Exhibit 4(j)
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
(1) 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.
(2) 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")
(3) Current Tenant now wishes to assign all its right, title and interest in
the Lease to Tenant and Tenant wishes to accept said Assignment.
(4) 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:
(a). Recitals: Landlord and Tenant agree that the above recitals are true
and correct and are hereby incorporated herein as though set forth in
full.
(b). 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.
(c). Term: The Term of the Lease shall be extended for the period
commencing on November 1, 2000 through October 31, 2010 (the "Extended
Term").
(d). 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.
(e). 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.
(f). 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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