Exhibit 10.49
FIRST AMENDMENT TO LEASE
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THIS FIRST AMENDMENT TO LEASE (this "Amendment") is dated for reference
purposes only as of October 31, 2005, by and between CARRAMERICA REALTY
OPERATING PARTNERSHIP, L.P., a Delaware limited partnership ("Landlord"), and
YDI WIRELESS, INC., a Delaware corporation ("Tenant").
RECITALS
A. Pursuant to that certain Lease dated as of May 10, 2005 (the "Existing
Lease"), by and between Landlord and Proxim Corporation, a Delaware corporation
("Proxim"), Proxim leased from Landlord certain premises (the "Existing
Premises") containing approximately 74,979 rentable square feet, located on a
portion of the first floor and the entirety of the second floor of the building
located at 2115 O'Nel Drive, San Jose, California (the "Building").
B. On July 27, 2005, Tenant acquired substantially all of the assets of
Proxim Corporation and, as of that date, agrees to be bound by and perform, as a
direct obligation of Tenant to Landlord, each and all of the obligations, terms,
covenants and agreements of the "Tenant" under the Lease.
C. Landlord and Tenant desire to amend the Existing Lease to (i) add to
the Existing Premises the remainder of the first floor of the Building, which
consists of approximately 19,985 rentable square feet (the "Expansion Space"),
and is more particularly shown as the single-hatched portion of Exhibit A-1 to
the Existing Lease, and (ii) make certain other amendments to the Existing
Lease, all subject to, and on the basis of, the terms, covenants and conditions
hereinafter set forth. The Existing Lease, as amended by this Amendment, is
referred to as the "Lease."
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant hereby agree as follows:
1. Use of Defined Terms; Recitals; Effective Date.
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1.1 Definitions; Recitals. Unless otherwise defined herein or unless
the context clearly requires otherwise, all capitalized terms used herein shall
have the defined meanings ascribed to them in the Existing Lease. The provisions
of the Recitals above are fully incorporated herein by this reference.
1.2 Effective Date. Unless otherwise specifically provided herein,
all provisions of this Amendment shall be effective as of November 1, 2005.
2. Lease Assignment and Assumption. Effective as of July 27, 2005, Tenant
hereby accepts all of Proxim's right, title and interest in and to the Lease,
and, from and after that date, assumes and agrees to be bound by and perform, as
a direct obligation of Tenant to Landlord, each and all of the obligations,
terms, covenants and agreements of the "Tenant" under the Lease.
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3. Expansion Space.
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3.1 Commencement Date. For purposes of this Amendment, the
"Expansion Space Commencement Date" means November 1, 2005.
3.2 Termination Date. The termination date for the Expansion Space
shall be June 30, 2008, which is the Termination Date under the Lease for the
Existing Premises.
4. Amendments to Lease.
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4.1 Premises. Effective as of the Expansion Space Commencement Date,
all references in the Lease to the "Premises" shall include the Expansion Space,
and Item 2 of the Schedule (set forth on pages i. through iii. of the Lease)
(the "Schedule") shall be deleted in its entirety and replaced by the following:
"2. Premises: The entirety of the Building located at 2115
O'Nel Drive, San Jose, California."
4.2 Rentable Square Footage of the Premises. Effective as of the Expansion
Space Commencement Date, Item 4 of the Schedule shall be deleted in its entirety
and replaced by the following:
"4. Rentable Square Footage of the Premises: Approximately
94,874 rentable square feet"
4.3 Tenant's Proportionate Share. Effective as of the Expansion
Space Commencement Date, Item 5 of the Schedule shall be deleted in its entirety
and replaced by the following:
"5. Tenant's Proportionate Share: 100%"
4.4 Parking Stalls. Effective as of the Expansion Space Commencement
Date, Item 13 of the Schedule shall be deleted in its entirety and replaced by
the following:
"13. Parking Stalls: Three hundred sixty-one (361) unassigned
stalls"
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4.5 Base Rent.
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(a) Base Rent for the Expansion Space shall be payable in
consecutive monthly installments, in advance, together with Tenant's payments of
Base Rent for the Existing Premises.
(b) Effective as of the Expansion Space Commencement Date,
Item 14 of the Schedule shall be deleted in its entirety and replaced by the
following:
"14. Base Rent:
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EXISTING EXPANSION
PREMISES SPACE TOTAL
MONTHLY MONTHLY MONTHLY
PERIOD BASE RENT BASE RENT BASE RENT
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July 1, 2005 - October 31, 2005 $63,732.15 N/A $63,732.15
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November 1, 2005 - November 30, 2005 $63,732.15 $0.00 $63,732.15
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December 1, 2005 - June 30, 2006 $63,732.15 $16,787.40 $80,519.55
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July 1, 2006 - June 30, 2007 $67,481.10 $17,986.50 $84,467.60
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July 1, 2007 - June 30, 2008 $71,230.05 $18,985.75 $90,215.80
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5. Condition of Expansion Space.
