EXHIBIT 10.8.1
SECOND AMENDMENT TO LEASE
AND AGREEMENT AND RELEASE
This Second Amendment To Lease and Agreement and Release (the
"Amendment") is dated as of May 25, 1995, for reference purposes only, and is
made between Xxxxx X. Xxxxxx, in her capacity as receiver of the estate of
Orchard Investment Company Number 701, a California general partnership as
per appointment by the Santa Xxxxx County Superior Court in case no. CV746085
on December 23, 1994 ("Receiver"), Orchard Investment Company Number 701, a
California general partnership ("Original Landlord"), Xxxxxxx Xxxxxxxxxx, a
California corporation ("Orchard"), and Ultratech Stepper, Inc., a Delaware
corporation ("Tenant") with reference to the following facts and
circumstances, which are conclusively agreed between the parties:
A. Original Landlord and Tenant are parties to a lease dated for
reference purposes as of May 17, 1994, together with a First Amendment
to Lease dated as of October 18, 1994 (collectively referred to as the
"Lease"). All capitalized words having an assigned meaning in the Lease
shall continue to have such meaning in this Amendment unless explicitly
modified.
B. Pursuant to the Lease, Tenant has leased from Receiver 53,393
rentable square feet of space (the "Premises"), comprised of 14,532 rentable
square feet at 0000 Xxxxxx Xxxx, Xxx Xxxx, Xxxxxxxxxx (the "Original
Premises") and 38,861 rentable square feet of space at 2815-2835 Zanker Road,
San Jose, California (the "Expansion Space").
C. Tenant is currently occupying a portion of the Expansion Space (the
"Occupied Premises") at 2825 Zanker Road and has undertaken tenant
improvements to that portion of the Expansion Space located at 2815 Zanker
Road (the "Construction Premises").
D. In the course of constructing tenant improvements to the
Construction Premises, Tenant discovered asbestos containing materials
("ACM") in the mastic that had been used on the underside of certain non-
asbestos containing floor tiles.
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E. Tenant has had an asbestos investigation of the Premises conducted
by ProTech Consulting and Engineering, a written report of which is dated
March 17, 1995 (the "Report"), The Report identifies an area of the
Construction Premises where ACM mastic was used under non-asbestos
containing tile (the "Construction Premises ACM Area"). The Report further
identifies an area of the Occupied Premises where ACM mastic was used under
non-asbestos containing tile (the "Occupied Premises ACM Area"). The ACM in
both said Areas is referred to collectively as the "Identified ACM."
F. Tenant's improvement plans for the Construction Premises require the
current removal of the ACM in the Construction Premises ACM Area.
G. Upon discovery of the ACM, Tenant requested that Original Landlord
assume the responsibility for removing ACM from the entire Expansion Space,
wherever located, including, without limitation, ACM in any mastic on the
underside of any floor tiles located in the Expansion Space, and further
requested rent abatement and reimbursement of certain out-of-pocket expenses
incurred by Tenant in storage of equipment, relocation of business
operations, delay in construction, and otherwise resulting from Tenant's
decision not to move forward with construction of its tenant improvements
in the Construction Space.
H. Original Landlord disputed Tenant's claims.
I. Original Landlord and Tenant have agreed to resolve their
dispute as provided herein.
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J. Receiver is prepared to contribute certain funds from the
receivership estate towards resolution of Tenant's claims and is otherwise
prepared to consent to and approve the terms of this Amendment.
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Now, therefore, in consideration of all of the foregoing facts and
circumstances, and for good and valuable consideration, the receipt of which
is acknowledged by each party, Original Landlord, Receiver and Tenant agree
to and do amend the Lease as follows and Orchard and Original Landlord agree
to perform as follows:
1. REMOVAL OF ACM FROM THE CONSTRUCTION PREMISES
Upon full execution of this Amendment, Receiver will immediately direct
its property manager, Orchard to cause its licensed contractors under the
supervision and control of Orchard to remove the ACM from the Construction
Premises ACM Area (pursuant to the provisions of Paragraph 4 hereof).
