Exhibit 10.1
SECOND AMENDMENT
THIS SECOND AMENDMENT (hereinafter referred to as the "Amendment")
is made this 7th day of November 2014, by and between CWCA SCOTT CREEK
28, L.L.C., a Delaware limited liability company ("Landlord"), and AEHR
TEST SYSTEMS, a California corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord (formerly known as Walton CWCA Scott Creek 28,
L.L.C., successor in interest to Scott Creek Three Trust, a Maryland
real estate investment trust) and Tenant are party to that certain
Multi-Tenant Office Triple Net Lease, dated as of "July ___, 1999"
(sic) (the "Original Lease"), as amended by that certain First
Amendment, dated as of April 1, 2008 (the "First Amendment", and
collectively with the Original Lease, the "Lease", as may be further
amended or modified from time to time), pursuant to which Landlord
leases to Tenant certain premises consisting of approximately 51,289
rentable square feet with a common address of 400 Kato Terrace,
Fremont, California, as more particularly described in the Lease
(the "Premises") and located in the Project commonly known as Scott
Creek Business Park.
WHEREAS, the Lease Term is scheduled to expire on June 30, 2015
and Landlord and Tenant desire to extend the existing Lease Term for an
additional thirty-six (36) full calendar months from such expiration
date and to amend the terms and conditions of the Lease as hereinafter
provided.
AGREEMENT:
NOW, THEREFORE, in consideration of ten dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties, and the mutual covenants set
forth herein, the parties hereto agree as follows:
1. Extension of Lease Term. The Lease Term is hereby extended for
a period of thirty-six (36) full calendar months, commencing as of July
1, 2015 (the "Second Extension Date") and expiring on June 30, 2018
(the "Second Extended Termination Date") (which period is referred to
herein as the "Second Extended Term"), unless sooner terminated in
accordance with the terms of the Lease. From and after the date hereof,
the "Lease Term" shall be deemed to include the Second Extended Term.
Tenant's lease of the Premises during the Second Extended Term shall be
subject to all the terms and conditions of the Lease, except as
expressly modified herein, and except that Tenant shall not be entitled
to receive any allowances, abatements, or other financial concession
granted in connection with entering into the Lease unless such
concessions are expressly provided for herein with respect to the
Second Extended Term.
2. Base Rent Schedule. Effective as of the Second Extension Date,
the monthly Base Rent for the Premises payable by Tenant to Landlord
during the Second Extended Term is as follows:
From To Base Rent (per month)
--------- -------- ------------------------
7/1/2015 6/30/2016 $36,928.08
7/1/2016 6/30/2017 $38,035.92
7/1/2017 6/30/2018 $39,177.00
Except as otherwise set forth in this Amendment, all other terms and
conditions with respect to the payment of Base Rent, Building Direct
Expenses, or any other sums due and payable by Tenant under the Lease shall
remain as set forth thereunder.
3. AS-IS Condition. Tenant hereby acknowledges and agrees that it has
accepted the Premises as of the date hereof, and will continue to accept the
Premises as of the Second Extension Date, in AS-IS, WHERE-IS condition without
any representation or warranty of any kind made by Landlord in favor of
Tenant.
4. Letter of Credit. Notwithstanding the third sentence of Section 3 of
the First Amendment to the contrary, Landlord and Tenant acknowledge and agree
that the terms of Section 3 of the First Amendment shall remain in effect
from and after the Second Extension Date.
5. Landlord's Notice Address. Landlord's address for notices set forth
in the Lease is hereby deleted in its entirety and is replaced with the
following:
"CWCA Scott Creek 28, L.L.C.
c/o IndCor Properties
Two North Riverside Plaza, Suite 2350
Chicago, IL 60606
Attn: Lease Administration
with a copy to:
CWCA Scott Creek 28, L.L.C.
c/o IndCor Properties
7887 Belleview Ave., Suite 325
Denver, CO 80111
Attn: Charles Sullivan"
6. Wire Instructions/Addresses for Rent Payment. Notwithstanding
anything to the contrary contained in Article 3 of the Original Lease or
Section 8.1 of the First Amendment, the following are Landlord's wire
instructions and rent payment addresses:
ACH/Wire Payments:
Bank Name: JPMorgan Chase
Bank Address: 277 Park Avenue, 22nd Floor, New York, NY 10172
ABA #: ACHs - 071000013, Wires - 021000021
Account #: 479562865
Account Name: CWCA East Howell 59, L.L.C.
