1
EXHIBIT 10.30
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is dated for reference purposes only as
April 18, 2000, and is part of that Lease dated January 12, 1996 together with
the Lease and Exhibits (collectively, the "Lease") by and between AMB PROPERTY,
L.P., a Delaware limited partnership ("Landlord") Successor-in-Interest to
EASTRICH NO. 137 CORPORATION, c/o Insignia-O'Donnell Commercial Group, Inc. and
HARMONIC, INC., a Delaware corporation ("Tenant"), and is made with reference to
the following facts:
A. The Premises currently leased by Tenant pursuant to the Lease
consists of 110,160 rentable square feet commonly known as 549 Baltic Way, City
of Sunnyvale, California.
B. The Lease Term for said Premises currently expires on August 1, 2006.
C. Tenant and Landlord wish to amend the Lease on the Terms and
Conditions set forth in this First Amendment to Lease.
NOW, THEREFORE, Landlord and Tenant hereby agree that the Lease Terms
are amended as follows:
1. Lease Term: Article 8 is hereby amended to provide that the
Lease Term shall be extended through and including September 30, 2010.
2. Base Monthly Rent: Commencing August 2, 2006, Article 9 is
hereby amended to provide for the Base Monthly Rent as follows:
August 2, 2006 Adjustment to Fair market Value (FMV)
- -------------- -------------------------------------
August 2, 2006 - December 31, 2006: $2.60 NNN per square foot per month or FMV
January 1, 2007 - December 31, 2007: $2.70 NNN per square foot per month or FMV
January 1, 2008 - December 31, 2008: $2.80 NNN per square foot per month of FMV
January 1, 2009 - December 31, 2009: $2.90 NNN per square foot per month or FMV
January 1, 2010 - September 30, 2010: $3.00 NNN per square foot per month or FMV
A. The Base Monthly Rent for the Period after August 2,
2006 shall be the greater of (i) one hundred percent (100%) of the Base Monthly
Rent Schedule, or (ii) one hundred percent (100%) of the then fair market
monthly rent determined as of the commencement of the Period in question based
upon like buildings with like improvements in the area within the boundaries of
Highways 101, 880 and the San Francisco Bay. However, the Fair Market Value Rent
as determined by appraisal shall not exceed $4.00 per square foot per month in
August 2006 with 5% annual increases through the balance of the term. The Period
shall contain no free rent and the Premises shall be taken "as-is". If the
parties are unable to agree upon the fair market monthly rent for the Premises
for the option period in question at least seventy-five (75) days prior to the
commencement of the option period in question, then the fair market monthly rent
shall be determined by appraisal conducted pursuant to subparagraph B.
B. In the event it becomes necessary to determine by
appraisal the fair market rent of the Premises for the purpose of establishing
the Base Monthly Rent during the Period, then such fair market monthly rent
shall be determined by three (3) real estate appraisers, all of whom shall be
members of the American Institute of Real Estate Appraisers with not less than
five (5) years experience appraising real property (other than residential or
agricultural property) located in Santa Clara County, California, in accordance
with the following procedures:
(1) The party demanding an appraisal (the "Notifying
Party") shall notify the other party (the "Non-Notifying Party") thereof by
delivering a written demand for appraisal, which demand, to be effective, must
give the name, address, and qualifications of an appraiser selected by the
Notifying Party. Within ten (10) days of receipt of said demand, the
Non-Notifying Party shall select its appraiser and notify the Notifying Party,
in writing, of the name, address, and qualifications of an appraiser selected by
it. Failure by the Non-Notifying Party to select a qualified appraiser within
said ten (10) day period shall be deemed a waiver of its right to select a
second appraiser on its own behalf and the Notifying Party shall select a second
appraiser on behalf of the Non-Notifying Party within five (5) days after the
expiration of said ten
2
(10) day period. Within ten (10) days from the date the second appraiser shall
have been appointed, the two (2) appraisers so selected shall appoint a third
appraiser. If the two appraisers fail to select a third qualified appraiser, the
third appraiser shall be selected by the American Arbitrations Association or if
it shall refuse to perform this function, then at the request of either Landlord
or Tenant, such third appraiser shall be promptly appointed by the then
Presiding Judge of the Superior Court of the State of California for the County
of Santa Clara.
(2) The three (3) appraisers so selected shall meet
in San Jose, California, not later than twenty (20) days following the selection
of the third appraiser. At said meeting the appraisers so selected shall attempt
to determine the fair market monthly rent of the Premises for the period in
question (including the timing and amount of periodic increases).
