Exhibit 10.08(b)
FIRST AMENDMENT TO LEASE
This First Amendment to Lease ("Amendment") is made and entered into as of
September 30, 1997 ("Effective Date") by and between MONTAGUE OAKS ASSOCIATES
PHASE III, a California general partnership ("Landlord"), and ATMI ECOSYS
CORPORATION, a California corporation ("Tenant").
R E C I T A L S
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A. Pursuant to that certain Lease dated February 7, 1995 ("Lease"),
Landlord leases to Tenant, and Tenant leases from Landlord, certain premises
("Premises") consisting of approximately twenty-three thousand eight hundred
sixty (23,860) rentable square feet of space within that certain building
("Building") commonly known as ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and
located in that certain project ("Project") commonly referred to as Montague
Oaks, all as more particularly described in the Lease.
B. Landlord and Tenant desire to extend the term of the Lease for an
additional one (1) year period and to establish a formula for determining the
rent during the extended term, all as more particularly described herein.
Capitalized terms used in this Amendment shall have the meanings ascribed to
such terms in the Lease unless otherwise defined in this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Landlord and Tenant hereby modify, supplement and
amend the Lease as follows:
1. Term. The term of the Lease is hereby extended for an additional
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one (1) year and seven (7) day period from March 16, 2002 to March 23, 2003
("First Extended Term"). The option to extend the term for a period of five (5)
years granted to Tenant under paragraph 55 of the Lease remains in force and
effect provided that all references in said paragraph 55 to the Initial Term are
hereby replaced with references to the First Extended Term.
2. Rent. At the commencement of the First Extended Term, the monthly
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basic rent for the Premises shall be adjusted to be equal to ninety-five percent
(95%) of the market rate. As used herein, the "market rate" shall mean the
monthly rent (triple net) then being obtained under leases with comparable terms
as this Lease in the Project and in buildings and/or other projects within the
same geographical area of similar types in identity, quality and location as the
Project; provided, however, in no event shall the monthly basic rent during the
First Extended Term be less than Eighteen Thousand One Hundred Thirty-three
Dollars and Sixty Cents ($18,133.60) per month or Seventy-six Cents ($.76) per
square foot ("Minimum Extended Term Rent"), nor more than Thirty-six Thousand
Nine Hundred Eighty-three Dollars ($36,983) per month or One Dollar
and Fifty-five Cents ($1.55) per square foot ("Maximum Extended Term Rent"). Not
earlier than two hundred and seventy (270) days nor later than one hundred
eighty (180) days prior to the expiration of the Lease Term, the parties shall
meet and negotiate the market rate in good faith. If Landlord and Tenant agree
on the amount of the market rate, they shall immediately execute an Amendment to
this Lease setting forth the amount of the monthly basic rent to be paid by
Tenant during the First Extended Term. If Landlord and Tenant are unable to
agree on the amount of the market rate within thirty (30) days after the
commencement of such negotiations, then the market rate shall be determined in
the following manner:
Within forty-five (45) days after commencement of negotiations, Landlord
and Tenant shall each select an independent licensed commercial real estate
broker having not less than ten (10) years experience in the leasing of research
and development and industrial properties in Santa ▇▇▇▇▇ County, which broker
shall not have been employed by either party in this transaction. Within fifteen
(15) days of their employment, the two real estate brokers shall select a third
real estate broker who is similarly qualified. Within thirty (30) days from the
appointment of the third broker, the three brokers so selected shall, acting as
a board of arbitrators, determine the amount of the market rate, basing their
determination on standard procedures and tests normally employed in the
commercial real estate profession in determining market rate and applying the
factors included within the definition of market rate set forth above. The
decision of the majority of the brokers shall be final and binding upon the
parties hereto. If a majority of the brokers are unable to agree on the market
rate within the stipulated period of time, the three opinions of the market rate
shall be added together and their total divided by three, and the resulting
quotation shall be the market rate; provided, however, in no event shall the
market rate be less than the Minimum Extended Term Rent nor exceed the Maximum
Extended Term Rent. Each party shall pay the expenses and charges of the broker
appointed by it and the parties shall pay the expenses and charges of the third
broker in equal shares. When the market rate has been so determined, Landlord
and Tenant shall immediately execute an Amendment to the Lease stating the basic
rent for the First Extended Term. Tenant shall pay the basic rent determined for
the First Extended Term in accordance with the provisions of paragraph 4(a) of
the Lease.
3. Common Area Charges. During the First Extended Term, Tenant shall
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continue to pay its percentage share of common area charges in accordance with
the provisions of paragraph 4(b) of the Lease, subject to adjustments and
reconciliation as provided in paragraph 16 of the Lease.
4. Tenant Improvements. Tenant acknowledges that Landlord has no
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obligation to provide Tenant with any tenant improvements or refurbishing
allowance with respect to tenant improvements in Premises during the First
Extended Term.
5. Brokers. Each party represents and warrants to the other party
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that it has not had any dealings in any manner with any real estate broker,
finder or other person with respect to the Premises and the negotiations and
execution of this Amendment. Each
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party shall defend, indemnify and hold harmless the other party from and against
all damage, loss, liability and expense (including attorneys' fees and related
costs) arising out of or resulting from any claims for commissions or fees that
may or have been asserted against the other party by any broker, finder or other
person with whom Tenant or Landlord has or purportedly has dealt with in
connection with the Premises and the negotiation or execution of this Amendment.
6. Corporate Authority. If Tenant is a corporation, each individual
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executing this Amendment on behalf of the corporation represents and warrants
that he is duly authorized to execute and deliver this Amendment on behalf of
the corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation and that this Amendment is binding upon said
corporation in accordance with its terms. If Tenant is a corporation, Tenant
shall deliver to Landlord, within ten (10) days of the execution of this
Amendment, a copy of the resolution of the Board of Directors of Tenant
authorizing the execution of this Amendment and naming the officers that are
authorized to execute this Amendment on behalf of Tenant, which copy shall be
certified by Tenant's president or secretary as correct and in full force and
effect.
7. Effect of Amendment. Except as modified herein, the terms and
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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 this
Amendment and the terms and provisions of the Lease, the terms and provisions of
the Amendment shall govern and control the intent and agreement of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first set forth above.
LANDLORD:
MONTAGUE OAKS ASSOCIATES
PHASE III, a California general partnership
By: ▇▇▇▇▇▇▇▇▇▇ GROUP (MONTAGUE), a California
general partnership, a general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, as Trustee of the
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Intervivos Trust dated February 17,
1982, a general partner
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By: 745 PROPERTY INVESTMENTS, a Massachusetts
voluntary trust, a general partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Its: Vice President
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TENANT:
ATMI ECOSYS CORPORATION, a California corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Chief Financial Officer
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