EXHIBIT 10.8
FIRST AMENDMENT
FIRST AMENDMENT
THIS FIRST AMENDMENT (this "Amendment") is made and entered into as of
the 26th day of June, 2000, by and between PASADENA TOWERS, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY ("Landlord"), and ACACIA RESEARCH CORPORATION, A
CALIFORNIA CORPORATION ("Tenant").
W I T N E S S E T H:
A. WHEREAS, Landlord and Tenant are parties to that certain lease dated
the 30th day of April, 1998, for space currently containing
approximately 5,449 rentable square feet (the "Original Premises")
described as Suite No. 650 on the 6th floor of the building commonly
known as Pasadena Towers II and the address of which is 00 Xxxxx Xxxx
Xxxxxx, Xxxxxxxx Xxxxxxxxxx (the "Building") (the "Lease"); and
B. WHEREAS, Tenant has requested that additional space containing
approximately 1,570 rentable square feet described as Suite No. 660 on
the 6th floor of the Building shown on Exhibit A hereto (the "Expansion
Space") be added to the Original Premises and that the Lease be
appropriately amended and Landlord is willing to do the same on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant agree as
follows:
I. EXPANSION AND EFFECTIVE DATE. Effective as of the Expansion Effective
Date (as hereinafter defined), the Premises, as defined in the Lease,
is increased from 5,449 rentable square feet on the 6th floor to 7,019
rentable square feet on the 6th floor(s) by the addition of the
Expansion Space, and from and after the Expansion Effective Date, the
Original Premises and the Expansion Space, collectively, shall be
deemed the Premises, as defined in the Lease. The Term for the
Expansion Space shall commence on the Expansion Effective Date and end
on the Termination Date. The Expansion Space is subject to all the
terms and conditions of the Lease except as expressly modified herein
and except that Tenant shall not be entitled to receive any allowances,
abatements or other financial concessions granted with respect to the
Original Premises unless such concessions are expressly provided for
herein with respect to the Expansion Space.
A. The Expansion Effective Date shall be the date which is 60
days after the date Landlord delivers the Expansion Space to
Tenant, which date is anticipated to be September 1, 2000 (the
"Target Expansion Effective Date").
B. The Expansion Effective Date shall be delayed to the extent
that Landlord fails to deliver possession of the Expansion
Space for any reason, including but not limited to, holding
over by prior occupants. Any such delay in the Expansion
Effective Date shall not subject Landlord to any liability for
any loss or damage resulting therefrom. If the Expansion
Effective Date is delayed, the Termination Date under the
Lease shall not be similarly extended.
II. MONTHLY BASE RENTAL.
In addition to Tenant's obligation to pay Base Rental for the Original
Premises, Tenant shall pay Landlord the sum of $147,187.50 as Base
Rental for the Expansion Space in 39 monthly installments as follows:
A. 18 equal installments of $3,689.50 each payable on or before
the first day of each month during the period beginning
September 1, 2000 and ending February 28, 2002.
B. 21 equal installments of $3,846.50 each payable on or before
the first day of each month during the period beginning March
1, 2002 and ending November 30, 2003.
All such Base Rental shall be payable by Tenant in accordance with the
terms of Article IV of the Lease.
Landlord and Tenant acknowledge that the foregoing schedule is based on
the assumption that the Expansion Effective Date is the Target
Expansion Effective Date. If the Expansion Effective Date is other than
the Target Expansion Effective Date, the schedule set forth above with
respect to the payment of any installment(s) of Base Rental for the
Expansion Space shall be appropriately adjusted on a per diem basis to
reflect the actual Expansion Effective Date and the actual Expansion
Effective Date shall be set forth in a confirmation letter to be
prepared by Landlord. However, the effective date of any increases or
decreases in the Base Rental rate shall not be postponed as a result of
an adjustment of the Expansion Effective Date as provided above.
III. ADDITIONAL SECURITY DEPOSIT. Upon Tenant's execution hereof, Tenant
shall pay Landlord the sum of $3,689.50 which is added to and becomes
part of the Security Deposit, if any, held by Landlord as provided
under the Lease as security for payment of Rent and the performance of
the other terms and conditions of the Lease by Tenant. Accordingly,
simultaneous with the execution hereof, the Security Deposit is
increased from $13,186.58 to $16,876.08.