(3) If the appraisers so selected are unable to
complete their determinations in one meeting, they may continue to consult at
such times as they deem necessary for a fifteen (15) day period from the date of
the first meeting, in an attempt to have at least two (2) of them agree. If, at
the initial meeting or at any time during said fifteen (15) day period, two (2)
or more of the appraisers so selected agree on the fair market rent of the
Leased Premises, such agreement shall be determinative and binding on the
parties hereto, and the agreeing appraisers shall, in simple letter form
executed by the agreeing appraisers, forthwith notify both Landlord and Tenant
of the amount set by such agreement.
(4) If two (2) or more appraisers do not so agree
within said fifteen (15) day period, then each appraiser shall, within five (5)
days after the expiration of said fifteen (15) day period, submit his
independent appraisal in simple letter form to Landlord and Tenant stating his
determination of the fair market rent of the Premises for the period in
question. The parties shall then determine the fair market rent for the Premises
by determining the average of the fair market rent set by each of the
appraisers. However, if the lowest appraisal is less than eighty-five percent
(85%) of the middle appraisal then such lowest appraisal shall be disregarded
and/or if the highest appraisal is greater than one hundred fifteen percent
(115%) of the middle appraisal then such highest appraisal shall be disregarded.
If the fair market rent set by any appraisal is so disregarded, then the average
shall be determined by computing the average set by the other appraisals that
have not been disregarded.
(5) Nothing contained herein shall prevent Landlord
and Tenant from jointly selecting a single appraiser to determine the fair
market rent of the Premises, in which event the determination of such appraisal
shall be conclusively deemed the fair market rent of the Premises.
(6) Each party shall bear the fees and expenses of
the appraiser selected by or for it, and the fees and expenses of the third
appraiser (or the joint appraiser if one joint appraiser is used) shall be borne
fifty percent (50%) by Landlord and fifty percent (50%) by Tenant.
3. Security Deposit: Article 10 is hereby amended to provide for
an increase in the Security Deposit of $227,480.00 which Tenant has provided
Landlord upon signature hereon, for a total of $330,480.00.
4. Retained Real Estate Brokers: Article 12 is amended to provide
that Tenant is represented exclusively by Cornish & Carey and Landlord is
represented exclusively by Orchard Properties.
5. Condition of Premises: Tenant is fully familiar with the
Premises by way of its occupancy and accepts the Premises for the extended term
created hereby in their as-is condition, with all latent and patent faults,
without warranty or obligation on the part of Landlord to provide or pay for any
interior improvements or tenant improvement allowances. Upon timely exercise of
the option to extend, Tenant shall take the Premises for the Extended Term on
the same basis.
6. Year 2000 Disclaimer: Landlord hereby disclaims any liability
for any and all damages, injuries or other losses, whether ordinary, special,
consequential, punitive or otherwise, arising out of, relating to, or in
connection with, (a) the failure of any automated,
3
computerized and/or software system or other technology used in, on, or about
the Property or relating to the management or operation of the Property to
accurately receive, provide or process date/time data (including, but not
limited to, calculating, comparing and sequencing) both before and after
September 9, 1999, and before, after, during and between the years 1999 A. D.
and 2000 A. D., and leap year calculations and, or (b) the malfunction, ceasing
to function or providing of invalid or incorrect results by any such technology
as a result of date/time data. The foregoing disclaimer shall apply to any such
technology used in, on, or about the Property or that affects the Property,
whether or not such technology is within the control of Owner or any of Owner's
agents or representatives. THE FOREGOING DISCLAIMER INCLUDES A DISCLAIMER OF ALL
WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE MATTERS
DESCRIBED HEREIN, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
7. Continuing Obligation: Except as expressly set forth in this
Amendment, all terms and conditions of the Lease remain in full force and
effect, and all terms and conditions of the Lease are incorporated herein as
though set forth at length.
8. Effect of Amendment: This Amendment modifies the Lease. In the
event of any conflict or discrepancy between the Lease and/or any other previous
documents between the parties and the provisions of this Amendment, then the
provisions of this Amendment shall control. Except as modified herein, the Lease
shall remain in full force and effect.
9. Authority: Each individual executing this Amendment on behalf
of Tenant represents and warrants that he or she is duly authorized to and does
execute and deliver this Amendment pursuant to express authority from Tenant
pursuant to and in accordance with the By-Laws and the other organic documents
of the Tenant corporation.
