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FIRST AMENDMENT TO LEASE AND LICENSE

License Agreement

FIRST AMENDMENT TO LEASE AND LICENSE | Document Parties: HI/FN INC | RREEF AMERICA REIT III-ZI LLC You are currently viewing:
This License Agreement involves

HI/FN INC | RREEF AMERICA REIT III-ZI LLC

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Title: FIRST AMENDMENT TO LEASE AND LICENSE
Date: 12/14/2006
Industry: Semiconductors    

FIRST AMENDMENT TO LEASE AND LICENSE, Parties: hi/fn inc , rreef america reit iii-zi llc
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EXHIBIT 10.31

FIRST AMENDMENT TO LEASE AND LICENSE

 

THIS FIRST AMENDMENT TO LEASE AND LICENSE (this "Amendment") is entered into as of the l9th day of September, 2006 (the "Effective Date"), by and between RREEF AMERICA REIT III-ZI LLC , a Delaware limited liability company ("Landlord"), successor in interest to BCIA New England Holdings LLC, a Delaware limited liability company (the "Original Landlord") and HIFN, INC. , a California corporation ("Tenant").

 

Recitals

 

A.   Landlord is the owner of certain real property located and known as Point West Place, 111 Speen Street, Framingham, Massachusetts (the "Land") and the building thereon (the "Building") and other improvements constructed thereon (the Land, the Building and the other improvements are hereinafter collectively referred to as the "Property").

 

B.   Reference is made to that certain lease dated as of June 30, 2003 (the "Lease") between the Original Landlord, as landlord, and Tenant, as tenant, as modified by Commencement Date Letter dated September 15, 2003 between Original Landlord and Tenant, with respect to a portion of the Building, currently consisting of approximately 4,177 rentable square feet on the second floor (the "Leased Premises").

 

C.   Reference is also made to that certain Storage Space License dated January 31, 2004 between Original Landlord, as Landlord, and Tenant, as Tenant (the "License").

 

D.   Landlord is the current owner of the Property and the current holder of the Landlord's interest under both the Lease and the License and Tenant is the current holder of the Tenant's interest under both the Lease and the License.

 

E.   Landlord and Tenant desire to extend the term of the Lease and License, and to otherwise amend the Lease and License as more particularly set forth below.

 

NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which is hereby mutual1y acknowledged, Landlord and Tenant hereby agree that the Lease and License are hereby amended as follows:

 

Agreements

 

    1.  Capitalized Terms . Each capitalized term appearing but not defined herein shall have the meaning, if any, ascribed to such term in the Lease or the License, as the context shal1 require.

 

2.   Recitals . The recitals above set forth are true and complete and are incorporated herein by reference.

 

3.   Amendments . As of the Effective Date, the Lease is hereby amended as follows:

 

(a) Landlord . The term "Landlord," as used in both the Lease and the License is hereby amended to read in its entirety as follows:

 

 

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LANDLORD:

RREEF AMERICA REIT In - Z1 LLC , a

 

 

Delaware limited liability company

 

 

(b) Landlord's Address . For all purposes under the Lease and License, Landlord's address and Landlord's Managing Agent's address for notice shall be as follows:

 

 

LANDLORD'S ADDRESS:

 

 

 

c/o RREEF Management Company

 

4 Technology Drive

 

Westborough, MA 01581

 

4.   Amendments to License .

 

(a)   Landlord and Tenant hereby agree that the term of the License is hereby extended so that it shall expire upon the date of expiration or earlier termination of the Lease, as amended hereby, unless the License is sooner terminated by Landlord in accordance with the provisions of the License. Tenant hereby accepts the Storage Space as defined in Section 1 of the License "As Is", in its current condition, without any representations or warranties by Landlord and without any obligation by Landlord to prepare the same for Tenant's use and occupancy or to make any payments or to give any allowances to Tenant.

 

(b)   Section 1 (g) of the License is hereby amended by inserting the following at the end of the penultimate sentence thereof: "in which event Landlord may terminate this License immediately upon giving notice of termination to Tenant."

