fifty-Two
Dollars ($41,652.00) ("Landlord Contribution”), and any additional costs shall
be borne solely by Tenant and paid to Landlord prior to the commencement of
construction. Tenant understands and agrees that should the cost of the
completion of the tenant improvements be less than the maximum amount provided
for the Landlord Contribution, such savings shall inure to the benefit of
Landlord and Tenant shall not be entitled to any credit or payment or to apply
the savings toward additional work. Unless otherwise specified in the Plan or
Cost Estimate or hereafter agreed in writing by Landlord, all materials and
finishes utilized in constructing the tenant improvements shall be Landlord's
building standard. Should Landlord submit any additional plans, equipment
specification sheets, or other matters to Tenant for approval or completion,
Tenant shall respond in writing, as appropriate, within five (5) business days
unless a shorter period is provided herein. Tenant shall not unreasonably
withhold its approval of any matter, and any disapproval shall be limited to
items not previously approved by Tenant in the Plan or otherwise.
In the
event that Tenant requests in writing a revision in the Plan or in any other
plans hereafter approved by Tenant, then provided such change request is
acceptable to Landlord, Landlord shall advise Tenant by written change order of
any additional cost and/or Tenant Delay (as defined below) such change would
cause. Tenant shall approve or disapprove such change order in writing within
two (2) business days following its receipt. Tenant's approval of a change order
shall not be effective unless accompanied by payment in full of the additional
cost of the tenant improvement work resulting from the change order, regardless
of any unutilized portion of the Landlord Contribution. It is understood that
Landlord shall have no obligation to interrupt or modify the tenant improvement
work pending Tenant's approval of a change order.
Notwithstanding
any provision in the Lease to the contrary, if Tenant fails to comply with any
of the time periods specified in this Work Letter, requests any changes to the
work, fails to make timely payment of any sum due hereunder, furnishes
inaccurate or erroneous specifications or other information, or otherwise delays
in any manner the completion of the tenant improvements or the issuance of an
occupancy certificate (any of the foregoing being referred to in this Amendment
as a "Tenant Delay"), then Tenant shall bear any resulting additional
construction cost or other expenses and the Commencement Date for Suite 570
shall be deemed to have occurred for all purposes, including Tenant's obligation
to pay rent, as of the date Landlord reasonably determines that it would have
been able to deliver Suite 570 to Tenant but for the collective Tenant
Delays.
Landlord
shall permit Tenant and its agents to enter Suite 570 up to seven (7) days prior
to the Commencement Date for Suite 570 in order that Tenant may install its
furniture and telephone and data cabling equipment and perform any work to be
performed by Tenant hereunder through its own contractors, subject to Landlord's
prior written approval, and in a manner and upon terms and conditions and at
times satisfactory to Landlord's representative. The foregoing license to enter
Suite 570 prior to the Commencement Date for Suite 570 is, however, conditioned
upon the compliance by Tenant's contractors with all requirements imposed by
Landlord on third party contractors, including without limitation the
maintenance by Tenant and its contractors and subcontractors of workers'
compensation and public liability and property damage insurance in amounts and
with companies and on forms satisfactory to Landlord, with certificates of such
insurance being furnished to Landlord prior to proceeding with any such entry.
The entry shall be deemed to be under all of the provisions of the Lease except
as to the covenants to pay rent in connection with Suite 570. Landlord shall not
be liable in any way for any injury, loss or damage which may occur to any such
work being performed by Tenant, the same being solely at Tenant's risk. In no
event shall the failure of Tenant's contractors to complete any work in Suite
570 extend the Commencement Date for Suite 570.
Tenant
hereby designates Xxxx Xxxxxx or Xxxxxx Xxxxxxx, Telephone Nos. (000) 000-0000
or (000) 000-0000, respectively, as its representative, agent and
attorney-in-fact for the purpose of receiving notices, approving submittals and
issuing requests for changes, and Landlord shall be entitled to rely upon
authorizations and directives of such person(s) as if given by Tenant. Tenant
may amend the designation of its construction representative(s) at any time upon
delivery of written notice to Landlord.
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