10. Entire Agreement: The Lease, as modified by this Amendment,
constitutes and contains the entire agreement between the parties, and there are
no binding agreements or representations between the parties except as expressed
herein. Tenant acknowledges that neither Landlord nor Landlord's Agents have
made any legally binding representations or warranties as to any matter except
for such matters binding representations or warranties as to any matter except
for such matters which are expressly set forth herein, including any
representations or warranties relating to the condition of the Premises or the
improvements thereto or the suitability of the Premises or the Project for
Tenant's business.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First
Amendment to be effective as of the date first set forth above.
LANDLORD: TENANT:
AMB PROPERTY, L.P. HARMONIC, INC.
a Delaware limited partnership a Delaware corporation
By: AMB Property Corporation,
a Maryland corporation By: /s/ ROBIN N. DICKSON
-------------------------------
By: /s/ JOHN L. ROSSI Robin N. Dickson
------------------------------- Its: Chief Financial Officer
John L. Rossi -------------------------------
Its: Regional Manager
By:
Telephone: (415)394-9000 --------------------------------
------------------------ Its:
-------------------------------
Facsimile: (415)394-0903
------------------------ Telephone: (408)542-2661
------------------------
Executed at: 505 Montgomery Street
6th Floor Facsimile: (408)542-2516
San Francisco, CA 94111 ------------------------
Date: 5/12/00 Executed at: 549 Baltic Way
----------------------------- Sunnyvale, CA 94089
Date:
-----------------------------
4
EXHIBIT I
RULES AND REGULATIONS
This Exhibit sets forth the rules and regulations governing Tenant's use
of the Common Area and the Premises leased to Tenant pursuant to the terms,
covenants and conditions of the Lease to which this Exhibit is attached. Unless
otherwise defined, capitalized terms used herein shall have the same meanings
as set forth in the Lease. In the event of any conflict or inconsistency
between this Exhibit and the Lease, the Lease shall control.
1. Tenant shall not place anything or allow anything to be placed near
the glass of any window, door, partition or wall which may appear unsightly
from outside the Premises.
2. The walls, walkways, sidewalks, entrance passages, courts and
vestibules shall not be obstructed or used for any purpose other than ingress
and egress of pedestrian travel to and from the Premises, and shall not be used
for loitering or gathering, or to display, store or place any merchandise,
equipment or devices, or for any other purpose. The walkways, entrance
passageways, courts, vestibules and roof are not for the use of the general
public and Landlord shall in all cases retain the right to control and prevent
access thereto by all persons whose presence in the judgment of the Landlord
shall be prejudicial to the safety, character, reputation and interests of the
Building and its tenants, provided that nothing herein contained shall be
construed to prevent such access to persons with whom Tenant normally deals in
the ordinary course of Tenant's business unless such persons are engaged in
illegal activities. No tenant or employee or invitee of any tenant shall be
permitted upon the roof of the Building.
3. No awnings or other projection shall be attached to the outside walls
of the Building. No security bars or gates, curtains, blinds, shades or screens
shall be attached to or hung in, or used in connection with, any window or door
of the Premises without the prior written consent of Landlord. Neither the
interior nor exterior of any windows shall be coated or otherwise sunscreened
without the express written consent of Landlord.
4. Tenant shall not in any way deface any part of the Premises or the
Building. Tenant shall not lay linoleum, tile, carpet or other similar floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved by Landlord in writing. The expense of repairing any
damage resulting from a violation of this rule or removal of any floor covering
shall be borne by Tenant.
5. The toilet rooms, urinals, wash bowls and other plumbing apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever shall be thrown
therein. The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the Tenant.
6. Landlord shall direct electricians as to the manner and location of
any future telephone wiring. No boring or cutting for wires will be allowed
without the prior consent of Landlord. The locations of the telephones, call
boxes and other office equipment affixed to the Premises shall be subject to
the prior written approval of Landlord.
1
5
7. No exterior storage shall be allowed at any time without the prior
written approval of Landlord. The Premises shall not be used for cooking or
washing clothes without the prior written consent of Landlord, or for lodging
or sleeping or for any immoral or illegal purposes.
8. Tenant shall not make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them, whether by the use of
any musical instrument, radio, phonograph, machinery, or otherwise. Tenant
shall not use, keep or permit to be used, or kept, any foul or obnoxious gas or
substance in the Premises or permit or suffer the Premises to be used or
occupied in any manner offensive or objectionable to Landlord or other
occupants of this or neighboring buildings or premised by reason of any odors,
fumes or gases.
9. Neither Tenant nor any of Tenant's Agents shall at any time bring or
keep upon the Premises any toxic, hazardous, inflammable, combustible or
explosive fluid, chemical or substance without the prior written consent of
Landlord.
