First Amendment to Lease Agreement
Exhibit 10.1
First Amendment to Lease Agreement
This First Amendment to Lease Agreement (the “Amendment”) is made and entered into to be effective
as of July 30, 2007, by and between SUNNYVALE BUSINESS PARK I, LLC, a Delaware limited liability
company, and SUNNYVALE BUSINESS PARK SUB, LLC, a Delaware limited liability company (collectively,
“Landlord”), and LEADIS TECHNOLOGY, INC., a Delaware corporation (“Tenant”), with reference to the
following facts:
Recitals
A. Sunnyvale Business Park, a California limited partnership (the “Original Landlord”), and Tenant
have entered into that certain Lease Agreement dated as of December 23, 2004 (the “Lease”), for the
leasing of certain premises consisting of approximately 11,840 rentable square feet located at ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the “Original Premises”) as such Original
Premises are more fully described in the Lease.
B. In June 2005, Original Landlord transferred its interest to Sunnyvale Park II, LLC, Sunnyvale
Park III, LLC and Sunnyvale Park IV, LLC, as tenants in common (“Interim Landlord”) and Interim
Landlord assumed the obligations of Original Landlord under the Lease to the extent such
obligations first arose after June 30, 2005. In December 2005, Interim Landlord transferred their
interests in the real property of which the Premises is a part, and said interests are now owned
and held by Landlord and Landlord assumed the obligations of Interim Landlord under the Lease to
the extent such obligations first arise and accrue on or after December 12, 2005.
C. Landlord and Tenant now wish to amend the Lease to provide for, among other things, the
expansion of the Original Premises to include those certain premises consisting of approximately
2,999 rentable square feet located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
(the “Expansion Premises”), which Expansion Premises are depicted on the floor plan attached hereto
and made a part hereof as Exhibit A, 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:
1. Recitals: Landlord and Tenant agree that the above recitals are true and correct
and are hereby incorporated herein as though set forth in full.
2. Term: Landlord and Tenant acknowledge and agree that the Lease Commencement Date
is March 1, 2005 and the Expiration Date is May 31, 2010.
3. Premises:
3.1 Commencing on the later of: (a) August 1, 2007, or (b) the date Landlord substantially
completes the tenant improvements described in Paragraph 6 below (the “EP Commencement Date”) the
Original Premises shall be expanded to include the Expansion Premises.
3.2 Tenant hereby acknowledges that the Expansion Premises are presently being occupied by
Kenati Technologies, Inc. (the “Existing Tenant”). Notwithstanding anything to the contrary in
this Amendment, Landlord’s obligation to deliver possession of the Expansion Premises to Tenant by
the EP Commencement Date is contingent upon the Existing Tenant vacating the Expansion Premises and
surrendering possession thereof to Landlord by August 20, 2007. In the event Existing Tenant fails
to timely vacate the Expansion Premises and Landlord is unable to complete the tenant improvements
described in Paragraph 6 by August 31, 2007 as a result thereof, each of Landlord and Tenant shall
have the right, in Landlord’s and Tenant’s sole discretion, to terminate this Amendment, in which
event the parties shall be relieved of all obligations under this Amendment except for those
obligations which expressly survive the expiration or sooner termination of this Amendment. If
Landlord cannot deliver to Tenant possession of the Expansion Premises with the tenant improvements
described in Paragraph 6 below substantially complete by August 31, 2007 due to no fault of its
own, Landlord shall neither be subject to any liability nor shall the validity of the Lease or this
Amendment be affected. Landlord shall promptly notify Tenant in writing if the Existing Tenant
fails to timely vacate the Expansion Premises and Landlord reasonably believes that it will not be
able to substantially complete the tenant improvements by August 31, 2007. From and after the EP
Commencement Date, the Base Rent for both the Original Premises and the Expansion Premises shall be
as set forth in Paragraph 4 below.
3.3 For purposes of the Lease, from and after the EP Commencement Date, the “Premises” as
defined in Section 1.1 of the Lease and the Summary shall mean and refer to the aggregate of the
Original Premises and the Expansion Premises consisting of a combined total of approximately 14,839
rentable square feet. Accordingly, from and after the EP Commencement Date, all references in this
Amendment and in the Lease to the term “Premises” shall mean and refer to the Original Premises and
the Expansion Premises. Landlord and Tenant hereby agree that for purposes of the Lease, from and
after the EP Commencement Date, the rentable square footage area of the Premises shall be
conclusively deemed to be 14,839 rentable square feet. In addition to the foregoing, it is the
parties express intention that the balance of the Term of the Lease for the Original Premises and
the Expansion Premises be coterminous with the Expiration Date of the initial Term as specified in
the Lease and that any option or renewal term described in the Lease shall be applicable to both
the Premises and the Expansion Premises.