IV. TENANT'S PRO RATA SHARE. For the period commencing with the Expansion
Effective Date and ending on the Termination Date, Tenant's Pro Rata
Share for the Expansion Space is 0.7539%.
V. BASIC COSTS. For the period commencing with the Expansion Effective
Date and ending on the Termination Date, Tenant shall pay for Tenant's
Pro Rata Share of Basic Costs applicable to the Expansion Space in
accordance with the terms of the Lease, provided, however, during such
period, the Base Year for the computation of Tenant's Pro Rata Share of
Basic Costs applicable to the Expansion Space is 2000.
VI. IMPROVEMENTS TO EXPANSION SPACE.
A. CONDITION OF EXPANSION SPACE. Tenant has inspected the
Expansion Space and agrees to accept the same "as is" without
any agreements, representations, understandings or obligations
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on the part of Landlord to perform any alterations, repairs or
improvements, except as may be expressly provided otherwise in
this Amendment. Landlord and Tenant hereby acknowledge that
the Expansion Space is currently, as of the date hereof,
portion of a larger suite from which the Expansion Space shall
be demised. Landlord, at Landlord's sole cost and expense,
shall (i) construct 1 demising wall within the Expansion
Space, (ii) perform all work deemed reasonably necessary by
Landlord in connection with improvements to the adjacent
corridor in connection with the demising of the Expansion
Space, (iii) relocate existing electrical service panels as
Landlord deems reasonably necessary in connection with the
demising of the Expansion Space, and (iv) separate electrical
circuits and HVAC systems, without cross-zoning, as Landlord
deems reasonably necessary in connection with the demising of
the Expansion Space. All other work to be performed in
connection with the demising of the Expansion Space shall be
performed by Tenant pursuant to the terms of this Article VI.
B. COST OF IMPROVEMENTS TO EXPANSION SPACE. Provided Tenant is
not in default, Tenant shall be entitled to receive an
improvement allowance (the "Expansion Improvement Allowance")
in an amount not to exceed $18,840.00 (i.e., $12.00 per
rentable square foot of the Expansion Space) to be applied
toward the cost of performing initial construction, alteration
or improvement of the Expansion Space, including but not
limited to the cost of space planning, design and related
architectural and engineering services. In the event the total
cost of the initial improvements to the Expansion Space
exceeds the Expansion Improvement Allowance, Tenant shall pay
for such excess upon demand. The entire unused balance of the
Expansion Improvement Allowance, if any, shall accrue to the
sole benefit of Landlord. Landlord shall pay such Expansion
Improvement Allowance directly to the contractors retained to
perform the construction, design or related improvement work
to the Expansion Space. Landlord shall be entitled to deduct
from the Expansion Improvement Allowance a management
administration fee in connection with the initial improvements
to the Expansion Space in an amount equal to 3% of the total
hard construction costs of such improvements.
C. RESPONSIBILITY FOR IMPROVEMENTS TO EXPANSION SPACE. Any
construction, alterations or improvements to the Premises
shall be performed by Tenant using contractors selected by
Tenant and approved by Landlord and shall be governed in all
respects by the provisions of Article X of the Lease; provided
that Tenant shall use the subcontractors designated by
Landlord in connection therewith.
VII. EARLY ACCESS TO EXPANSION SPACE. During any period that Tenant shall be
permitted to enter the Expansion Space prior to the Expansion Effective
Date (e.g., to perform alterations or improvements, if any), Tenant
shall comply with all terms and provisions of the Lease, except those
provisions requiring payment of Base Rental or Additional Base Rental
as to the Expansion Space. If Tenant takes possession of the Expansion
Space prior to the Expansion Effective Date for any reason whatsoever
(other than the performance of work in the Expansion Space with
Landlord's prior approval), such possession shall be subject to all the
terms and conditions of the Lease and this Amendment, and Tenant shall
pay Base Rental and Additional Base Rental as applicable to the
Expansion Space to Landlord on a per diem basis for each day of
occupancy prior to the Expansion Effective Date.