10. No animals shall be permitted at any time within the Premises.
11. Tenant shall not use the name of the Building or the Project in
connection with or in promoting or advertising the business of Tenant, except
as Tenant's address, without the prior written consent of Landlord. Landlord
shall have the right to prohibit any advertising by Tenant which uses the name
of, or uses pictures or depictions or, the Building or the Project if such
advertising in Landlord's reasonable opinion, tends to impair the reputation of
the Project or its desirability for its intended uses, and upon written notice
from Landlord Tenant shall refrain from or discontinue such advertising.
12. Canvassing, soliciting, peddling, parading, picketing, demonstrating
or otherwise engaging in any conduct that unreasonably impairs the value or use
of the Premises or the Project are prohibited and Tenant shall cooperate to
prevent the same.
13. All equipment of any electrical or mechanical nature shall be placed
by Tenant on the Premises in such a way as to best minimize, absorb and prevent
any vibration, noise or annoyance. No equipment of any type shall be placed on
the Premises which in Landlord's opinion exceeds the load limits of the floor
or otherwise threatens the soundness of the structure or improvements of the
Building.
14. All furniture, equipment and freight shall be moved in and out of the
Building only at hours and in accordance with rules established by Landlord,
and shall not impair vehicular and pedestrian circulation in the Common Area.
Landlord will not be responsible for loss or damage to any furniture,
equipment, or other personal property of Tenant from any cause.
15. No air conditioning unit or other similar apparatus shall be
installed or used by Tenant without the prior written consent of Landlord.
16. No aerial antenna shall be erected on tile roof or exterior walls of
the Premises, or on the grounds, without in each instance the prior written
consent of Landlord. Any aerial or antenna so installed by or on behalf of
Tenant without such written consent shall be subject to removal by Landlord at
any time without prior notice at the expense of Tenant, and Tenant shall upon
Landlord's demand pay a reasonable removal fee to Landlord.
2
6
17. The entire Premises, including vestibules, entrances, doors,
fixtures, windows and plate glass, shall at all times be maintained in a safe,
neat and clean condition by Tenant. All trash, refuse and waste materials shall
be regularly removed from the Premises by Tenant and placed in the containers
at the locations designated by Landlord for refuse collection. All cardboard
boxes must be "broken down" prior to being placed in the trash containers. All
styrofoam chips must be bagged or otherwise contained prior to placement in the
trash containers, so as not to constitute a nuisance. Pallets may not be
disposed of in the trash containers or enclosures. The burning of trash, refuse
or waste materials is prohibited.
18. All keys for the Premises shall be provided to Tenant by Landlord and
Tenant shall return to Landlord any of such keys so provided upon the
termination of the Lease. Tenant shall not change locks or install other locks
on doors of the Premises without the prior written consent of Landlord, except
for Secure Areas within the Premises. In the event of loss of any keys furnished
by Landlord for Tenant, Tenant shall pay to Landlord the costs thereof.
19. No person shall enter or remain within the Project while intoxicated
or under the influence of liquor or drugs. Landlord shall have the right to
exclude or expel from the Project any person who, in the absolute discretion of
Landlord, is under the influence of liquor or drugs.
Tenant agrees to comply with all of the foregoing Rules and Regulations.
Should Tenant not abide by these Rules and Regulations, Landlord or any
"Operator," "Association" or "Declarant" under any Restrictions may serve a
notice to correct the deficiencies. If Tenant has not corrected the
deficiencies by the end of the notice period set forth in Section 15.1(g) of
the Lease, Tenant will be in default of the Lease, and Landlord and/or its
designee shall have the right, without further notice, to cure the violation at
Tenant's expense.
Landlord reserves the right to amend or supplement the foregoing Rules and
Regulations and to adopt and promulgate additional reasonable rules and
regulations applicable to the Premises. Notice of such rules and regulations
and amendments and supplements thereto, if any, shall be given to the Tenant.
Notwithstanding anything to the contrary herein or in the Lease, Tenant shall
not be required to comply with any new rules, regulations or restrictions,
unless the same apply generally and non-discriminatorily to the occupants of
the Project, do not unreasonably interfere with Tenant's use of the Premises or
Tenant's parking rights and do not materially increase Tenant's obligations or
decrease Tenant's rights under this Lease.
Neither Landlord nor Landlord's Agents or any other person or entity shall
be responsible to Tenant or to any other person for the ignorance or violation
of these Rules and Regulations by any other tenant or other person. Tenant
shall be deemed to have read these Rules and Regulations and to have agreed to
abide by them as a condition precedent, waivable only by Landlord, to Tenant's
occupancy of the Premises.
3