Unassociated Document


    


    FIRST
AMENDMENT

    


    THIS FIRST AMENDMENT (the
“Amendment”) is made and
entered into as of January 26, 2009, by and between EOP-EMBARCADERO PLACE, L.L.C., a
Delaware limited liability company (“Landlord”), and GIGOPTIX, INC. a Delaware corporation
(“Tenant”).

    


    RECITALS

    


    
      	
              A.

            	
              Landlord
      and Tenant (as successor by merger to GigOptix LLC, an Idaho limited
      liability company, formerly known as iTerra Communications LLC, an Idaho
      limited liability company) are parties to that certain lease dated March
      21, 2005, as previously amended by that certain Commencement Letter dated
      August 11, 2005 (as amended, the “Lease”).  Pursuant
      to the Lease, Landlord has leased to Tenant space currently containing
      approximately 8,982 rentable square
      feet (the “Premises”) described as
      Suite 100 on the first floor of the building commonly known as 2400
      Building located at 2400 Geng Road, Palo Alto, California (the “Building”).

            


    

    


    
      	
              B.

            	
              The
      parties acknowledge and agree that the Building and the Premises have been
      re-measured, as more particularly described in Section 6.01
      below.

            


    

    


    
      	
              C.

            	
              The
      Lease will expire by its terms on April 30, 2009 (the “Prior Termination
      Date”), and the parties wish to extend the term of the Lease on the
      following terms and conditions.

            


    

    


    NOW, THEREFORE, in
consideration of the above recitals which by this reference are incorporated
herein, the mutual covenants and conditions contained herein and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant agree as follows:

    


    
      	
              1.

            	
              Extension.  Although
      the term of the Lease is scheduled to expire on the Prior Termination
      Date, the parties wish to recalculate the Base Rent effective as of
      January 1, 2009 (the “Reset Date”). In
      addition, the term of the Lease is hereby extended until December 31, 2013
      (the “Extended
      Termination Date”).  The portion of the term of the Lease
      commencing on the date immediately following the Prior Termination Date
      (“Extension Date”)
      and ending on the Extended Termination Date shall be referred to herein as
      the “Extended
      Term”.

            


    

    


    
      	
              2.

            	
              Base
      Rent.  Notwithstanding anything to the contrary in
      Section 1.03 of the Lease, as of the Reset Date through the Extended Term,
      the schedule of Base Rent shall be as
follows:

            


    

    


    
      
        
          
            
              
                
                  
                    	
                            Period
      of Extended

                            Term

                          	 	
                            Annual
      Rate Per Square

                            Foot

                          	 	 	
                            Monthly
      Base Rent

                          	 
	
                            1/1/09
      – 4/30/09

                          	 	$	12.00	 	 	$	8,982.00	 
	
                            5/1/09
      – 12/31/09

                          	 	$	12.00	 	 	$	9,414.00	 
	
                            1/1/10
      – 12/31/10

                          	 	$	18.00	 	 	$	14,121.00	 
	
                            1/1/11
      – 12/31/11

                          	 	$	19.80	 	 	$	15,533.10	 
	
                            1/1/12
      – 12/31/12

                          	 	$	21.60	 	 	$	16,945.20	 
	
                            1/1/13
      – 12/31/13

                          	 	$	23.76	 	 	$	18,639.72	 


                  

                

              

            

          

        

      

    

    


    Notwithstanding
the foregoing, so long as no Default exists, Tenant shall be entitled to an
abatement of Base Rent, in the amount of $14,121.00 per month, for the months of
January 2010, February 2010 and March 2010.

    


    All such
Base Rent shall be payable by Tenant in accordance with the terms of the Lease,
as amended.

    


    
      	
              3.

            	
              Additional
      Security Deposit.  No additional Security Deposit shall
      be required in connection with this Amendment.  Notwithstanding
      anything to the contrary in Section 6 of the Lease, (a) so long as Tenant
      is not in Default, Landlord shall return a portion of the Security Deposit
      in an amount equal to $28,877.00 within 30 days of the final execution and
      delivery of this Amendment by the parties, and (b) the second full
      paragraph of Section 6 of the Lease (entitled, “Security Deposit”) shall
      be, as of the date hereof, null and void and of no further force or
      effect.