Orchard shall cause this work to be performed in a good and workmanlike
manner, in compliance with all applicable law, and within seven (7) business
days of the date this Agreement is fully executed. Tenant shall not be
required to bear any of the cost thereof, and such cost shall not be billed
to Tenant as a part of the Common Operating Expenses of the Building. Upon
submission of Orchard's billing for such work, Receiver will reimburse
Orchard, solely from the proceeds of the Receivership Estate for such work to
a maximum of $7,500.00, and any expenses in excess of such sum shall be the
responsibility of Original Landlord and Orchard.
2. LIABILITY FOR OBLIGATIONS
Except as expressly provided in this Amendment to the contrary, the
obligations of Original Landlord and Orchard under this Amendment are the
personal obligations of the Original Landlord and Orchard, and not of the
receiver or any successor in interest to the interest of landlord under the
Lease, other than Original Landlord. Tenant agrees to look solely to the
personal assets of Original Landlord and Orchard, and not to the assets of
Receiver, the receivership estate of Receiver or any successor landlord under
the Lease, other than Original Landlord, for satisfaction of the obligations
of Original Landlord and Orchard under this Amendment. As used in this
Amendment, the term "Landlord" shall mean the Original Landlord and any
successor in interest to the interest of landlord under the Lease including,
without limitation, Receiver and any successor in interest to Receiver
following termination of the receivership
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estate. Original Landlord and Orchard agree to indemnify, defend and hold
harmless (a) the Receiver and any successor landlord under the Lease with
regard to any claims made by Tenant arising from or relating to this
Amendment, including reasonable attorneys' fees and costs, provided that such
claims arise from obligations assumed by Original Landlord and Orchard
hereunder, and (b) Tenant against any third party claims (including claims
made by any government agency) arising from or relating to breach of the
obligations of Orchard and/or Original Landlord arising under this Amendment.
3. REMOVAL OF ACM FROM THE OCCUPIED PREMISES
Tenant agrees that any tenant improvements to be constructed in the
Occupied Premises by Tenant which will require removal or disturbance of ACM
will require Landlord's permission given under the provisions of the Lease.
Landlord will approve or disapprove such proposed construction based on its
ordinary standards and will not make the removal of ACM a criteria for such
decisions.
If Tenant's designs for tenant improvements in the Occupied Premises
require the removal or disturbance of ACM in the Occupied Premises, Tenant
will notify Landlord in writing at the time Tenant submits its plans and
specifications to Landlord for approval.
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If plans and specifications are submitted calling for the disturbance or
removal of the ACM in the Occupied Premises, Original Landlord agrees to
undertake (in a good and workmanlike manner, and in compliance with all laws)
and pay for the removal of the Identified ACM from the Occupied Premises
(pursuant to the provisions of Paragraph 4 hereof), moving with reasonable
diligence to retain contractors hired by Original Landlord to perform such
services and to obtain permits for the construction if necessary. The cost
of such activities shall be allocated as follows:
a. As to plans for construction of tenant improvements in the Occupied
Space submitted on or before December 31, 1995, Original Landlord will pay
the cost of removal of the Identified ACM from the Occupied Premises ACM
Area, without charge to
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Tenant. If plans and specifications are submitted for such construction on or
after January 1, 1996 and on or before December 31, 1996, then Original
Landlord will pay the cost of such removal, but if Original Landlord's cost
(including the amount paid to consultants, contractors, and subcontractors,
inspection fees, permit fees, and other amounts paid to governmental
entities or otherwise reasonably expended in accomplishing the task, but not
including Original Landlord's internal costs of construction management)
exceeds $7,500.00, Original Landlord will notify Tenant of the amount of the
excess, and Tenant will pay to Original Landlord an amount equal to the
excess, which shall be due from Tenant to Original Landlord within
thirty (30) days thereafter (and will be subject to the late fee provided for
in the Lease for Additional Rent, without further notice, if the sum is not
paid within such period). Under these circumstances, the costs of the
removal paid by Original Landlord shall not be billed to Tenant as part of
the Building's Common Operating Expenses. Original Landlord represents that
it has received an acceptable bid for the performance of this work at a cost
(as defined above) equal to or less than $7,500.00, which bid is good until
December 31, 1995.
