FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the "Amendment"), dated as of February
12, 1998, is entered into by and between Stanford Ranch I, LLC, a Delaware
limited liability company ("Landlord"), and Spectrian Corporation, a Delaware
corporation ("Tenant"), and is made with reference to the following recitals of
fact:
RECITALS
A. Landlord and Tenant entered into that certain Lease dated December
19, 1997 (the "Lease"), for certain office space commonly known as Suite 500
(referred to in the Lease as the "Premises" and referred to herein as the
"Original Premises") in a building (the "Building") containing approximately
40,000 square feet to be constructed within Xxxxxxxx Tech Center, Xxx 00,
Xxxxxxx, Xxxxxxxxxx 00000 (the "Project"). The Lease includes the First Addendum
to Lease dated December 19, 1997 (the "First Addendum").
B. Tenant agrees to lease from Landlord additional space within the
Building and otherwise modify the Lease on all of the terms and conditions set
forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto do hereby agree as follows:
1. Lease of Additional Space.
(a) Additional Space. As of the Term Commencement Date,
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, that
certain space in the Building depicted on the Amended Exhibit "A" attached
hereto and incorporated herein by this reference (the "Additional Space"), on
all of the terms, provisions and conditions of the Lease as modified hereby. The
Amended Exhibit "A" also depicts the Original Premises, and the Amended Exhibit
"A" shall supersede and replace Exhibit "A" attached to the Lease. The
Additional Space contains approximately 19,142 square feet, and such Additional
Space and the Original Premises together constitute the entire Building. As of
the Term Commencement Date, the term "Premises," as used in the Lease and this
Amendment, shall be modified to mean the Original Premises and the Additional
Space.
(b) Term for Additional Space. The Term of the Lease with
respect to the Additional Space shall commence on the date on which the
conditions set forth in Section 2B of the Lease have been satisfied as they
relate to the Additional Space. The parties hereto anticipate that the Term of
the Lease relating to the Additional Space will occur on the Term Commencement
Date. As such, the provisions of this Amendment pertaining to the Additional
Space reflect commencement of obligations thereto occurring on the Term
Commencement Date. However, if the Tenant Improvements for the Additional Space
are not substantially completed by the Term Commencement Date, then,
notwithstanding anything contained herein to the contrary, the Term of the Lease
as it relates to the Additional Space shall commence upon substantial completion
of the Tenant Improvements for the Additional Space and delivery to Tenant of a
copy of a temporary or permanent occupancy permit for the Additional Space
(sometimes referred to herein as the "Additional Space Commencement Date"). The
term "Tenant Improvements for the Additional Space" shall mean the improvements
depicted on the Schematic Drawing prepared by Xxxxx/Hom/Macaulay/Dong, dated
February 12, 1998, a copy of which is attached hereto as the Amended Exhibit "A"
(sometimes also referred to herein as the "Schematic Drawing"). The Lease for
the entire Premises (i.e., the Original Premises and the Additional Space) shall
be coterminous, such that the Term of the Lease with respect to the Additional
Space shall end on the expiration or earlier termination of the Term of the
Lease with respect to the Original Premises, as it may be extended or renewed.
(c) Base Rent for Additional Space. As of the Term
Commencement Date, the Base Rent for the Additional Space shall be as follows:
(i) The Base Rent for the first two (2) months after
the Term Commencement Date shall be fully abated. For the period following the
first two (2) months of the abated Base Rent through the next 9 months of the
Term (the day after the last day of the last of such months is referred to
herein as the "Additional Space Base Rent Increase Date"), subject to the
provisions of Section 1(c)(iii) below, Base Rent for the Additional Space shall
be $8,613.90 per month ($0.45 per square foot of the Additional Space per month)
(it is understood that, if the Additional Space Commencement Date occurs after
the Term Commencement Date, the first two months after the Additional Space
Commencement Date shall be free of Base Rent for the Additional Space);
(ii) From the Additional Space Base Rent Increase
Date through the end of the Term, Base Rent for the Additional Space shall be
$16,270.70 per month ($0.85 per square foot of the Additional Space per month)
(sometimes referred to herein as the "Increased Base Rent for the Additional
Space");
(iii) The Additional Space Base Rent Increase Date
shall be lengthened or shortened to the extent the Construction Costs for the
Additional Space are less or greater, respectively, than Landlord's Additional
Construction Allowance (as defined in Section 1(g) below);
(iv) Base Rent for the Additional Space (i.e., the
initial Base Rent and the Increased Base Rent for the Additional Space) shall be
added to the Base Rent for the Original Premises (as the Base Rent for the
Original Premises may be increased to the extent the Tenant Improvement
Allowance is greater than the Fixed Allowance, as provided in Section 5 of the
First Addendum), and the combined Base Rent for the Additional Space and the
Original Premises shall be the Base Rent for the entire Premises under the
Lease;
(v) The combined Base Rent for the entire Premises
shall be increased on the 19th, 37th and 54th months of the Term of the Lease
(as calculated from the Term Commencement Date) by three and one-half percent
(3-1/2%) of the then existing combined Base Rent (as it may have been previously
increased). If the Increased Base Rent for the Additional Space is not effective
on the 19th month of the Term, then the Increased Base Rent for the Additional
Space shall be deemed to be effective for purposes of calculating the increase
in Base Rent for the 19th month of the Term. If the Additional Space
Commencement Date occurs more than sixty (60) days after the Term Commencement
Date, then the three and one-half percent (3-1/2%) increases in Base Rent for
the Additional Space shall be delayed by the number of days following the Term
Commencement Date until the Additional Space Commencement Date; however, this
delay shall not affect the occurrence of the three and one-half percent (3-1/2%)
increases in Base Rent for the Original Premises as described above.