            


    

     

    
      
         


      

      
        1

        
          

        

      

      
         


      

    


    
      	
              4.

            	
              Expenses
      and Taxes.  With
      respect to the Extended Term, Tenant shall pay for Tenant’s Pro Rata Share
      of Expenses and Taxes in accordance with the terms of the Lease, as
      modified hereby.

            


    

    


    
      	
              5.

            	
              Improvements
      to Premises.

            


    

    


    
      	
              
              

            	
              5.01.

            	
              Condition of
      Premises.  Tenant is in possession of the Premises and
      accepts the same “as is” without any agreements, representations,
      understandings or obligations on the part of Landlord to perform or pay
      for any alterations, repairs or improvements, except as may be expressly
      provided otherwise in this
Amendment.

            


    

    


    
      	
              
              

            	
              5.02.

            	
              Responsibility for Improvements
      to Premises.  Landlord shall perform improvements to the
      Premises in accordance with the Tenant Work Letter attached hereto as
      Exhibit A.

            


    

    


    
      	
              6.

            	
              Other
      Pertinent Provisions.  Landlord and Tenant agree that,
      effective as of the date of this Amendment (unless different effective
      date(s) is/are specifically referenced in this Section), the Lease shall
      be amended in the following additional
respects:

            


    

    


    
      	
              
              

            	
              6.01.

            	
              Re-measurement of Building and
      Premises; Tenant’s Pro Rata Share.  The parties
      acknowledge and agree that, due to a scrivener’s error, the “Tenant’s Pro
      Rata Share” was misstated as “4.6762%” in Section 1.04 of the Lease, and
      as a result and retroactively effective as of the Commencement Date, the
      parties further agree that for the period starting on the Commencement
      Date and ending on the Prior Termination Date, the “Tenant’s Pro Rata
      Share” as set forth in Section 1.04 of the Lease shall mean
      “18.7125%”.  Landlord and Tenant acknowledge and agree that
      Landlord has re-measured the Building and that, according to such
      re-measurement, (i) the rentable area of the Premises is 9,414 square
      feet, and (ii) the rentable area of the Building is 49,243 square
      feet.  Accordingly, with respect to the Premises, for the period
      prior to the Extension Date, the rentable area of the Premises and the
      rentable area of the Building shall remain as set forth in the Lease.
      However, commencing on the Extension Date and continuing throughout the
      Extended Term (and any extension thereof), the rentable square footage of
      the Premises and the rentable square footage of the Building shall be
      adjusted to reflect such re-measurement and Tenant’s Pro Rata Share, as
      referenced in Section 1.04 of the Lease, is hereby amended and restated as
      of the Extension Date as 19.1174%.

            


    

    


    
      	
              
              

            	
              6.02.

            	
              Compliance with
      Law.  Without limiting Tenant’s obligations under the
      Lease, if, as a result of Tenant’s performance of any Alteration, Landlord
      becomes required under Law to perform any inspection or give any notice
      relating to the Premises or such Alteration, or to ensure that such
      alteration is performed in any particular manner, Tenant shall comply with
      such requirement on Landlord’s behalf and promptly thereafter provide
      Landlord with reasonable documentation of such
  compliance.

            


    

    


    
      	
              
              

            	
              6.03.

            	
              Liability
      Insurance.  Clause (a) of the first sentence of
      Section 14 of the Lease is hereby amended by replacing the amount
      “$2,000,000.00” set forth therein with the amount
      “$3,000,000.00.”

            


    

    


    
      	
              
              

            	
              6.04.

            	
              Application.  Notwithstanding
      anything else herein to the contrary, Sections 6.02 and 6.03 above
      shall not apply to the period expiring on the Prior Termination
      Date.

            


    

    


    
      	
              
              

            	
              6.05.

