LEASE
THIS LEASE is made on the 6th day of April, 1989 by and between
WDT-Shoreway hereinafter call Lessor') and Domestic Automation Company
(hereinafter called Lessee').
IN CONSIDERATION OF THE MUTUAL PROMISES HEREIN CONTAINED, THE PARTIES AGREE
AS FOLLOWS:
1. PREMISES. Lessor leases to Lessee and Lessee leases from Lessor, upon
the terms and conditions herein set forth, those certain Premises
("Premises") situated in the City of Xxx Xxxxxx, Xxxxxx xx Xxx Xxxxx,
Xxxxxxxxxx, as outlined in Exhibit "A" attached hereto and described
as follows: + 22,464 sq. ft, at 000 Xxxxxxxx Xxxx, Xxxxx 0000, 94070
2. TERM. The term of this Lease shall be for five (5) years commencing
on July 1, 1989 and ending on June 30, 1994 unless sooner terminated
pursuant to any provision hereof.
3. RENT. Lessee shall pay to Lessor rent for the Premises of Twenty Six
Thousand Nine Hundred Fifty-Seven and 00/100 Dollars ($26,957.00) per
month in lawful money of the United States of America, subject to
adjustment as provided in Section A of this Paragraph. Rent shall be
paid without deduction or offset, prior notice or demand, at such
place as may be designated from time to time by Lessor as follows:
$9,660.00 shall be paid upon execution of the Lease, which sum
represents the amount of the first month's rent. A deposit of
$15,000.00 as a Security Deposit shall be made by Lessee and held by
Lessor pursuant to Paragraph 5 of this Lease and shall also be paid
upon execution of the Lease. [see NOTE 1] $26,957.00 [see Note 2]
shall be paid on July 1, 1989 and in advance on the first (1st) day
of each succeeding calendar month until June 1994. Rent for any period
during the term hereof which is for less than one (1) full month shall
be a pro-rata portion of the monthly rent payment. Lessee
acknowledges that late payment by Lessee to Lessor of rent or any
other payment due Lessor will cause Lessor to incur costs not
contemplated by this Lease, the exact amount of such costs being
extremely difficult and impracticable to fix. Such costs include,
without limitation, processing and accounting charges, and late
charges that may be imposed on Lessor by the terms of any encumbrance
and note secured by any encumbrance covering the Premises. Therefore,
if any installment of rent or other payment due from Lessee is not
received by Lessor within NINE (9) days following the date it is due
and payable, Lessee shall pay to Lessor an additional sum of ten
percent (10%) of the overdue amount as a late charge. The parties
agree that this late charge represents a fair and reasonable estimate
of the costs that Lessor will incur by reason of late payment by
Lessee. Acceptance of any later charge shall not constitute a waiver
of Lessee's default with respect to the overdue amount, nor prevent
Lessor from exercising any of the other rights and remedies available
to Lessor.
NOTE 1: The security deposit shall be increased by Six Thousand and 00/ 100
Dollars ($6,000.00) the earlier of (i) March 15, 1990 or (ii) the return of the
security deposit by Tenant's current sublessor at Vintage Park.
NOTE 2: Except that during months 1 through 6, inclusive, of the term, the
monthly rent shall be $9,660.00.
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EXCEPT AS PROVIDED WITHIN, if for any reason whatsoever, Lessor can
not deliver possession of the Premises on the commencement date set
forth in Paragraph 2 above, this Lease shall not be void or voidable,
nor shall Lessor be liable to Lessee for any loss or damage resulting
therefrom; but in such event, Lessee shall not be obligated to pay
rent until possession of the Premises is tendered to Lessee and the
commencement and termination dates of this Lease shall be revised to
conform to the date of Lessor's delivery of possession. EXCEPT AS
PROVIDED WITHIN, In the event that Lessor shall permit Lessee to
occupy the Premises prior to the commencement of this Lease, such
occupancy shall be subject to all of the provisions of this Lease,
including the commencement of rent and obligation to maintain
insurance.
4. OPTION TO EXTEND TERM.
A. Lessee shall have the option to extend the term on all the
provisions contained in this Lease for two (2)-five (5) year
period(s) ("extended term") at an adjusted rental calculated as
provided in Subparagraph B below on conditions that:
a. Lessee has given to Lessor written notice of exercise of
that option ("Option notice") at least seven (7) months, but
not more than twelve (12) months before the expiration of
the initial term, or extended term(s), as the case may be.
b. Lessee is not in default in the performance of any of the
terms and conditions of the Lease on the data of giving the
option Notice, and Lessee is not in default on the date the
extended term is to commence.
