EXHIBIT 10.17
First Amendment to Lease Agreement
This First Amendment to Lease Agreement (the "Amendment") is made and entered
into to be effective as of August 26, 1997, by and between LINCOLN MENLO VI, A
CALIFORNIA LIMITED PARTNERSHIP ("Landlord"), and Onsale, Inc., a Delaware
corporation ("Tenant"), with reference to the following facts:
RECITALS
A. Landlord and Tenant have entered into that certain Lease Agreement dated
August 8, 1997 (the "Lease"), for the leasing of certain premises containing
approximately 17,520 rentable square feet of space located at 0000 Xxxxxx
Xxxx, Xxxxxx 000, 202 and 204, Menlo Park, California (the "Premises") as
such Premises are more fully described in the Lease.
B. Landlord and Tenant wish to amend the below terms of the Lease.
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 hereby agree as follows:
1. Recitals: Landlord and Tenant agree that the above recitals are true and
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correct.
2. Premises: Approximately 12,974 rentable square feet commonly known as 1350
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Willow Road, Suites 202 and 204, Menlo Park, California.
3. The dates on which the Base Rent will be adjusted are:
for the period November 15, 1997 to November 14, 1998 the monthly Base
Rent shall be $25,299.30;
for the period November 15, 1998 to November 14, 1999 the monthly Base
Rent shall be $26,311.27;
for the period November 15, 1999 to November 14, 2000 the monthly Base
Rent shall be $27,363.72;
for the period November 15, 2000 to November 14, 2001 the monthly Base
Rent shall be $28,458.27; and
for the period November 15, 2001 to November 14, 2002 the monthly Base
Rent shall be $29,596.60.
4. Security Deposit: Twenty-nine thousand five hundred ninety-six and 00/100
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dollars ($29,596.00).
5. Tenants Share of Expenses: Tenant's share of Additional Rent is hereby
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adjusted as follows:
Tenant's Share of Operating Expenses (6.1): 13.0% of Phase VI
Tenant's Share of Tax Expenses (6.2): 26.0% of the Lot
Tenant's Share of Utility Expenses (7): 26.0% of the Building
6. Unreserved Parking Spaces: Fifty-two (52) unreserved spaces.
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7. Expansion Requirement:
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7.1 Tenant's Expansion Requirement. Tenant shall be obligated, upon
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written notice from Landlord described below, to expand the Premises (as
defined in the Lease) to include the approximately 4546 rentable square
feet commonly known as 0000 Xxxxxx Xxxx, Xxxxx 000 ("Expansion Premises
A") and the 7,440 rentable square feet commonly known as 0000 Xxxxxx Xxxx,
Xxxxx 000, Xxxxx Xxxx, Xxxxxxxxxx (the "Expansion Premises B")
collectively known as the "Expansion Premises" as and when set forth in
Landlord's Notice (defined below). A description of the Expansion Premises
is attached to this Addendum Two as Schedule 1.
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7.2 Landlord's Notice. Landlord shall provide one hundred eighty (180)
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days, advance written notice to Tenant of the date that Tenant shall be
required to occupy the Expansion Premises ("Landlord's Notice") and in no
event shall Tenant have the right to delay occupancy of the Expansion
Premises or otherwise alter or change the date set forth in Landlord's
Notice upon which Tenant shall commence (i) occupancy of the Expansion
Premises and (ii) paying Base Rent and additional Rent therefor.
7.3 Establishing the Initial Monthly Base Rent for the Expansion
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Premises. The monthly Base Rent for Expansion Premises A shall equate to
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the rental rate per square foot of Base Rent for the Leased Premises, and
shall increase by the same percentage and on the same Base Rent
adjustment dates of the leased Premises. The initial monthly Base Rent for
Expansion Premises B shall be the then current market rent for the highest
and best use for similar space within the competitive market area of
Expansion Premises B (the "Fair Rental Value"). "Fair Rental Value" of
Expansion Premises B means the current market rental value of Expansion
Premises B as of the date of Landlord's Notice, taking into consideration
all relevant factors, including length of term, the uses permitted under
the Lease, the quality, size, design and location of Expansion Premises B,
including the condition and value of existing tenant improvements, and the
monthly base rent paid by tenants for premises comparable to Expansion
Premises B, and located in the competitive market area of Expansion
Premises B, as reasonably determined by Landlord.