b. If the plans and specifications are submitted on or after January 1,
1997, then Original Landlord will perform the removal (in a good and
workmanlike manner, and in compliance with all laws) and directly pay the
cost thereof. Upon completion of the removal, Original Landlord will notify
Tenant of the cost (which shall include the amount paid to consultants,
contractors, and subcontractors, inspection fees, permit fees, and other
amounts paid to governmental entities or otherwise reasonably expended in
accomplishing the task, and Original Landlord's customary and reasonable fee
of 4% of all construction costs). Tenant will pay to Original Landlord an
amount equal to the amount of Original Landlord's cost as above defined,
which shall be due from Tenant to Original Landlord within thirty (30) days
thereafter (and will be subject to the late fee provided for in the Lease
for Additional Rent, without further notice, if the sum is not paid within
such period).
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Without regard to when ACM is removed from the Occupied Premises, Tenant
shall have no claims against any Landlord, the Receiver, future owners, nor
Orchard, Original Landlord, or its partners, nor against any officer,
director, partner, or employee thereof, for rent abatement, temporary
unavailability of space, delay in other construction, losses from interrupted
business operations, or other damages resulting from the presence or removal
of the ACM, and Tenant waives any and all such claims, provided, that Tenant
does not give up any such claims against Original Landlord resulting from
Original Landlord's or Orchard's failure to accomplish the work in a timely
manner as provided herein, and in a good and workmanlike manner, and in
compliance with all laws.
Notwithstanding anything in this Paragraph 3 to the contrary, if the
receivership estate of the Receiver is terminated and the landlord's interest
under the Lease is transferred to a party other than Original Landlord, the
foregoing provisions of this Paragraph 3, other than and excepting the first
two paragraphs hereof, shall be null and void and of no further force and
effect as against Receiver and its successor(s) in ownership of the Premises.
Tenant shall make no claims of default under the Lease or breach of this
Amendment against Receiver or any successor owner of the Premises other than
Original Landlord, in regard to any failure of Original Landlord to carry out
its obligations hereunder.
4. SCOPE OF REMOVAL DUTIES
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This Agreement shall not be deemed to require Orchard or Original Landlord to
provide or pay for any other construction services other than the removal of
the Identified ACM and the tile under which the mastic lies. Tenant will
remove carpet covering the Identified ACM, and will provide the area where
the Identified ACM must be removed with all future and fixtures removed,
ready for work to be performed. Orchard and Original Landlord shall not be
required to remove carpeting over tile which is attached by an ACM mastic,
nor to prepare the surface after removal, nor to replace tile or carpet, nor
to prepare the space for work. Tenant will cooperate to make the space
available for safe removal of asbestos, including vacating the space as
required by the asbestos removal subcontractor, controlling HVAC systems and
ventilation, and in all other ways reasonably requested of Tenant.
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5. RELEASE
Tenant agrees that the foregoing obligations and promises, as well as the
performance of the removal of the Construction Premises ACM required by
Paragraph I hereof, are in complete satisfaction of all obligations of
Landlord, Original Landlord and its partners, and Orchard relating to the
Identified ACM, and that in return for the promises and obligations which are
contained herein and such performance, Tenant releases Landlord, Original
Landlord, Orchard, and their respective officers, directors, agents,
servants, employees, attorneys, shareholders, partners, joint venturers, and
all other persons associated with any of them, from any and all claims,
liabilities, obligations, demands, actions, causes of action, and/or lawsuits
arising out of the presence of the Identified ACM on the Premises. Tenant
specifically releases all claims for delay in construction or occupancy,
storage of furniture and fixtures, interruption or delay of business, and
rent abatement. Upon execution hereof, Tenant shall pay all Rent currently
due, and upon receipt of same, Receiver will waive any claim to late charges
in regards to the Rent paid.