US Mail:
CWCA Scott Creek 28, L.L.C.
P.O. Box 101257
Pasadena, CA 91189-0005
Overnight Mail:
JPMorgan Chase
2710 Media Center Drive
Building #6, Suite #120
Los Angeles, CA 90065
Attn: CWCA Scott Creek 28, L.L.C.
7. Renewal Option. Section 7 of the First Amendment is hereby
deleted in its entirety. Notwithstanding anything to the contrary set
forth in the Lease, Tenant shall have one (1) option to further extend
the Lease Term (the "Renewal Option") on the following terms and
conditions.
(a) Provided that as of the date of the receipt of the Renewal
Notice (as hereinafter defined) by Landlord and the Renewal Commencement
Date (as hereinafter defined), (i) Tenant is the tenant originally
named herein, (ii) Tenant actually occupies all of the Premises
initially demised under this Amendment and any space added to the
Premises, and (iii) no default exists, or would exist but for the
passage of time or the giving of notice, or both, then Tenant shall
have the right to further extend the Lease Term for an additional
period of thirty-six (36) months (the "Renewal Term") commencing on the
day following the Second Extended Termination Date (the "Renewal
Commencement Date"). Tenant shall give Landlord written notice (the
"Renewal Notice") of its
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election to extend the Lease Term in accordance with the terms hereof
at least one hundred eighty (180) days, but not more than two hundred
seventy (270) days, prior to the Second Extended Termination Date.
(b) The Base Rent payable by Tenant to Landlord during the
Renewal Term shall be the greater of (i) the Base Rent applicable to the
last month of the Second Extended Term, and (ii) the then-prevailing
market rate for comparable space in comparable buildings in the
vicinity of the Project taking into account the size of the lease, the
length of the renewal term, market escalations, and the credit of
Tenant. The Base Rent shall not be reduced by reason of any costs or
expenses saved by Landlord by reason of Landlord's not having to find a
new tenant for such premises (including, without limitation, brokerage
commissions, costs of improvements, rent concessions or lost rental
income during any vacancy period).
(c) Landlord shall notify Tenant of its determination of the
Base Rent for the Renewal Term, and Tenant shall advise Landlord in
writing of any objection to such determination of the Base Rent within
ten (10) days of receipt of Landlord's notice. Failure to respond within
the ten (10) day period shall constitute Tenant's rejection of such
Base Rent, Tenant's exercise of the Renewal Option shall be deemed to
be withdrawn, and the Lease shall expire or terminate in accordance with
its terms. If Tenant affirmatively objects in writing, Landlord and
Tenant shall commence negotiations to attempt to agree upon the Base
Rent for a period of up to fifteen (15) days after Landlord's receipt of
Tenant's objection notice. If (i) Tenant has rejected such Base Rent in
writing and (ii) the parties cannot agree after Tenant objects, each
acting in good faith but without any obligation to agree, on the Base
Rent on or before the end of such fifteen (15) day period, then
Tenant's exercise of the Renewal Option shall be deemed withdrawn and
the Lease shall expire or terminate in accordance with its terms.
(d) The determination of the Base Rent does not reduce the
Tenant's obligation to pay or reimburse Landlord for any additional
rent and any other reimbursable or chargeable items as set forth in the
Lease, and Tenant shall reimburse and pay Landlord as set forth in the
Lease with respect to such items with respect to the Premises during
the Renewal Term.
(e) Except for the Base Rent for the Renewal Term as determined
above, Tenant's occupancy of the Premises during the Renewal Term shall
be on the same terms and conditions as are in effect immediately prior
to the expiration of the Second Extended Term; provided, however, Tenant
shall have no further right to any allowances, credits or abatements or
any options to expand, contract, renew, terminate or extend the Lease.
(f) If Tenant does not give the Renewal Notice within the period
set forth above, the Renewal Option shall automatically terminate. Time
is of the essence as to the giving of the Renewal Notice.
(g) Landlord shall have no obligation to refurbish or otherwise
improve the Premises for the Renewal Term. The Premises shall be
tendered on the Renewal Commencement Date in "as-is" condition.
(h) If the Lease Term is extended for the Renewal Term, then,
promptly after the determination of Base Rent in accordance with the
terms of this Section 7, Landlord shall prepare and Tenant shall
execute, within ten (10) days of receipt, an amendment to the Lease
confirming the extension of the Lease Term and the other provisions
applicable thereto.