If Landlord and Tenant are unable to agree on the Fair Rental Value for
Expansion Premises B within ten (10) days of receipt by Tenant of
Landlord's Notice. Landlord and Tenant each, at their own respective cost
and by giving notice to the other party, shall appoint a competent and
impartial commercial real estate broker (hereinafter "broker") with at
least five (5) years' full-time commercial real estate brokerage experience
in the geographical area of Expansion Premises B to set the Fair Rental
Value for Expansion Premises B. If either Landlord or Tenant does not
appoint a broker within ten (10) days after the other party has given
notice of the name of its broker, the single broker appointed shall be the
sole broker and shall set the Fair Rental Value for Expansion Premises B.
If two (2) brokers are appointed by Landlord and Tenant as stated in this
paragraph, they shall meet promptly and attempt to set the Fair Rental
Value. If the two (2) brokers are unable to agree within ten (10) days
after the second broker has been appointed, they shall attempt to select a
third broker, meeting the qualifications stated in this paragraph within
ten (10) days after the last day the two (2) brokers are given to set the
Fair Rental Value. If the two (2) brokers are unable to agree on the third
broker, either Landlord or Tenant by giving ten (10) days' notice to the
other party, can apply to the Presiding Judge of the Superior Court of the
county in which Expansion Premises B is located for the selection of a
third broker who meets the qualifications stated in this paragraph.
Landlord and Tenant each shall bear one-half (1/2) of the cost of
appointing the third broker and of paying the third broker's fee. The third
broker, however selected, shall be a person who has not previously acted in
any capacity for either Landlord or Tenant. Within fifteen (15) days after
the selection of the third broker, the third broker shall select one of the
two Fair Rental Values submitted by the first two brokers as the Fair
Rental Value for Expansion Premises B. If either of the two brokers fails
to submit their opinion of the Fair Rental Value within the time frames set
forth above, then the single Fair Rental Value submitted shall
automatically be the initial monthly Base Rent for Expansion Premises B.
In no event shall the monthly Base Rent, on a per square foot basis, for
Expansion Premises B as determined pursuant to this First Amendment, be
less than the monthly Base Rent for the Premises on a per square foot
basis. Upon determination of the initial monthly Base Rent for Expansion
Premises B pursuant to the terms outlined above, Landlord and Tenant shall
immediately execute an amendment to the Lease. Such amendment shall set
forth among other things, the initial monthly Base Rent for Expansion
Premises B and the actual commencement date of occupancy of Expansion
Premises B.
7.4 Condition of Expansion Premises and Brokerage Commissions. Tenant
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shall accept all of the Expansion Premises in its then "As-Is" condition
and, accordingly, Landlord shall not be required to perform any additional
improvements to the Expansion Premises provided, however, that Landlord
shall install building standard carpet and paint the interior premises of
Expansion Premises A and Expansion Premises B, and install building
standard ceiling tiles in Expansion Premises B. Tenant hereby agrees that
it will solely be responsible for any and all brokerage commissions and
finder's fee payable to any broker now or hereafter procured or hired by
Tenant or who claims a commission based on any act or statement of Tenant
("Tenant's Broker") in connection with the Expansion Premises, other than
Tenant's broker stated on Page 1 of the Lease. Tenant hereby further agrees
that Landlord shall in no event or circumstance be responsible for the
payment of any such commissions and fees to Tenant's Broker until Tenant
(i) takes occupancy of the Expansion Premises and (ii) commences paying
Base Rent and Additional Rent for the Expansion Premises. The commission
payable by Landlord to Tenant's broker stated on Page 1 of the lease shall
be the commission due per the commission schedule in effect as of the date
of the Lease. The terms of this shall be binding upon and inure to the
benefit of Tenant's successors and assigns, as permitted under the Lease.
7.5 Parking: As Tenant occupies each of the Expansion Premises, Tenant's
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pro rata share of parking spaces shall increase accordingly.
8. Effect of Amendment: Except as modified herein, the terms and conditions of
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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.
9. Definitions: Unless otherwise defined in this Amendment, all terms
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not defined in this Amendment shall have the meaning set forth in the
Lease.
10. Authority: Subject to the provisions of the Lease, this Amendment
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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.
11. 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.
TENANT:
Onsale, Inc.,
a Delaware corporation
By: /s/ XXXXXX XXXXXXX
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Its: Vice President, Operations
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Date: Sept 2, 1997
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LANDLORD:
LINCOLN MENLO VI,
A CALIFORNIA LIMITED PARTNERSHIP
By: Lincoln Property Company Management Services, Inc.,
As Manager and Agent for Landlord
By: /s/
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Senior Vice President
Date: __________________________
Schedule 1
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Description of Expansion Premises
(Floor Plan)
Expansion Premises B
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0000 Xxxxxx Xxxx, Xxxxx 000
7,440 rentable square feet
[FLOOR PLAN APPEARS HERE]
Expansion Premises A
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0000 Xxxxxx Xxxx, Xxxxx 000
4,546 rentable square feet