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4. Base Rent: The Summary and Article 3 of the Lease are hereby modified to provide
that during the Term of the Lease the monthly Base Rent payable by Tenant to Landlord, in
accordance with the provisions of Article 3 of the Lease shall be as follows:
| Original Premises | Expansion Premises | Aggregate Amount of | |||||||||||||
| Period | Monthly Base Rent | Monthly Base Rent | Monthly Base Rent | ||||||||||||
3/1/05 – 5/31/05 |
$ | 0.00 | $ | 0.00 | $ | 0.00 | |||||||||
6/1/05 – 5/31/06 |
$ | 12,195.20 | $ | 0.00 | $ | 12,195.20 | |||||||||
6/1/06 – 5/31/07 |
$ | 12,668.80 | $ | 0.00 | $ | 12,668.80 | |||||||||
6/1/07 – 7/31/07 |
$ | 13,142.40 | $ | 0.00 | $ | 13,142.40 | |||||||||
8/1/07 – 8/31/07 |
$ | 13,142.40 | $ | 0.00 | $ | 13,142.40 | |||||||||
9/1/07 – 5/31/08 |
$ | 13,142.40 | $ | 7,197.60 | $ | 20,340.00 | |||||||||
6/1/08 – 5/31/09 |
$ | 13,616.00 | $ | 7,497.50 | $ | 21,113.50 | |||||||||
6/1/09 – 4/30/10 |
$ | 14,089.60 | $ | 7,797.40 | $ | 21,887.00 | |||||||||
5/1/10 – 5/31/10 |
$ | 14,089.60 | $ | 7,197.40 | $ | 21,287.00 | |||||||||
Landlord hereby agrees to waive the requirement that Tenant pay Landlord Base Rent as
specified herein for the Expansion Premises for the first (1st) month following the EP
Commencement Date. Notwithstanding the provisions of this Paragraph 4, Tenant’s obligation to pay
Rent with respect to the Expansion Premises shall not commence until the EP Commencement Date.
Promptly after the EP Commencement Date, Landlord and Tenant shall execute a written amendment to
the Lease, wherein the parties shall specify the actual EP Commencement Date. Tenant shall execute
and return such amendment to Landlord within fifteen (15) days after Tenant’s receipt thereof. If,
at any time, Tenant is in default of any term, condition or provision of the Lease or this
Amendment, to the fullest extent permitted by law, any express or implicit waiver by Landlord of
Tenant’s requirement to pay Base Rent during any period of time from and after the Lease
Commencement Date shall be null and void and Tenant shall immediately pay to Landlord all Base Rent
so expressly or implicitly waived by Landlord.
5. Advance Rent: Concurrently with Tenant’s execution of this Amendment, Tenant shall
pay to Landlord the amount of Nine Thousand Two Hundred Thirty-Six and 92/100 Dollars ($9,236.92),
which shall represent Tenant’s first monthly installment of Base Rent and Additional Rent payable
for the Expansion Premises.
6. Condition of the Expansion Premises: Subject to the provisions of Paragraph 3
above, on the EP Commencement Date Landlord shall deliver to Tenant possession of the Expansion
Premises in its then existing condition and state of repair, “AS IS”, and Landlord shall not be
obligated to provide or pay for any improvement, remodeling or refurbishment work or services
related to the improvement, remodeling or refurbishment of the Expansion Premises except that
Landlord shall: (i) remove the demising wall between Suite 200 and Suite 220 and repair all damage
to the Premises incurred in connection therewith (including any damage to flooring, walls,
electrical systems and HVAC caused by such removal work); (ii) provide Tenant with use of all
cubicles and wiring existing in the Expansion Premises as of the date hereof, provided such use
shall be subject to all of the terms and conditions of Article 25 of the Lease; (iii) reconfigure
the cubicle layout and wiring within the Expansion Premises as reasonably requested by Tenant and
approved by Landlord; (iv) professionally clean the Expansion Premises; (v) touch-up paint in the
Expansion Premises as needed to match the Original Premises; and (vi) repair or replace, if
necessary, any damaged or stained ceiling tiles and window blinds in the Expansion Premises. By
taking possession of the Expansion Premises, Tenant shall be deemed to have accepted the Expansion
Premises in good condition and state of repair with all of tenant improvement work required to be
performed by Landlord pursuant to this Paragraph 6 complete. Tenant expressly acknowledges and
agrees that neither Landlord nor any of Landlord’s agents, representatives or employees has made
any representations as to the suitability, fitness or condition of the Expansion Premises for the
conduct of Tenant’s business or for any other purpose, including without limitation, any storage
incidental thereto, or for any other purpose. Any exception to the foregoing provisions must be
made by express written agreement signed by both parties. Tenant acknowledges that no
representations or warranties of any kind, express or implied, respecting the condition of the
Expansion Premises, Building, or Park or have been made by Landlord or any agent of Landlord to
Tenant, except as expressly set forth herein.