 

5.   Amendments to Lease .

 

(a)   Basic Rent . Until November 30, 2006, Basic Rent shall remain payable as per the current Lease. Commencing as of December 1, 2006 and continuing through the remainder of the term as extended, Basic Rent shall be payable in the following amounts:

 

Period

Rentable Square

Rent

Annual Rent

Monthly Installment

from

to

Footage

Per Square Foot

 

of Rent

12/1/2006

11/30/2007

4,177

$24.00

$100,248.00

$8,354.00

12/1/2007

11/30/2008

4,177

$25.00

$104,425.00

$8,702.08

12/1/2008

11/30/2009

4,177

$26.00

$108,602.00

$9,050.17

12/1/2009

I 1/30/2010

4,177

$27.00

$112,779.00

$9,398.25

12/1/2010

11/30/2011

4,177

$28.00

$116,956.00

$9,746.33

 

(b)   Base Year for Operating Expenses . Effective December 1, 2006: Calendar year 2007.

 

(c)   Base Year for Taxes . Effective December 1, 2006: Calendar year 2007.

Calendar Year 2007 is comprised of half of tax fiscal year 2007, (i.e., January 1, 2007 through June 30, 2007) and half of tax fiscal year 2008, (i.e., July 1, 2007 through December 31, 2007).

 

(d)   Tax Year . Effective December 1, 2006: "Tax Year" shall mean a calendar

 

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year or portion thereof included within the Term, which calendar year may be comprised of portions of more than one tax 'fiscal year. For example, the Tax Year which is Calendar Year 2008 is comprised of half of tax fiscal year 2008, (i.e., January 1, 2008 through June 30, 2008) and half of tax fiscal year 2009, (i.e., July 1,2008 through December 31,2008).

 

(e)   Term . The Term, currently scheduled to expire on November 30, 2006, is hereby extended for an additional period of five (5) years, beginning December 1, 2006 and ending November 30, 2011.

 

(f)   Agent . Effective immediately, the Agent (as defined in Section 1.2 of the Lease) is RREEF Management Company, a Delaware corporation.

 

                   (g)   Effective December 1, 2006, Article 8.1 (b) of the Lease is hereby deleted and the following substituted therefor:

 

"(b) In the event that Taxes assessed for any Tax Year shall exceed Base Taxes, Tenant shall pay to Landlord, as Additional Rent, an amount equal to (i) the excess of Taxes assessed for such Tax Year over Base Taxes, multiplied by (ii) Tenant's Proportionate Share, both the Taxes assessed for the Tax Year and the Base Taxes to be apportioned in the case of any partial Tax Year at the end of the Term."

 

(h)   Article 14.1 (a) of the Lease, defining "Default of Tenant" is hereby amended to add a new subdivision (ix) as follows: "Tenant shall fail to perform or observe any term or condition contained in the License and such failure shall continue beyond any applicable notice and cure periods provided for in the License".

 

(i)   Condition of Premises . In connection with this Amendment, Landlord shall provide (i) 600 CFM cabinet exhaust fan on thermostat for Tenant's computer room and (ii) a central system diffuser balanced to 200 CFM plus four (4) 2x2 grilles for the Tenant's lab area. Except as set forth in the preceding sentence, Tenant hereby acknowledges and agrees that (i) the Premises and the Storage Space are satisfactory to Tenant in all respects in their "AS IS" condition, without representation or warranty of any kind by Landlord, (ii) it is the current tenant of the Premises and the Storage Space, (iii) it has inspected and is familiar with the Premises and the Storage Space as the current tenant of the Premises and the Storage Space, (iv) has found the Premises and the Storage Space to be satisfactory to its intended uses, and (v) Landlord is not required to complete any unperformed repair or other work with respect to the Premises or the Storage Space as of the date of this Amendment.

 

(j)   Security Deposit . Landlord acknowledges that it is presently holding a cash Security Deposit in the amount of $19,840.75, which is presently the "Required Amount" pursuant to Section 14.8 of the Lease. Landlord and Tenant hereby agree that the "Required Amount" of the Security Deposit shall remain as $19,840.75 throughout the remainder of the Term, as extended hereby, without reduction. The Security Deposit shall continue to be held by Landlord subject to the terms of Section 14.8 of the Lease.

 

(k)   Extension Option . Section 15.20 of the Lease and all references thereto are hereby deleted. Tenant shall have no right or option to extend the Term of this Lease for the

 

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Extension Period provided for in said Section 15.20 or for any other period beyond Novemb


 
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