            	
              Permitted
      Use.  Notwithstanding anything to the contrary contained
      in this Lease, no portion of the Premises shall be used for any of the
      following uses:  any pornographic or obscene purposes, any
      commercial sex establishment, any pornographic, obscene, nude or semi-nude
      performances, modeling, materials, activities, or sexual conduct or any
      other use that, as of the time of the execution hereof, has or could
      reasonably be expected to have a material adverse effect on the Property
      or its use, operation or value.

            


    

    



    
      
         


      

      
        2

        
          

        

      

      
         


      

    


    
      	
              
              

            	
              6.06.

            	
              Landlord’s Notice
      Address.  The Landlord’s Notice Address set forth in
      Section 1.12 of the Lease is hereby deleted in its entirety and replaced
      with the following:

            


    

    


    
      
        
          	
                   
      LANDLORD’S NOTICE ADDRESS:

                
	 
      	 
      
	
                  EOP-Embarcadero
      Place, L.L.C.

                  c/o
      Equity Office

                  2655
      Campus Drive, Suite 100

                  San
      Mateo, California  94403

                  Attention:  Building
      manager

                	
                  with a copy to:

                  EOP-Embarcadero
      Place, L.L.C.

                  c/o
      Equity Office

                  2655
      Campus Drive, Suite 100

                  San
      Mateo, California  94403

                  Attention:  Managing
      Counsel

                   

                  with a copy to:

                  EOP-Embarcadero
      Place, L.L.C.

                  c/o
      Equity Office

                  Two
      North Riverside Plaza, Suite 2100

                  Chicago,
      Illinois  60606

                  Attention:  Lease
      Administration

                


        

      

    

    


    Notwithstanding
anything to the contrary contained in the Lease, as amended hereby, Rent shall
be made payable to the entity, and sent to the address, Landlord designates and
shall be made by good and sufficient check or by other means acceptable to
Landlord.

     

    
      	
              
              

            	
              6.07.

            	
              Asbestos
      Notification.  Tenant acknowledges that it has received
      the asbestos notification letter attached to this Amendment as Exhibit B,
      disclosing the existence of asbestos in the Building.  Tenant
      agrees to comply with the California “Connelly Act” and other applicable
      Laws, including by providing copies of Landlord’s asbestos notification
      letter to all of Tenant’s “employees” and “owners”, as those terms are
      defined in the Connelly Act and other applicable
  Laws.

            


    

    


    
      	
              
              

            	
              6.08.

            	
              Effective
      as of the date hereof, Section 1.13 of the Lease is amended to
      provide that “Building
      Service Hours” shall be 8:00 a.m. to 6:00 p.m. on Business
      Days.

            


    

    


    
      	
              
              

            	
              6.09.

            	
              The
      parties acknowledge and agree that any Leasehold Improvements (other than
      Cable) existing as of the date of this Amendment shall not be deemed
      Required Removables.

            


    

    


    
      	
              
              

            	
              6.10.

            	
              Effective
      as of the date hereof, the reference to “10%” in Section 9.01 of the Lease
      is hereby amended and restated as
“3%”.

            


    

    


    
      	
              
              

            	
              6.11.

            	
              Effective
      as of the date hereof, Section 21 of the Lease (entitled, “Relocation”) is
      hereby deleted in its entirety and is of no further force or
      effect.

            


    

    


    
      	
              
              

            	
              6.12

            	
              Extension
      Option.

            


    

    


    
      	
               
      

            	
              A.

            	
              Grant
      of Option; Conditions.  Tenant shall have the right (the
      “Extension
      Option”) to extend the Extended Term for one additional period of
      five (5) years commencing on the day following the Extended
      Termination Date and ending on the fifth anniversary of the Extended
      Termination Date (the “Second Extension Term”),
      if:

            


    

    


    
      	
               
      

            	
              1.

            	
              Landlord
      receives notice of exercise (“Extension Notice”) not
      less than 9 and not more than 12 full calendar months before the Extended
      Termination Date;

            


    

    


    
      	
               
      

            	
              2.

            	
              Tenant
      is not in Default under the Lease, as amended, beyond any applicable cure
      period when Tenant delivers its Extension Notice or when the Prevailing
      Market (defined below) rate for the Second Extension Term is determined
      pursuant to Subsection C
      below;

            


    

     

    
      
         


      

      
        3

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              3.