The claims released include all claims of Tenant of whatever nature
against any Landlord or Original Landlord arising from the presence of the
Identified ACM on the Premises, whether now known or unknown, whether
suspected or unsuspected, whether latent or patent, whether such claims are
or could be anticipated by Tenant, and whether such claims have arisen now,
or arise in the future (if they relate to acts or omissions of the party
which have taken place as of the date of this release). This Amendment shall
survive the execution of this release, and nothing herein shall be deemed to
waive any rights of any party against the others for fraud, wilful
wrongdoing, or violation of law which occurs after the effective date hereof.
Tenant enters into this release with the knowledge that there may be
unknown, unanticipated, or unsuspected claims arising from the Identified ACM
which are released and waived by executing this release, and that there is a
risk that Tenant will incur or suffer losses, damages, or injuries which are
released hereby or which would, but for this release, be the legal
responsibility of one or more of the party(s) released hereby. Tenant agrees
to accept the above-described risks with the understanding that THIS RELEASE
APPLIES TO ALL
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UNKNOWN OR UNANTICIPATED RESULTS OF THE PRESENCE OF THE IDENTIFIED ACM
DESCRIBED ABOVE, AS WELL AS THOSE KNOWN AND ANTICIPATED, and Tenant agrees to
accept and bear full responsibility for any losses, injuries, or damages
which are suffered or incurred by Tenant as a result of unknown,
unanticipated, or unsuspected claims, losses, damages, or injuries.
Tenant waives and gives up all rights or benefits which might otherwise
accrue to Tenant, now or in the future, under the terms of California Civil
Code Section 1542, which reads as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of execution of
the release, which if known by him must have materially affected his
settlement with the debtor."
All parties acknowledge that this Amendment reflects a settlement of
conflicting views on responsibility for ACM in the Expansion Space, and that
each party enters into the Amendment and accepts the obligations set forth
herein as a compromise and settlement of such disputes. It shall not be
construed as an admission of liability or responsibility by any party hereto.
The covenants, terms, and conditions of this Amendment shall survive
execution hereof, and nothing
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contained herein shall be deemed a release of any claim, liability, or cause
of action against a party which is obligated to perform acts hereunder
arising out of that party's failure to so perform. No default or failure to
perform of Orchard or Original Landlord shall be deemed to be a default under
the Lease.
6. ACCEPTANCE OF PREMISES
Tenant has had a complete opportunity to inspect and investigate the Premises in
the course of its preparations for construction and its investigation of ACM on
the Premises. Original Landlord represents, without undertaking any
investigation, that it has disclosed to Tenant any actual knowledge possessed by
Original Landlord in regard to ACM in the Expansion Space. Except for the
presence of Hazardous Materials, Tenant accepts the Premises "AS-IS" and
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relieves any Landlord, including without limitation Original Landlord, of any
further disclosure obligations relating to the Premises and the Building,
their construction, the materials used in construction, the type, nature, and
quality of tenant improvements installed therein, and otherwise relating to
the Premises and the Building. Tenant acknowledges that, except for
Hazardous Materials as defined in the Lease, the risk of latent, unknown,
unforeseen, concealed, hidden, undiscovered, or undiscoverable matters
relating to the Premises and the Building, (including but not limited to
defects and dangerous conditions) has entirely shifted to Tenant,
notwithstanding any Landlord's constructive, or inquiry knowledge of such
matters, and notwithstanding any duty on Receiver's part to inspect or
investigate the Premises and the Building and disclose matters which are or
should reasonably have been discovered, and Tenant accepts such risk.
Nothing in this Paragraph 6 shall be deemed to change, expand, or contract
the express obligations of the parties as set forth in the Lease in regard to
maintenance or repair of the Building. Tenant's liability for any and all
Hazardous Materials other than the Identified ACM on the Premises shall
continue to be governed solely by the provisions of the Lease relating to
Hazardous Materials.