(d) Tenant's Proportionate Share. As of the Term Commencement
Date, Tenant's Proportionate Share, as set forth in the Basic Lease Information
of the Lease, shall be increased to 100%, since, as of the Term Commencement
Date, Tenant shall be leasing the entire Building.
(e) Parking Density. As of the Term Commencement Date, the
number of parking spaces available for use by Tenant shall be modified to be all
of the parking spaces located on the Project.
(f) Tenant Improvements for Additional Space. Landlord shall
alter and improve the Additional Space with the Tenant Improvements as depicted
in the Schematic Drawing and in accordance with the terms and conditions of the
Lease (including, without limitation, all attachments thereto); provided,
however, that for purposes of determining the scope of the parties' obligations
with respect to the Tenant Improvements for the Additional Space, the following
shall apply:
(i) Landlord shall act reasonably and diligently in
the commencement and substantial completion of the Tenant Improvements for the
Additional Space, and Tenant shall act reasonably and cooperatively with
Landlord to enable the substantial completion of the Tenant Improvements for the
Additional Space to occur at the earliest date practicable. The first sentence
of Section 2.2 of the Work Letter attached as Exhibit "B" to the Lease (i.e.,
the Commencement Date shall occur by June 1, 1998) shall, subject to Section 35
of the Lease, be applicable to the Tenant Improvements for the Original Premises
and the Additional Space. In no event, subject to Section 35 of the Lease, shall
the Additional Space Commencement Date occur later than December 31, 1998.
(ii) The following provisions of the Lease shall not
be applicable to the construction of the Tenant Improvements for the Additional
Space: (i) the last sentence of Section 1 of the Work Letter and (ii) Section 5
of the First Addendum.
(iii) References in the Lease (including, without
limitation, the Work Letter) to the Tenant Improvements shall mean the Tenant
Improvements for the Additional Space, and references to the Commencement Date
shall mean the Term Commencement Date.
If Tenant wishes to make any changes to the Tenant Improvements for the
Additional Space from those depicted on the Schematic Drawing, and such changes
are approved in writing by Landlord (Landlord's approval shall not be
unreasonably withheld, except that Landlord's approval may be withheld in
Landlord's sole discretion as to any changes which materially diminish the
construction costs of the Tenant Improvements for the Additional Space below
$17.00 per square foot), then Tenant shall bear the entire cost of such changes
(including, without limitation, all architectural fees and costs, permit fees
and cost and all additional costs to construct and install the Tenant
Improvements for the Additional Space [including the 4% construction fee to
Landlord] related to such changes), and the date of substantial completion of
the Tenant Improvements for the Additional Space shall be deemed to have
occurred on the date same would have occurred but for such changes. The costs of
such changes that are to be borne by Tenant shall be paid by shortening the
Additional Space Base Rent Increase Date as described in Section 1(g) below.
2
(g) Payment of Construction Costs. Landlord's construction
allowance for the Tenant Improvements for the Additional Space shall be
$339,210.00 ($17.67 per square foot of the Additional Space) ("Landlord's
Additional Construction Allowance"), based upon construction costs of $______,
plus a construction fee to Landlord of 4% of such costs pertaining to the Tenant
Improvements for the Additional Space (which Tenant Improvements shall not
include the Landlord's Work (Landlord's Work shall be all work for the Building
that is not Tenant Improvements, whether such Tenant Improvements are to the
Original Premises or the Additional Space], but shall include the architectural
fees and costs of Xxxxx/Xxx/Xxxxxxxx/Dong for the Project). It is intended that
the monthly Base Rent shall not be increased if the increase in the construction
costs is simply because construction costs for the Tenant Improvements for the
Additional Space were higher than expected, and the monthly Base Rent shall not
be decreased if there is a decrease in the construction costs simply because
construction costs for the Tenant Improvements for the Additional Space were
lower than expected. In the event the actual construction costs of the Tenant
Improvements for the Additional Space exceeds or is less than Landlord's
Additional Construction Allowance solely due to Tenant changes in the Tenant
Improvements for the Additional Space, Landlord shall pay such actual
construction costs; provided, however, that there shall be an adjustment in the
occurrence of the Additional Space Base Rent Increase Date (either to lengthen
or shorten the time period before which the Increased Base Rent for the
Additional Space becomes effective and payable) as follows:
(i) If the actual Construction Costs for the Tenant
Improvements for the Additional Space are greater than Landlord's Additional
Construction Allowance due solely to Tenant's changes, then the amount of such
excess shall be paid by Tenant to Landlord in the form of a shortening of the
time period before which the Additional Space Base Rent Increase Date occurs.