            	
              No
      part of the Premises is sublet when Tenant delivers its Extension Notice
      or when the Prevailing Market rate for the Second Extension Term is
      determined pursuant to Subsection C
      below; and

            


    

    


    
      	
               
      

            	
              4.

            	
              The
      Lease, as amended, has not been assigned before the Prevailing Market rate
      for the Second Extension Term is determined pursuant to Subsection C
      below.

            


    

    


    
      	
              
              

            	
              B

            	
              Terms
      Applicable to Second Extension Term.

            


    

    


    
      	
               
      

            	
              1.

            	
              During
      the Second Extension Term, (a) the Base Rent rate per rentable square
      foot shall be equal to the Prevailing Market rate per rentable square
      foot; (b) Base Rent shall increase, if at all, in accordance with the
      increases assumed in the determination of Prevailing Market rate; and
      (c) Base Rent shall be payable in monthly installments in accordance
      with the terms and conditions of the Lease, as
  amended.

            


    

    


    
      	
               
      

            	
              2.

            	
              During
      the Second Extension Term Tenant shall pay Tenant’s Pro Rata Share of
      Expenses and Taxes for the Premises in accordance with the Lease, as
      amended.

            


    

    


    
      	
               
      

            	
              C.

            	
              Procedure
      for Determining Prevailing Market.  Within
      30 days after receiving Tenant’s Extension Notice, Landlord shall
      give Tenant notice of Landlord’s estimate of the Base Rent rate for the
      Second Extension Term (the “Base Rent Notice”),
      which shall reflect the Prevailing Market rate.  Within
      15 days after receiving the Base Rent Notice, Tenant shall give
      Landlord either (i) written notice (“Binding Notice”) accepting the
      Base Rent rate described in the Base Rent Notice, or (ii) written
      notice (the “Rejection
      Notice”) rejecting such Base Rent rate.  If Tenant fails
      to give Landlord a Binding Notice or a Rejection Notice within such 15-day
      period, the Extension Option shall be of no further force or
      effect.  If Tenant timely gives Landlord a Rejection Notice,
      Landlord and Tenant shall work together in good faith to agree in writing
      upon the Prevailing Market rate for the Second Extension
      Term.  If, within 30 days after timely delivery of a
      Rejection Notice, the parties fail to agree in writing upon the Prevailing
      Market rate, Tenant’s Extension Option shall be of no further force or
      effect.

            


    

    


    
      	
               
      

            	
              D.

            	
              Extension
      Amendment.  If Tenant
      is entitled to and properly exercises its Extension Option, and if the
      Prevailing Market rate for the Second Extension Term is determined in
      accordance with Subsection C
      above, Landlord, within a reasonable time thereafter, shall prepare and
      deliver to Tenant an amendment (the “Extension Amendment”)
      reflecting changes in the Base Rent, the Extended Term, the Extended
      Termination Date, and other appropriate terms, and Tenant shall execute
      and return the Extension Amendment to Landlord within 15 days after
      receiving it.  Notwithstanding the foregoing, upon determination
      of the Prevailing Market rate for the Second Extension Term in accordance
      with Subsection C
      above, an otherwise valid exercise of the Extension Option shall be fully
      effective whether or not the Extension Amendment is
    executed.

            


    

     

    
      
         


      

      
        4

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              E.

            	
              Definition
      of Prevailing Market. For purposes of this
      Extension Option, “Prevailing Market” shall
      mean the arms-length, fair-market, annual rental rate per rentable square
      foot under extension and renewal leases and amendments entered into on or
      about the date on which the Prevailing Market is being determined
      hereunder for space comparable to the Premises in the Building and office
      buildings comparable to the Building in the Palo Alto, California
      area.  The determination of Prevailing Market shall take into
      account any material economic differences between the terms of the Lease,
      as amended, and any comparison lease or amendment, such as rent
      abatements, construction costs and other concessions, and the manner, if
      any, in which the landlord under any such lease is reimbursed for
      operating expenses and taxes.  The determination of Prevailing
      Market shall also take into consideration any reasonably anticipated
      changes in the Prevailing Market rate from the time such Prevailing Market
      rate is being determined and the time such Prevailing Market rate will
      become effective under the Lease, as
amended.