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VIII. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that, effective
as of the date hereof (unless different effective date(s) is/are
specifically referenced in this Section), the Lease shall be amended in
the following additional respects:
A. Notwithstanding anything to the contrary set forth in the
Lease, as of the date of this Amendment, any notices to
Landlord must be sent, transmitted, or delivered, as the case
may be, to the following addresses:
Landlord: With a copy to:
PASADENA TOWERS, L.L.C., A DELAWARE LIMITED PASADENA TOWERS, L.L.C., A DELAWARE
LIABILITY COMPANY LIMITED LIABILITY COMPANY
c/o Equity Office Properties Trust c/o EOPMC of California, Inc.
Two North Riverside Plaza, Suite 2200 Office of the Building Pasadena Towers
Xxxxxxx, Xxxxxxxx 00000 000 Xxxx Xxxxxxxx Xxxxxxxxx
Attention: Regional Counsel-Pacific Region Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Building Manager
Rent (defined in Section IV.A) is payable to the order of
PASADENA TOWERS, L.L.C. at the following address: FILE #56184,
XXX XXXXXXX, XXXXXXXXXX 00000-0000.
B. Commencing on the Expansion Effective Date and ending on the
Termination Date, without reducing the number of parking
passes made available to Tenant with respect to the Original
Premises as provided in Exhibit F to the Lease, Tenant shall
have the right to rent up to 4 unreserved parking passes in
the Building parking structure in connection with Tenant's
lease of the Expansion Space, in accordance with the terms of
Exhibit F to the Lease. Tenant shall pay Landlord the
prevailing monthly charges established from time to time for
parking in the Building parking structure, payable in advance,
with Tenant's payment of monthly Base Rental, which rates are
currently, as of the date of this Amendment, $65.00 per month
for each unreserved parking pass.
C. Tenant shall also be entitled to 1 line on the building
directory for each 1,000 rentable square feet of the Expansion
Space. Tenant shall not be charged a fee for the initial
installation of any names on the Building directory. Tenant
shall, however, be required to pay Landlord's then standard
fee for any additional names to be added to the Building
directory or any replacement of previously existing names.
IX. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There
have been no additional oral or written representations or
agreements. Under no circumstances shall Tenant be entitled to
any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Premises, or any similar
economic incentives that may have been provided Tenant in
connection with entering into the Lease, unless specifically
set forth in this Amendment.
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B. Except as herein modified or amended, the provisions,
conditions and terms of the Lease shall remain unchanged and
in full force and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment
shall govern and control.
D. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for
such an offer by Tenant. Landlord shall not be bound by this
Amendment until Landlord has executed and delivered the same
to Tenant.
E. The capitalized terms used in this Amendment shall have the
same definitions as set forth in the Lease to the extent that
such capitalized terms are defined therein and not redefined
in this Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt
with no broker in connection with this Amendment other than
Xxxxxxx Realty (the "Broker"). Tenant agrees to indemnify and
hold Landlord, its members, principals, beneficiaries,
partners, officers, directors, employees, mortgagee(s) and
agents, and the respective principals and members of any such
agents (collectively, the "Landlord Related Parties") harmless
from all claims of any brokers other than Broker claiming to
have represented Tenant in connection with this Amendment.
Landlord hereby represents to Tenant that Landlord has dealt
with no broker in connection with this Amendment. Landlord
agrees to indemnify and hold Tenant, its members, principals,
beneficiaries, partners, officers, directors, employees, and
agents, and the respective principals and members of any such
agents (collectively, the "Tenant Related Parties") harmless
from all claims of any brokers claiming to have represented
Landlord in connection with this Amendment.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
LANDLORD:
PASADENA TOWERS, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: EOP-Pasadena Towers, L.L.C., a
Delaware limited liability company, its
administrative managing member
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general partner
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Vice President
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TENANT:
ACACIA RESEARCH CORPORATION,
A CALIFORNIA CORPORATION
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: COO & CFO
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By:
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Name:
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Title:
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EXHIBIT A
Attach Floor Plan
Showing Expansion Space
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