Nothing contained in this Amendment shall be deemed to diminish, waive,
or restrict rights which Tenant otherwise might have, if any, to seek
indemnity from Original Landlord for any third party claims or liabilities
(including claims by governmental entities) with respect to the Identified
ACM.
7. FIRST REFUSAL SPACE
The Lease grants Tenant a right of first refusal on certain space identified as
the First Refusal Space. Original Landlord and Tenant currently believe it is
possible that there is further ACM in the First Refusal Space. At such time as
the First Refusal Space is offered for lease, if Landlord proposes to lease the
First Refusal Space to a third party on agreed business terms, and if such terms
do not include a provision whereby Landlord is obligated to remove the ACM from
the First Refusal Space at Landlord's own expense, then Landlord will accept
Tenant's exercise of its right of first refusal with the condition that, upon
request of Tenant in connection with the exercise of its right of first refusal,
Landlord will perform the removal of such ACM, at the sole cost and expense of
Tenant,
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(which shall include the amount paid to consultants, contractors, and
subcontractors, inspection fees, permit fees, and other amounts paid to
governmental entities or otherwise reasonably expended in accomplishing the
task, and a customary and reasonable fee of 4% of all construction costs).
Unless otherwise agreed in advance by Landlord in writing, Tenant shall pay
for such cost and expenses prior to and as a condition of Landlord's
commencement of any asbestos removal activities.
8. CONTINUING OBLIGATION
Except as expressly set forth in this Amendment, all terms and conditions of the
Lease remain in full force and effect, and all terms and conditions of the Lease
are incorporated herein as though set forth at length.
9. EFFECT OF AMENDMENT
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This Amendment modifies the Lease. In the event of any conflict or
discrepancy between the Lease and/or any other previous documents between the
parties and the provisions of this Amendment, then the provisions of this
Amendment shall control. Except as modified herein, the Lease shall remain
in full force and effect. All capitalized terms used herein have the meaning
assigned to such terms in the Lease.
10. AUTHORITY
Each individual executing this Amendment on behalf of Tenant represents and
warrants that he or she is duly authorized to and does execute and deliver
this Amendment pursuant to express authority from Tenant pursuant to and in
accordance with the By-Laws and organizational document.
11. ENTIRE AGREEMENT
This is the entire agreement between the parties relating to the subject matter
addressed herein, and all previous discussions and negotiations are merged into
this Amendment. No modification hereof shall be valid unless in writing, signed
by the party to be charged.
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12. COSTS AND ATTORNEY'S FEES
Tenant shall bear its own attorney's fees and costs attendant upon the
resolution of this dispute AND the negotiation and execution of this Amendment,
and Tenant shall not be responsible for such attorneys' fees and costs of any
other party to this Amendment.
Dated: May 25, 1995 ORCHARD INVESTMENT COMPANY NUMBER 701,
A CALIFORNIA GENERAL PARTNERSHIP
BY: NELO, A CALIFORNIA GENERAL
PARTNERSHIP
By: /s/Xxxxx X. Xxxxx
------------------------------------
XXXXX X. XXXXX, ITS GENERAL PARTNER
XXXXXXX XXXXXXXXXX, A CALIFORNIA
CORPORATION
By: /s/Xxxxx X. Xxxxx
------------------------------------
XXXXX X. XXXXX, PRESIDENT AND CHAIRMAN
Dated: May 25, 1995
ULTRATECH STEPPER, INC., A DELAWARE
CORPORATION
/s/Xxxx Xxxxxx
---------------------------------------
By: Xxxx Xxxxxx Vice President Corporate
Services
-----------------------------------
[Print Name and Title]
XXXXX X. XXXXXX, in her capacity as
Receiver of the Estate of Orchard
Investment Company Number 701, a
California general partnership as per
appointment by the Santa Xxxxx County
Superior Court in case no. CV746085 on
12/23/94.
/s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx Xxxxxx, RECEIVER
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