            


    

     

    
      	
               
      

            	
              F.

            	
              Subordination.  Notwithstanding
      anything herein to the contrary, Tenant’s Extension Option is subject and
      subordinate to the expansion rights (whether such rights are designated as
      a right of first offer, right of first refusal, expansion option or
      otherwise) of any tenant of the Building or the Property existing on the
      date hereof.

            


    

     

    
      	
              7.

            	
              Miscellaneous.

            


    

    


    
      	
              
              

            	
              7.01.

            	
              This
      Amendment and the attached exhibits, which are hereby incorporated into
      and made a part of this Amendment, set forth the entire agreement between
      the parties with respect to the matters set forth herein.  There
      have been no additional oral or written representations or
      agreements.  Under no circumstances shall Tenant be entitled to
      any free rent, improvement allowance, leasehold improvements, or other
      work to the Premises, or any similar economic incentives that may have
      been provided Tenant in connection with entering into the Lease, unless
      specifically set forth in this
Amendment.

            


    

    


    
      	
              
              

            	
              7.02.

            	
              Except
      as herein modified or amended, the provisions, conditions and terms of the
      Lease shall remain unchanged and in full force and
  effect.

            


    

    


    
      	
              
              

            	
              7.03.

            	
              In
      the case of any inconsistency between the provisions of the Lease and this
      Amendment, the provisions of this Amendment shall govern and
      control.

            


    

    


    
      	
              
              

            	
              7.04.

            	
              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 has executed and delivered it to
  Tenant.

            


    

    


    
      	
              
              

            	
              7.05.

            	
              The
      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.

            


    

    


    
      	
              
              

            	
              7.06.

            	
              Tenant
      agrees to indemnify and hold Landlord, its trustees, members, principals,
      beneficiaries, partners, officers, directors, employees, mortgagee(s) and
      agents, and the respective principals and members of any such agents
      harmless from all claims of any brokers other than Derek Johnson and Steve
      Clark of Jones Lang LaSalle claiming to have represented Tenant in
      connection with this Amendment.  Landlord agrees to indemnify
      and hold Tenant, its trustees, members, principals, beneficiaries,
      partners, officers, directors, employees, and agents, and the respective
      principals and members of any such agents harmless from all claims of any
      brokers claiming to have represented Landlord in connection with this
      Amendment.  Any assistance rendered by any agent or employee of
      any affiliate of Landlord in connection with this Amendment or any
      subsequent amendment or modification hereto has been or will be made as an
      accommodation to Tenant solely in furtherance of consummating the
      transaction on behalf of Landlord, and not as agent for
      Tenant.

            


    

     

    
      	
              
              

            	
              7.07.

            	
              Each
      signatory of this Amendment represents hereby that he or she has the
      authority to execute and deliver it on behalf of the party hereto for
      which such signatory is acting.

            


    


    
      
         


      

      
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    IN WITNESS WHEREOF, Landlord
and Tenant have duly executed this Amendment as of the day and year first above
written.

    


    
      
        	 
      	
                LANDLORD:

              
	 
      	 
      
	 
      	
                EOP-EMBARCADERO
      PLACE, L.L.C., a Delaware

                limited
      liability company

              
	 
      	 
      
	 
      	
                By:

              	
                           
      /s/ Kenneth Young

              
	 
      	
                Name:

              	
                Kenneth
      Young

              
	 
      	
                Title:

              	
                Vice
      President – Leasing

              
	 
      	 
      
	 
      	
                TENANT:

              
	 
      	 
      
	 
      	
                GIGOPTIX,
      INC. a Delaware corporation

              
	 
      	 
      
	 
      	
                By:

              	
                           
      /s/ Avi S. Katz

              
	 
      	
                Name:

              	
                Avi
      S. Katz

              
	 
      	
                Title:

              	
                Chief
      Executive
Officer