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SEE PARAGRAPH 35 OF ADDENDUM ATTACHED HERETO AND MADE PART HEREOF.
5. SECURITY DEPOSIT. Lessor acknowledges that Lessee has deposited with
Lessor a Security Deposit in the sum of $ 15,000,00 [see Note *] to
secure the full and faithful performance by Lessee of each term,
covenant, and condition of this Lease. If Lessee shall at any time
fail to make any payment or fail to keep or perform any term,
covenant, or condition on its part to be made or performed or kept
under this Lease, Lessor may, but shall not be obligated to and
without waiving or releasing Lessee from any obligation under this
Lease, use, apply, or retain the whole or any part of said Security
Deposit (a) to the extent of any sum due to Lessor: or (b) to make any
required payment on Lessee's behalf; or (c) to compensate Lessor for
any loss, damage, attorneys' fees or expense sustained by Lessor due
to Lessee's default. In such event, Lessee shall, within five (5)
days of written demand by Lessor, remit to Lessor sufficient funds to
restore the Security Deposit to its original sum. No interest shall
accrue on the Security Deposit. Should Lessee comply with all the
terms, covenants and conditions of this Lease and at the end of the
term of this Lease leave the Premises in the condition required by
this Lease, then said Security Deposit or any balance thereof, less
any sums owing to Lessor, shall be returned to Lessee within fifteen
(15) days after the termination of this Lease and vacancy of the
Premises by Lessee. Lessor can maintain the Security Deposit separate
and apart from Lessor's general funds, or can co-mingle the Security
Deposit with Lessor's general and other funds.
6. USE OF THE PREMISES. The Premises shall be used exclusively for the
purpose of gen. office, administration, R&D, manufacturing and
distribution of electronic parts & other related legal uses as set
forth in the existing zoning ordinances in the City of San Xxxxxx.
Lessee shall not use, or permit the Premises, or any part thereof, to
be used, for any purpose other than the purpose for which the Premises
are hereby leased; and no use shall be made or permitted to be made of
the Premises, nor acts done, which will increase the existing rate of
insurance upon the building in which the Premises are located, (EXCEPT
THAT LESSEE MAY PAY THE COST OF SUCH INSURANCE INCREASE), or cause a
cancellation of any insurance policy covering said building, or any
part thereof, nor shall Lessee sell or permit to be kept, used or
sold, in or about the Premises, any article which may be prohibited by
the standard form of fire insurance policies. Lessee shall not commit,
or suffer to be committed, any waste upon the Premises, or any public
or private nuisance, or other act or thing which may disturb the quiet
enjoyment of any other tenant in the building in which the Premises
are located; nor,without limiting the generality of the foregoing,
shall Lessee allow the Premises to be used for any improper, immoral,
unlawful or objectionable purpose.
NOTE *: which shall be increased by Six Thousand and 00/100 Dollars ($6,000.00)
the earlier of (i) March 15, 1990 or (ii) the return of Security Deposit
currently held by sublessor at Vintage Park.
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Lessee shall not place any harmful liquids in the drainage system of
the Premises or of the building of which the Premises form a part. No
waste materials or refuse shall be dumped upon or permitted to remain
upon any part of the premises outside of the building property except
in trash containers placed inside exterior enclosures designated for
that purpose by Lessor, or inside the building proper where designated
by Lessor. No material, supplies, equipment, finished or semi-
finished products, raw materials or articles of any nature shall be
stored upon or permitted to remain on any portion of the Premises
outside of the building proper. The term "Hazardous Material" means
any hazardous or toxic substance, material or waste the storage, use,
or disposition of which is or becomes regulated by any local
governmental authority, the State of California or the United States
government. The term "Hazardous Material" includes, without
limitation, any material or substance which is (i) defined as a
"hazardous waste", "extremely hazardous waste" or "restricted
hazardous waste" under Section 25115, 25117 pr 25122.7, or listed
pursuant to Section 25140, of the California Health and Safety Code,
Division 20, Chapter 6.5 (Hazardous Waste Control law), (ii) defined
as a "hazardous substance" under Section 25136 of the California
Health and Safety Code, Division 20, Chapter 6.8 (Xxxxxxxxx-Xxxxxxx-
Xxxxxx Hazardous Substance Account Act), (iii) defined as a "hazardous
material", "hazardous substance", or "hazardous waste" under Section
25501 of the California Health and Safety Code, Division 20, Chapter
6.95 (Hazardous Materials Release Response Plans and Inventory), (iv)
defined as a "hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7
(Underground Storage of Hazardous Substances), (v) petroleum, (vi)
asbestos, (vii) listed under Article 9 or defined as hazardous or
extremely hazardous pursuant to Article 11 of Title 22 of the
California Administrative Code, Division 4, Chapter 20, (vii)
designated, as a "hazardous substance" pursuant to Section 311 of the
Federal Water Pollution Control Act (33 U.S.C. Section 1317), (ix)
defined as a "hazardous waste" pursuant to Section 1004 of the Federal
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 ET SEQ.