(i) If Tenant exercises its right to extend the term of the
Lease for the Renewal Term pursuant to this Section 7 and the parties
execute the amendment, the term "Lease Term" as used in this Lease,
shall be construed to include, when practicable, the Renewal Term
except as provided in subsection (e) above.
8. Tenant's Broker. Tenant represents and warrants that it has
dealt with no broker, agent or other person in connection with this
transaction and that no broker, agent or other person brought about
this transaction other than Cornish & Carey Commercial Newmark Knight
Frank. Tenant agrees to indemnify and hold Landlord harmless from and
against any claims by any other broker, agent or other person claiming
a commission or other form of compensation by virtue of having dealt
with Tenant with regard to this leasing transaction.
9. No Offer. Submission of this Amendment by Landlord is not an
offer to enter into this Amendment, but rather is a solicitation for
such an offer by Tenant. Landlord shall not be bound by this Amendment
until Landlord and Tenant have fully executed and delivered this
Amendment. To Landlord's actual knowledge, the Premises has not
undergone an inspection by a certified access specialist. For purposes
of this
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Section, Landlord's actual knowledge shall mean and be limited to the
actual knowledge of the person who is Landlord's asset manager (not the
Building's property manager) on the date this Amendment is executed by
Landlord, without any duty of inquiry or investigation, and such asset
manager shall have no personal liability if such representation is
untrue.
10. Authority. Tenant represents and warrants to Landlord that
Tenant has been and is qualified to do business in the state in which
the Premises is located, that the entity has the full right and
authority to enter into this Amendment, and that all persons signing on
behalf of the entity were authorized to do so by appropriate actions.
11. Severability. If any clause or provision of this Amendment is
illegal, invalid or unenforceable under present or future laws, then
and in that event, it is the intention of the parties hereto that the
remainder of this Amendment shall not be affected thereby. It is also
the intention of the parties to this Amendment that in lieu of each
clause or provision of this Amendment that is illegal, invalid or
unenforceable, there be added, as a part of this Amendment, a clause or
provision as similar in terms to such illegal, invalid or unenforceable
clause or provision as may be possible and be legal, valid and
enforceable.
12. Counterparts and Delivery. This Amendment may be executed in
any number of counterparts, each of which shall be deemed to be an
original, and all of such counterparts shall constitute one
Amendment. Execution copies of this Amendment may be delivered by
facsimile or email, and the parties hereto agree to accept and be bound
by facsimile signatures or scanned signatures transmitted via email
hereto, which signatures shall be considered as original signatures
with the transmitted Amendment having the binding effect as an original
signature on an original document. Notwithstanding the foregoing,
Tenant shall, upon Landlord's request, deliver original copies of this
Amendment to Landlord at the address set forth in such request. Neither
party may raise the use of a facsimile machine or scanned document or
the fact that any signature was transmitted through the use of a
facsimile machine or email as a defense to the enforcement of this
Amendment.
13. Conflict; Ratification; Integration. Insofar as the specific
terms and provisions of this Amendment purport to amend or modify or
are in conflict with the specific terms, provisions and exhibits of the
Lease, the terms and provisions of this Amendment shall govern and
control. Landlord and Tenant hereby agree that (a) this Amendment is
incorporated into and made a part of the Lease, (b) any and all
references to the Lease hereinafter shall include this Amendment, and
(c) the Lease, and all terms, conditions and provisions of the
Lease, are in full force and effect as of the date hereof, except as
expressly modified and amended hereinabove. The recitals set forth
herein are incorporated by reference. Capitalized terms used in this
Amendment shall have the same definitions as set forth in the Lease to
the extent that such capitalized terms are defined therein and not
redefined in this Amendment. This Amendment and any attached exhibits
and addenda set forth the entire agreement between the parties with
respect to the matters set forth herein.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly authorized, executed and delivered as of the day and year
first set forth above.
LANDLORD: TENANT:
CWCA SCOTT CREEK 28, L.L.C., AEHR TEST SYSTEMS,
a Delaware limited liability company a California corporation
By: /s/ MICHAEL R. MERCIER By: /s/ GARY L. LARSON
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Name: Michael R. Mercier Name: Gary L. Larson
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Title: Senior Vice President-Operations Title: VP, CFO
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