7. Security Deposit: Concurrent with its execution of this Amendment, Tenant shall
deliver to Landlord the sum of Seven Thousand Eight Hundred and 00/100 Dollars ($7,800.00) (the “EP
Security Deposit”). The EP Security Deposit shall be added to the Security Deposit presently being
held by Landlord under the Lease in the amount of Twenty Thousand and 00/100 Dollars ($20,000.00)
(the “Original Security Deposit”). The aggregate amount of the EP Security Deposit and the Original
Security Deposit is Twenty-Seven Thousand Eight Hundred and 00/100 Dollars ($27,800.00). From and
after the EP Commencement Date, the term “Security Deposit” shall mean and refer to the aggregate
of the EP Security Deposit and the Original Security Deposit in the amount of Twenty-Seven Thousand
Eight Hundred and 00/100 Dollars ($27,800.00). The EP Security Deposit shall be subject to, and
the use and application thereof governed by, Article 20 of the Lease.
8. Tenant’s Share of Direct Expenses: As of the EP Commencement Date, the Lease shall
be modified to provide that Tenant’s Share of Direct Expenses (as defined in the Summary and
Section 4.2 of the Lease) shall be increased to 25.58% of the Building and 2.87% of the Park.
9. Unreserved Parking Spaces: As of the EP Commencement Date, the Lease shall be
modified to provide that Tenant’s total parking spaces available in the Park shall be increased to
forty-four (44) and Tenant’s Reserved Parking Area shall be increased to nineteen (19) spaces (with
the other twenty-five (25) spaces being unreserved).
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10. Insurance: Tenant shall deliver to Landlord, upon execution of this Amendment, a
certificate of insurance evidencing that the Expansion Premises are included within and covered by
Tenant’s insurance policies required to be carried by Tenant pursuant to the Lease.
11. WI-FI Network: Effective as of the date hereof, the following provision shall be
incorporated into the Lease as Section 8.4 and made a part thereof.
“8.4 Wi-Fi Network. Without limiting the generality of the foregoing,
in the event Tenant desires
to install wireless intranet, Internet and communications network (“Wi-Fi
Network”) in the Premises for the use by Tenant and its employees, then the
same shall be subject to the provisions of Section 8.4 (in addition to the
other provisions of Article 8). In the event Landlord consents to Tenant’s
installation of such Wi-Fi Network, Tenant shall, in accordance with Article 15
of the Lease, remove the Wi-Fi Network from the Premises prior to the
termination of the Lease. Tenant shall use the Wi-Fi Network so as not to
cause any interference to other tenants in the Building or to other tenants at
the Park or with any other tenant’s communication equipment, and not to damage
the Building or Park or interfere with the normal operation of the Building or
Park and Tenant hereby agrees to indemnify, defend and hold Landlord harmless
from and against any and all claims, costs, damages, expenses and liabilities
(including attorneys’ fees) arising out of Tenant’s failure to comply with the
provisions of Section 8.4, except to the extent same is caused by the gross
negligence or willful misconduct of Landlord and which is not covered by the
insurance carried by Tenant under this Lease (or which would not be covered by
the insurance required to be carried by Tenant under this Lease). Should any
interference occur, Tenant shall take all necessary steps as soon as reasonably
possible and no later than three (3) calendar days following such occurrence to
correct such interference. If such interference continues after such three (3)
day period, Tenant shall immediately cease operating such Wi-Fi Network until
such interference is corrected or remedied to Landlord’s satisfaction. Tenant
acknowledges that Landlord has granted and/or may grant telecommunication
rights to other tenants and occupants of the Building and to telecommunication
service providers and in no event shall Landlord be liable to Tenant for any
interference of the same with such Wi-Fi Network. Landlord shall use
commercially reasonable efforts to cause other tenants and occupants of the
Building to be subject to the same or similar restrictions as imposed upon
Tenant pursuant to this Section 8.4. Landlord makes no representation that the
Wi-Fi Network will be able to receive or transmit communication signals without
interference or disturbance. Tenant shall (i) be solely responsible for any
damage caused as a result of the Wi-Fi Network, (ii) promptly pay any tax,
license or permit fees charged pursuant to any laws or regulations in
connection with the installation, maintenance or use of the Wi-Fi Network and
comply with all precautions and safeguards recommended by all governmental
authorities, and (iii) pay for all necessary repairs, replacements to or
maintenance of the Wi-Fi Network.”