(42 U.S.C. Section 6903), or (x) defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. Section 9601 ET SEQ., (42
U.S.C. Section 9601), or (xi) listed or defined as "hazardous waste",
"hazardous substance", or other similar designation by any regulatory
scheme of the State of California or the United States Government.
Lessee, at its sole cost shall comply with all laws and regulations
relating to its storage, use and disposal of Hazardous Materials on
the Premises. If Lessee does store, use or dispose of any Hazardous
Materials on the Premises, Lessee shall notify Lessor, in writing at
least five (5) days prior to their first appearance on the Premises.
Lessee shall be solely responsible for and shall defend, indemnify and
hold Lessor, and Lessor's partners, officers, employees, successors,
assigns and agents harmless from and against all claims, demands,
damages, costs and liabilities, including attorneys' fees and costs,
arising out of or in connection with the storage, use, or disposal of
Hazardous Materials by Lessee, its agents, employees, or contractors.
If the presence of Hazardous Materials WHICH WERE INTRODUCED, STORED,
DISPOSED OF OR TRANSPORTED IN OR on the Premises caused or permitted
by Lessee, its agents, employees, contractors, or sublessees results
in contamination or deterioration of water or soil resulting in a
level of contamination greater than the safe levels established by any
governmental agency having jurisdiction over such contamination or if
any investigation of conditions, or any clean up, remedial removal or
restoration work is required by any federal, state or local
governmental agency or political subdivision ("Governmental Agency")
because of the level of Hazardous Material in the soil or ground water
WHICH WERE INTRODUCED, STORED, DISPOSED OF OR TRANSPORTED IN OR on the
Premises by Lessee, its agents, employees, contractors, or sublessees,
Lessee shall promptly, and at its sole cost, take any and all action
necessary to investigate and clean up such contamination. At any time
prior to the expiration of the Lease Term, Lessee shall have the right
to conduct appropriate tests of waste and soil
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and to deliver to Lessor the results of such tests to demonstrate that
no contamination has occurred as a result of Lessee's use of the
Premises. Lessee shall further be solely responsible for, and shall
defend, indemnity and hold Lessor and Lessor's partners, officers,
employees, successors, assigns and agents harmless from and against,
all claims, demands, damages, costs and liabilities, including
attorneys' fees and costs, arising out of or in connection with any
removal, clean-up and restoration work and materials required
hereunder to return the Premises, the Property of which the Premises
are a part or the surrounding properties to its condition existing
prior to the appearance of the Hazardous Materials WHICH WERE
INTRODUCED, STORED, DISPOSED OF OR TRANSPORTED IN OR ON THE PREMISES
by Lessee, its agents, employees, contractors, or sublessees.
If Lessor has good cause to believe that the Premises or the Property
which the Premises are a part, have or may become contaminated by
Hazardous Materials, Lessor may cause test to be performed, including
xxxxx to be installed on the Premises, and may cause the soil or
ground water to be tested to detect the presence of Hazardous
Materials by the use of such tests as are then customarily used for
such purposes. If Lessee so requests, Lessor shall supply Lessee with
copies of such test results. The cost of such tests of the
installation, maintenance, repair and replacement of such xxxxx shall
be paid by Lessee PROVIDED THAT THE RESULTS OF SUCH TESTS CONFIRM THE
PRESENCE OF ANY HAZARDOUS MATERIALS AND LESSEE, ITS AGENTS, EMPLOYEES,
CONTRACTORS OR SUBLESSEES WHICH WERE INTRODUCED, STORED, DISPOSED OF
OR TRANSPORTED IN OR ON THE PREMISES. Lessee shall have the right at
any time during the Lease term to conduct its own test of the soil
and/or ground water underlying the Property by using such xxxxx so
long as each of the following conditions arc satisfied: (i) such tests
are conducted by Lessee at its own expense, (ii) it repairs any
damages to such xxxxx cause by such test; (iii) it holds Lessor, and
Lessor's partners, officers, employees, assigns, successors and agents
harmless from any cost, liability or claims including reasonable
attorney's fees, from its tests including mechanic's lies as well as
contamination to the Property or surrounding properties including the
soil and groundwater thereunder, and (iv) it timely delivers copies of
the results of such test to Lessor.