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5.1 As Is; Personal Property. Except for Landlord's Work (as defined
below in Section 5.2), Landlord is leasing the Expansion Space to Tenant "as
is", without any obligation of Landlord to alter, remodel, improve, repair or
decorate any part of the Expansion Space, to perform any other construction or
other work of improvement upon the Expansion Space, or to provide Tenant with
any construction or refurbishing allowance whatsoever, and without any express
or implied representations or warranties of any kind, including, without
limitation, any representation or warranty regarding the condition of the
Expansion Space or the Building or the suitability of either for the conduct of
Tenant's business.
5.2 Landlord's Work. Promptly following the Expansion Space
Commencement Date, Landlord shall provide up to 10 electrical drops in the
Expansion Space, re-carpet one conference room and replace all stained ceiling
tiles, all to the reasonable satisfaction of Landlord and Tenant ("Landlord's
Work"). Tenant hereby acknowledges that Landlord's performance of Landlord's
Work may be conducted during normal business hours and may create disruption,
noise, dust or temporarily leave debris in the Premises. Landlord shall,
however, use commercially reasonable efforts to minimize any interference with
the conduct of Tenant's business in the Premises during the performance of
Landlord's Work. Tenant hereby agrees that Landlord's Work and Landlord's
actions in connection therewith shall in no way constitute a constructive
eviction of Tenant nor entitle Tenant to any abatement of Rent. Subject
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to Landlord's obligations under this Section 5.2, Landlord shall have no
responsibility, and shall in no way be liable to Tenant, for any direct or
indirect injury to or interference with Tenant's business arising from
Landlord's Work, nor shall Tenant be entitled to any compensation or damages
from Landlord for loss of the use of the whole or any part of the Premises or of
personal property or improvements resulting therefrom or Landlord's actions in
connection therewith, or for any inconvenience or annoyance occasioned by
Landlord's Work or Landlord's actions in connection therewith.
6. Use. Tenant shall use the Expansion Space only for the purposes set
forth in Item 7 of the Schedule. Landlord and Landlord's agents have made no
representations or promises with respect to the Expansion Space or this
Amendment, except as expressly set forth herein, and Tenant acknowledges and
agrees that the Expansion Space is suited for the use intended by Tenant, and is
in good and satisfactory condition, subject, however, to completion of
Landlord's Work and Landlord's maintenance and repair obligations under the
Lease. Tenant represents and warrants to Landlord that prior to executing this
Amendment, Tenant made such investigations as it deemed appropriate with respect
to the suitability of the Expansion Space for its intended use, and determined
that the same is suitable for such intended use.
7. Tenant's Certification. Tenant hereby certifies to Landlord that, as of
the execution and delivery of this Amendment by Tenant to Landlord, there are no
existing defenses against the enforcement of any of the obligations of Tenant
under the Lease, and Landlord is not in default under the Lease by reason of its
failure to perform any obligations thereunder, and there is no circumstance,
event, condition or state of facts which, by the passage of time or the giving
of notice, or both, could entitle Tenant to any such defenses or constitute or
result in such a default.
8. Real Estate Brokers. Tenant represents and warrants that Tenant has not
had any dealings with any broker in connection with the negotiation or execution
of this Amendment, and Tenant agrees to indemnify Landlord and hold Landlord
harmless from any and all costs (including attorneys' fees), expenses or
liability for commissions or other compensation claimed by any broker or agent
claiming to have had dealings with Tenant in connection with this Amendment.
9. Miscellaneous.
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9.1 Except as modified by this Amendment, all of the terms,
conditions and provisions of the Existing Lease shall remain in full force and
effect and are hereby ratified and confirmed.
9.2 To the extent the terms of the Existing Lease and this Amendment
are inconsistent, the terms of this Amendment shall control.
9.3 The submission of this Amendment to Tenant for examination or
execution does not create an option or constitute an offer to Tenant to amend
the Existing Lease on the terms and conditions contained herein, and this
Amendment shall not become effective as an amendment to the Existing Lease
unless and until it has been executed and delivered by both Landlord and Tenant.
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9.4 This Amendment contains the entire agreement of Landlord and
Tenant with respect to the subject matter hereof. It is understood that there
are no oral agreements between Landlord and Tenant affecting the Existing Lease
as hereby amended, and this Amendment supersedes and cancels any and all
previous negotiations, representations, agreements and understandings, if any,
between Landlord and Tenant and their respective agents with respect to the
subject matter thereof, and none shall be used to interpret or construe the
Lease. Tenant acknowledges that all prior communications from Landlord or its
agents are not and were not, and shall not be construed to be, representations
or warranties of Landlord or its agents as to the matters communicated, and have
not and will not be relied upon by Tenant.
IN WITNESS WHEREOF, the parties have caused this First Amendment to Lease
to be executed as of the date first written above.
LANDLORD:
CARRAMERICA REALTY OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: CarrAmerica Realty Corporation,
a Maryland corporation, its general partner
By: /s/ Christopher Peatross
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Christopher Peatross
Managing Director
Date of Execution: 11/14/05
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TENANT:
YDI WIRELESS, INC.,
a Delaware corporation
By: /s/ David E. Olson
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Name: President
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Title: David Olson
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[chairman, president or vice-president]
By: /s/ Patrick L. Milton
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Name: Pat Milton
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Title: CFO
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[secretary, assistant secretary, chief financial
officer or assistant treasurer]
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