12. OFAC Compliance: Effective as of the date of the Amendment, the following
provision shall be incorporated into the Lease as Section 24.31 and made a part thereof.
“24.31 Tenant Identity. Tenant represents and warrants that (a) Tenant
and each person or entity owning an interest in Tenant is (i) not currently
identified on the Specially Designated Nationals and Blocked Persons List
maintained by the Office of Foreign Assets Control, Department of the Treasury
(“OFAC”) and/or on any other similar list maintained by OFAC pursuant to any
authorizing statute, executive order or regulation (collectively, the “List”),
and (ii) not a person or entity with whom a citizen of the United States is
prohibited to engage in transactions by any trade embargo, economic sanction,
or other prohibition of United States law, regulation, or Executive Order of
the President of the United States, (b) none of the funds or other assets of
Tenant constitute property of, or are beneficially owned, directly or
indirectly, by any Embargoed Person (as hereinafter defined), (c) no Embargoed
Person has any interest of any nature whatsoever in Tenant (whether directly or
indirectly), (d) none of the funds of Tenant have been derived from any
unlawful activity with the result that the investment in Tenant is prohibited
by law or that the Lease is in violation of law, and (e) Tenant has implemented
procedures, and will consistently apply those procedures, to ensure the
foregoing representations and warranties remain true and correct at all times.
The term “Embargoed Person” means any person, entity or government subject to
trade restrictions under U.S. law, including but not limited to, the
International Emergency Economic Powers Act, 50 U.S.C. §1701 et seq.,
The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any
Executive Orders or regulations promulgated thereunder with the result that the
investment in Tenant is prohibited by law or Tenant is in violation of law.”
13. Brokers: Tenant warrants that it has had no dealings with any real estate broker
or agent in connection with the negotiation of this Amendment, except for Cornish and ▇▇▇▇▇, who is
or might be entitled to a real estate brokerage commission in connection with this proposed
transaction. If Tenant has dealt with any person, real estate broker or agent with respect to this
Amendment, Tenant shall be solely responsible for the payment of any fee due to said person or
firm, and Tenant shall indemnify, defend and hold Landlord free and harmless against any claims,
judgments, damages, costs, expenses, and liabilities with respect thereto, including attorneys’
fees and costs.
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14. Effect of Amendment: Except as modified herein, the terms and conditions of the
Lease shall remain unmodified and continue in full force and effect. In the event of any conflict
between the terms and conditions of the Lease and this Amendment, the terms and conditions of this
Amendment shall prevail.
15. Definitions: Unless otherwise defined in this Amendment, all terms not defined in
this Amendment shall have the meanings assigned to such terms in the Lease.
16. Authority: Subject to the assignment and subletting 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.
17. Incorporation: The terms and provisions of the Lease are hereby incorporated in
this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above
written.
Landlord:
SUNNYVALE BUSINESS PARK I, LLC,
a Delaware limited liability company
a Delaware limited liability company
| By: | PRINCIPAL REAL ESTATE INVESTORS, LLC, | ||||||||
| a Delaware limited liability company, | |||||||||
| its authorized signatory | |||||||||
| By: Name: Its: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇
|
Dated: | August 27, 2007
|
||||||
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Investment Director Asset Management |
|||||||||
SUNNYVALE BUSINESS PARK SUB, LLC,
a Delaware limited liability company
a Delaware limited liability company
| By: | PRINCIPAL REAL ESTATE INVESTORS, LLC, | ||||||||
| a Delaware limited liability company, | |||||||||
| its authorized signatory | |||||||||
| By: Name: Its: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇
|
Dated: | August 27, 2007
|
||||||
| /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Investment Director Asset Management |
|||||||||
Tenant:
LEADIS TECHNOLOGY INC.,
a Delaware corporation
a Delaware corporation
By: Name: |
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
|
Dated: | 8/1/07
|
||||
Its:
|
Vice President, Chief Financial Officer | ||||||
By: Name: |
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
Dated: | 8/1/07
|
||||
Its:
|
General Counsel and Assistant Secretary |
If Tenant is a CORPORATION, the authorized officers must sign on behalf of the corporation and
indicate the capacity in which they are signing. This Amendment must be executed by the chairman
of the board, president or vice-president, and the secretary, assistant secretary, chief financial
officer or any assistant treasurer, unless the bylaws or a resolution of the board of directors
shall otherwise provide, in which event, the bylaws or a certified copy of the resolution, as the
case may be, must be attached to this Amendment.
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Exhibit “A”
Expansion Premises
Expansion Premises
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