The termination of the Lease shall not terminate the parties' rights
and obligations under this Paragraph and the parties hereto expressly
agree that the provisions contained herein shall survive the
termination of Lessee's leasehold estate.
Lessee shall abide by all laws, ordinances and statutes, as they now
exist or may hereafter be enacted by legislative bodies having
jurisdiction thereof, relating to its use and occupancy of the
Premises.
SEE PARAGRAPH 36 OF ADDENDUM ATTACHED HERETO AND MADE PART HEREOF.
7. IMPROVEMENTS. Lessor will, at its sole expense, make improvements to
the Premises as specified in Exhibit "B" attached hereto and by this
reference made a part hereof. Lessor will make reasonable efforts to
complete such improvements prior to July 1,1989.
8. TAXES AND ASSESSMENTS.
A. Lessee shall pay before delinquency any and all taxes,
assessments, license fees and public charges levied, assessed or
imposed upon or against Lessee's fixtures, equipment, furnishes,
furniture, appliances and personal property installed or located
on or within the Premises. Lessee shall cause said fixtures,
equipment, furnishings, furniture, appliances and personal
property to be assessed and billed separately from the real
property of Lessor. If any of Lessee's said personal property
shall be assessed with Lessor's real property, Lessee shall pay
to Lessor the taxes attributable to Lessee within ten (10) days
after receipt of a written statement from Lessor setting forth
the taxes applicable to Lessee's property.
5
B. All property taxes or assessments levied or assessed or hereafter
levied or assessed, by any governmental authority, against the
Premises or any portion of such taxes or assessments which
becomes due or accrued during the term of this Lease shall be
paid by Lessor. Lessee shall reimburse Lessor for Lessee's
proportionate share of such taxes or assessments within ten (10)
days of receipt of Lessor's invoice demanding such payment.
Lessee's liability hereunder shall be prorated to reflect the
commencement and termination dates of this Lease.
X. XXXXXX AGREES NOT TO INITIATE THE FORMATION OF ANY ASSESSMENT
DISTRICT WHEREBY THE RESULTANT EFFECT SHALL BE AN INCREASE IN THE
PROPERTY TAXES DUE TO THE REPAYMENT OF THE ASSESSMENT BONDS. IF
SUCH AN ASSESSMENT DISTRICT IS FORMED, LESSOR AGREES TO USE ITS
BEST EFFORTS, WITHOUT WARRANTY OF SUCCESS, THAT SUCH DISTRICT IS
FINANCED BY AN ASSESSMENT DISTRICT BOND PROVIDING FOR PERIODIC
PAYMENTS AND NOT FINANCED WITH A REQUIREMENT FOR A SINGLE
"LUMP-SUM" PAYMENT.
9. INSURANCE.
A. INDEMNITY. Lessee agrees to indemnify and defend Lessor against
and hold Lessor and Lessor's partners, employees, officers,
assigns and successors harmless from any and all demands, claims,
causes of action, judgments, obligation or liabilities, and all
reasonable expenses incurred in investigating or resisting the
same (including reasonable attorneys' fees), on account of, or
arising out of, the condition, use or occupancy of the Premises.
This Lease is made on the express condition that Lessor shall not
be liable for, or suffer loss by reason of, injury to person or
property, from whatever cause, in any way connected with the
condition, use or occupancy of the Premises specifically
including, without limitation, any liability for injury to the
person or property of Lessee, its agents, officers, employees,
licensees and invitees, EXCEPT THAT SUCH INDEMNITY BY LESSEE OF
LESSOR SHALL NOT INCLUDE AN INDEMNITY FOR RESULTS OF LESSOR'S
NEGLIGENCE OR WILLFUL MISCONDUCT. FURTHERMORE, LESSOR HEREBY
INDEMNIFIES LESSEE AGAINST ANY COST OR CLAIM RESULTING FRONT
LESSOR'S NEGLIGENCE OR WILLFUL MISCONDUCT.