For example, if such excess is $30,000.00, then the Additional Space Base Rent
Increase Date shall occur sooner by four (4) months (and the $627.20 remainder
shall be paid by Tenant to Landlord as additional Base Rent for the Additional
Space in the month preceding the Additional Space Base Rent Increase Date).
(ii) Alternatively, if the actual Construction Costs
for the Tenant Improvements for the Additional Space are less than Landlord's
Additional Construction Allowance due solely to Tenant's changes, then the
shortfall shall be recaptured by Tenant in the form of a lengthening of the time
period before which the Additional Space Base Rent Increase Date occurs. For
example, if the shortfall is $30,000.00, then the Additional Space Base Rent
Increase Date shall occur later by four (4) months (and the $627.20 remainder
shall be a credit against the Base Rent for the Additional Space in the month in
which the Additional Space Base Rent Increase Date occurs).
(iii) Notwithstanding anything to the contrary
contained in this Section 1(g), if as a result of Tenant changes in the Tenant
Improvements for the Additional Space, the construction costs for the Tenant
Improvements for the Additional Space exceed $406,001.82 ($21.21 per square foot
of the Additional Space), then Tenant shall pay the excess costs to Landlord
within ten (10) days after written request therefor from Landlord, and in any
event prior to the date Landlord incurs such costs.
(h) Evidence of Insurance Coverage. On the Term Commencement
Date, Tenant shall cause the insurance which Tenant is obligated to obtain under
the Lease to be revised such that it shall also be applicable to and cover the
Original Premises and the Additional Space, and Tenant shall deliver a
Certificate of Insurance therefor to Landlord on the Term Commencement Date.
2. Exercise of Right of First Refusal. The execution of this Amendment
shall be considered as Tenant's exercise of its First Refusal Right contained in
Paragraph 3 of the First Addendum. Therefore, said Paragraph 3 of the First
Addendum is hereby deleted in its entirety and shall have no further force or
effect. Furthermore, as a result of the exercise by Tenant of its First Refusal
Right, same automatically terminated Tenant's Cancellation Option, and as such,
Paragraph 4 of the First Addendum is also hereby deleted in its entirety and
shall have no further force or effect.
3. Tenant Estoppel Statement. Tenant hereby certifies and agrees that
the Lease is in full force and effect, Landlord is not currently in default
under the Lease, and, to the best of Tenant's knowledge, no event has occurred
which, with the giving of notice or the passage of time, or both, would ripen
into Landlord's default under the Lease. Tenant further acknowledges that the
Lease has not been modified or amended in any way prior to the date of this
Amendment.
4. Defined Terms; Captions. All terms in this Amendment not otherwise
defined herein shall have the same definitions as are provided therefor in the
Lease. The captions used in this Amendment are for convenience of reference only
and shall have no effect upon the interpretation of this Amendment.
5. Authorization to Sign. Landlord and Tenant hereby warrant and
represent to each other that the persons signing the Lease and this Amendment
have the authority to sign such documents on behalf of such party and that such
documents are binding upon such party in accordance with their terms. Upon
request by either party hereto, the other party shall provide reasonable
evidence of the authority of the signatories on its behalf to the Lease and this
Amendment.
3
6. Ratification of Lease. Except as expressly amended and modified
herein, the Lease shall remain in full force and effect and, as hereby amended,
is ratified and confirmed by the parties hereto. In the event of a conflict
between the provisions of this Amendment and those of the Lease, the provisions
of this Amendment shall control.
7. Brokers. The provisions of Paragraph 36 of the Lease dealing with
the brokerage commission payable to Cornish & Xxxxx Commercial and the
representation, warranty and indemnity by Tenant contained therein shall also be
applicable to the lease of the Additional Space.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first set forth above.
"LANDLORD" "TENANT"
STANFORD RANCH I, LLC, SPECTRIAN CORPORATION,
a Delaware limited liability company a Delaware corporation
By: ______________________________ By: ______________________________
Name:_________________________ Name:_________________________
Title:________________________ Title:________________________
By: ______________________________ By: ______________________________
Name:_______________________ Name:_________________________
Title:______________________ Title:________________________
4
AMENDED EXHIBIT "A"
SCHEMATIC DRAWING SHOWING ORIGINAL PREMISES AND ADDITIONAL SPACE
[TO BE ATTACHED]
5