B. LIABILITY INSURANCE. Lessee shall, at the Lessee's expense,
obtain and keep in force during the term of this Lease a policy
of comprehensive public liability insurance insuring Lessor and
Lessee, with cross-liability endorsements, against any liability
arising out of the condition, use or occupancy of the Premises
and all areas appurtenant thereto, including parking areas. Such
insurance shall be in an amount satisfactory to Lessor of not
less than $1,000,000 for bodily injury or death as a result of
any one occurrence, and $500,000 for damage to property as a
result of any one occurrence. The insurance shall be with
companies of Best's Rating Guide of A+9 or better and approved by
Lessor, which approval Lessor agrees not to unreasonably
withhold. Lessee shall deliver to Lessor prior to possession, a
certificate of insurance evidencing the existence of the policy
required hereunder and such certificate shall certify that the
policy (1) names Lessor as an additional insured (2) shall not be
canceled or altered without thirty (30) days prior written notice
to Lessor, (3) insures performance of the indemnity set forth in
Subparagraph (A) above, and (4) the coverage is primary and any
coverage by Lessor is in excess thereto.
C. PROPERTY INSURANCE. Lessor shall obtain and keep in force during
the term of this Lease a policy or policies of insurance coverage
including fire, extended coverage, earthquake and flood, for loss
or damage to the Premises, in the amount of the full replacement
value thereof. Lessee shall pay to Lessor its pro-rata share of
the cost of said insurance within ten (10) days of Lessee's
receipt of Lessor's invoice demanding such payment.
6
D. MUTUAL WAIVER OF SUBROGATION. Lessee AND LESSOR hereby release
EACH OTHER and its partners, officers, agents, employees and
servants, from any and all claims, demands, loss, expense, or
injury to the Premises or to the furnishings, fixtures,
equipment, caused by or results from perils, events or happenings
OF THE TYPE which are the subject of insurance in force at the
time of such loss OR REQUIRED TO BE CARRIED BY THIS LEASE.
10. OPERATION, MANAGEMENT, SERVICES AND UTILITIES. Lessee shall pay its
share, based upon the percentage of occupancy for all expenses of
operation and management of the Premises and the Property of which the
Premises are a part, including, but not limited to, water, gas, light,
heat, power, electricity, telephone, trash pick-up, property
management, landscaping, sewer charges, and all other services,
supplied to or consumed on the Premises or the Property of which the
Premises are a part. In the event that any such services are billed
directly to Lessor, then Lessee shall reimburse Lessor for such
expenses within ten (10) days of Lessee's receipt of Lessor's invoice
demanding payment. Lessee acknowledges and agrees to reimburse Lessor
an additional five percent (5%) of said expenses in order to
compensate Lessor for accounting and processing services. LESSEE'S
SHARE IS HEREBY AGREED TO 27.13% (+ OR - 22,464 SF/+ OR - 82,816 SF).
SEE PARAGRAPH 37 OF ADDENDUM ATTACHED HERETO AND MADE PART HEREOF.
11. REPAIRS AND MAINTENANCE.
A. Subject to provisions of Paragraph 15, Lessor shall keep and
maintain the roof, paving, structural elements, landscaping,
irrigation, and exterior walls of the building in which the
Premises are located in good order and repair. Lessee shall
reimburse Lessor for its proportionate share of said expenses
within ten (10) days of Lessee's receipt of Lessor's invoice
demanding payment. If, however, any repairs or maintenance are
required because of an act or omission of Lessee, or its agents,
employees or invitees, Lessee shall pay to Lessor upon demand
100% of the costs of such repair or maintenance.
B. Except as expressly provided in Subparagraph (A) above, Lessee
shall, at its sole cost, keep and maintain the entire Premises
and every part thereof, including, without limitation, the
windows, window frames, plate glass, glazing, truck doors, doors,
all door hardware, interior of the Premises, interior walls and
partitions, and the electrical, plumbing, lighting, heating and
air conditioning systems in good and sanitary order, condition
and repair. Lessee shall, at its own expense, for the duration
of this Lease, retain a service company, approved by Lessor, to
provide routine maintenance and repairs of the heating,
ventilation, and air conditioning system.
Should Lessee fail to maintain the Premises or make repairs
required of Lessee hereunder forthwith upon notice from Lessor,
Lessor, in addition to all other remedies available hereunder or
by law, and without waiving any alternative remedies, may make
the same, and in that event, Lessee shall reimburse Lessor as
additional rent for the cost of such maintenance or repairs on
the next date upon which rent becomes due.
Lessee hereby expressly waives the provision of Sub-section 1 of
Section 1932, and Sections 1941 and 1942 of the Civil Code of
California and all rights to make repairs at the expense of
Lessor, as provided in Section 1942 of said Civil Code.
SEE PARAGRAPH 38 OF ADDENDUM ATTACHED HERETO AND MADE PART
HEREOF.
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12. ALTERATIONS AND ADDITIONS. Lessee shall not make, or suffer to be
made, any alterations, improvements, or additions in, on, or about, or
to the Premises or any part thereof, without the prior written consent
of Lessor and without a valid building permit issued by the
appropriate governmental authority. Lessor retains, at his sole
option, the right to perform all repairs, alterations, improvements or
additions in, on, about, or to said Premises or any part thereof.
LESSEE SHALL HAVE THE RIGHT TO MAKE SUCH ALTERATION WITH ONLY TEN (10)
DAYS ADVANCE NOTICE TO LESSOR AND BY A VALID BUILDING PERMIT (IF
NECESSARY), PROVIDED THE AGGREGATE COST OF SUCH ALTERATION(S), IN ANY
YEAR, SHALL NOT EXCEED TEN THOUSAND DOLLARS ($10,000). As a condition
to giving such consent, Lessor may require that Lessee agree to remove
any such alterations, improvements or additions at the termination of
this Lease, and to restore the Premises to their prior condition. Any
alteration, addition or improvement to the Premises, except movable
furniture and trade fixtures not affixed to the Premises, shall become
the property of Lessor upon installation, and shall remain upon and be
surrendered with the Premises at the termination of this Lease.
Lessor can elect, however, within thirty (30) days before expiration
of the term or within five (5) days after termination of the term, to
require Lessee to remove any alterations, additions or improvements
that Lessee has made to the Premises. If Lessor so elects, Lessee
shall restore the Premises to the condition designated by Lessor in
its election, before the last day of the term, or within thirty (30)
days after notice of election is given, whichever is later.
Alterations and additions which are not to be deemed as trade fixtures
include heating, lighting, electrical systems, air conditioning,
partitioning, electrical signs, carpeting, or any other installation
which has become an integral part of the Premises. In the event
Lessor consents to Lessee's making any alterations, improvements, or
additions, Lessee shall be responsible for the timely posting of
notices of non-responsibility on Lessor's behalf, which shall remain
posted until completion of the alterations, additions or improvements.
Lessee's failure to post notices of non-responsibility as required
hereunder shall be a breach of this Lease.
If, during the term hereof, any alteration, addition or change of any
sort through all or any portion of the Premises or of the building of
which the Premises form a part, is required by law, regulation,
ordinance or order of any public agency, Lessee, at its sole cost and
expense, shall promptly make the same.
13. ACCEPTANCE OF THE PREMISES AND COVENANT TO SURRENDER. EXCEPT AS
PROVIDED WITHIN, by entry and taking possession of the Premises
pursuant to this Lease, Lessee accepts the Premises as being in good
and sanitary order, condition and repair, and accepts the Premises in
their condition existing as of date of such entry, and Lessee further
accepts any tenant improvements to be constructed by Lessor, if any,
as being completed in accordance with the plans and specifications for
such improvements.
Lessee agrees on the last day of the term hereof, or on sooner
termination of this Lease, to surrender the Premises, together with
all alterations, additions and improvements which may have been made
in, to, or on the Premises by Lessor or Lessee, unto Lessor in good
and sanitary order, condition and repair, excepting for such wear and
tear as would be normal for the period of the Lessee's occupancy AND
HAZARDOUS MATERIALS (OTHER THAN THOSE STORED, USED, GENERATED OR
DISPOSED OF BY LESSEE IN/OR ABOUT THE PREMISES). Lessee, on or before
the end of the term or sooner termination of this Lease, shall remove
all its personal property and trade fixtures from the Premises, and
all property not so removed shall be deemed to be abandoned by Lessee.
Lessee further agrees that at the end of the term or sooner
termination of this Lease, Lessee at its sole expense, shall have the
carpets steam cleaned, the vinyl floors waxed, the concrete floors
mopped, the walls and columns painted, any damaged ceiling title
replaced, light lenses and ballasts in good order and repair, the
windows cleaned, the drapes/blinds cleaned, and any damaged doors
replaced.
8
If the Premises are not surrendered at the end of the term or sooner
termination of this Lease, Lessee shall indemnify Lessor against loss
or liability resulting from delay by Lessee in so surrendering the
Premises, including, without limitation, any claims made by any
succeeding tenant founded on such delay EXCEPT THAT IF SUCH DELAY IS
CAUSED BY LESSOR, ITS AGENTS OR EMPLOYEES, THEN LESSEE SHALL NOT BE
LIABLE TO LESSOR FOR ANY SUCH COST OF DELAY.
SEE PARAGRAPH 39 OF ADDENDUM ATTACHED HERETO AND MADE PART HEREOF.
14. DEFAULT. In the event of any breach of this Lease by the Lessee, or an
abandonment of the Premises by the Lessee, the Lessor has the option
of (1) removing all persons and property from the Premises and
repossessing the Premises, in which case any of the Lessee's property
which the Lessor removes from the Premises may be stored in a public
warehouse or elsewhere at the cost of, and for the account of Lessee,
or (2) allowing the Lessee to remain in full possession and control of
the Premises. If the Lessor chooses to repossess the Premises, the
Lease will automatically terminate in accordance with the provisions
of California Civil Code, Section 1951.2. In the event of such
termination of the Lease, the Lessor may recover from the Lessee: (1)
the worth at the time of award of the unpaid rent which had been
earned at the time of termination, including interest at the maximum
rate an individual is permitted by law to charge; (2) the worth at the
time of award of the amount by which the unpaid rent which would have
been earned after termination until the time of award exceeds the
amount of such rental loss that the Lessee proves could have been
reasonably avoided, including interest at the maximum rate an
individual is permitted by law to charge; (3) the worth at the time of
award of the amount by which the unpaid rent for the balance of the
term after the time of award exceeds the amount of such rental loss
that the Lessee proves could be reasonably avoided; and (4)any other
amount necessary to compensate the Lessor for all the detriment
proximately caused by the Lessee's failure to perform his obligations
under the Lease or which, in the ordinary course of things, would be
likely to result therefrom. "The worth at the time of the award", as
used in (1) and (2)of this paragraph, is to be computed by allowing
interest at the maximum rate an individual is permitted by law to
charge. "The worth at the time of the award", as referred to in (3)
of this paragraph, is to be computed by discounting the amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time
of the award, plus one percent (1%).
If the Lessor chooses not to repossess the Premises, but allows the
Lessee to remain in full possession and control of the Premises, but
allows in accordance with provisions of California Civil Code, Section
1951.4, the Lessor may treat the Lease as being in full force and
effect, and may collect from the Lessee all rents as they become due
through the termination date of the Lease, as specified in the Lease.
For the purpose of this paragraph, the following do not constitute a
termination of Lessee's right to possession:
A. Acts of maintenance or preservation, or effect to relet the
property.
B. The appointment of a receiver on the initiative of the Lessor to
protect this interest under this Lease.
Lessee shall be liable immediately to Lessor for all costs Lessor
incurs in reletting the Premises, including, without limitation,
brokers' commission, expenses of remodeling the Premises required by
the reletting, and like costs. Reletting can be for a period shorter
or longer than the remaining term of this Lease. Lessee shall pay to
Lessor the rent due under this Lease on the dates the rent is due,
less the rent Lessor receives from this Lease unless Lessor notifies
Lessee that Lessor elects to terminate this Lease. After Lessee's
default and for as long as Lessor does not terminate Lessee's right to
possession of the Premises, if Lessee obtains Lessor's consent, Lessee
shall have the right to assign or sublet its interest in this Lease,
but Lessee shall not be released from liability. Lessor's consent to
a proposed assignment or subletting shall not be unreasonably
withheld.
9
If Lessor elects to relet the Premises as provided in this Paragraph,
rent that Lessor receives from reletting shall be applied to the
payment of:
First, any indebtedness from Lessee to Lessor other than rent due
from Lessee;
Second, all cost, including for maintenance, incurred by Lessor
in reletting;
Third, rent due and unpaid under this Lease. After deducting the
payments referred to in this Paragraph, any sum remaining from
the rent Lessor receives from reletting shall be held by Lessor
and applied in payment of future rent as rent becomes due under
this Lease. In no event shall Lessee be entitled to any excess
rent received by Lessor. If, on the date rent is due under this
Lease, the rent received from reletting is less than the rent due
on that date, Lessee shall pay to Lessor, in addition to the
remaining rent due, all costs including for maintenance, Lessor
incurred in reletting that remain after applying the rent
received form the Reletting, as provided in this Paragraph.
Lessor at any time after Lessee commits a default, can cure the
default at Lessees cost. If Lessor at any time, by reason of Lessee's
default, pays any sum or does any act that requires the payment of any
sum, the sum paid by Lessor shall be due immediately from Lessee to
Lessor at the time the sum is paid, and if paid at a later date shall
bear interest at the time the sum is paid, and if paid at a later date
shall bear interest at the maximum rate an individual is permitted by
law to charge from the date the sum is paid by Lessor until Lessor is
reimbursed by Lessee. The sum, together with interest on it, shall be
additional rent.
Rent not paid when due shall bear interest at the maximum rate an
individual is permitted by law to charge from the date due until paid.
15. DESTRUCTION. In the event the Premises are destroyed in whole or in
part from any cause, Lessor may, at its option:
A. Rebuild or restore the Premises to their condition prior to the
damage or destruction; or
B. Terminate the Lease.
LESSOR SHALL give to Lessee notice in writing within thirty (30) days
from the destruction of the Premises of its election to either rebuild
and restore the Premises, or to terminate this Lease; IF Lessor shall
have elected to rebuild or restore them, in which event Lessor agrees,
at its expense, promptly to rebuild or restore the Premises to its
condition prior to the damage or destruction. LESSOR AGREES TO PROVIDE
LESSEE WITH ITS PROJECTED SCHEDULE OF SUCH REPAIRS WITH ITS TIMELY
WRITTEN NOTICE TO LESSEE OF ITS ELECTION TO REBUILD. IF LESSOR ELECTS
TO TERMINATE THIS LEASE, THE TERMINATION SHALL BE EFFECTIVE AS OF SUCH
DATE OF DESTRUCTION AND ANY MONIES PAID BY LESSEE SUBSEQUENT TO THE
DATE OF DESTRUCTION SHALL BE RETURNED TO LESSEE. IF LESSOR'S PROJECTED
SCHEDULE ESTABLISHES THAT THE TIME TO REBUILD IS TO BE IN EXCESS OF
ONE-HUNDRED EIGHTY (180) DAYS, OR Lessor does not complete the
rebuilding or restoration within one hundred eighty (180) days
following the date of destruction, (such period of time to be extended
for delays caused by the fault or neglect of Lessee or because of acts
of God, acts of public agencies, labor disputes, strikes, fires,
freight embargoes, rainy or stormy weather, inability to obtain
materials, supplies or fuels, acts of contractors or subcontractors,
or delay of the contractors or subcontractors due to such causes or
other contingencies beyond the control of Lessor), then Lessee shall
have the right to terminate this Lease by giving fifteen (15) days
prior written notice to Lessor. Lessor's obligation to rebuild or
restore shall not include restoration of Lessee's trade fixtures,
equipment, merchandise, or any improvements, alterations or additions
made by Lessee to the Premises.
Unless this Lease is terminated pursuant to the foregoing provisions,
this Lease shall remain in full force and effect. Lessee hereby
expressly waives the provisions of Section 1932, Subdivision 2, and
Section 1933, Subdivision 4, of the California Civil Code.
10
In the event that the building in which the Premises are situated is
damaged or destroyed to the extent of not less than 33-1/3 percent of
the replacement cost thereof, Lessor may elect to terminate this
Lease, whether the Premises be injured or not.
LESSOR AND LESSEE SHALL EACH HAVE THE RIGHTS TO TERMINATE THE LEASE IF
(I) ANY DAMAGE TO THE PREMISES OCCURS DURING THE LAST YEAR OF THE TERM
OF THE LEASE AND (II) IT IS ESTIMATED BY LESSOR THAT NECESSARY REPAIRS
WILL NOT BE COMPLETED WITHIN SIXTY (60) DAYS FROM THE DATE OF SUCH
DAMAGE, UNLESS LESSEE HAS AN OPTION TO EXTEND THE TERM OF THE LEASE
AND LESSEE EXERCISES SUCH OPTION WITHIN THIRTY (30) DAYS OF THE DATE
OF SUCH DAMAGE.
16. CONDEMNATION. If any part of the Premises shall be taken for any
public or quasi-public use, under any statute or by right of eminent
domain, or private purchase in lieu thereof, and a part thereof
remains, which is susceptible of occupation hereunder, this Lease
shall, as to the part so taken, terminate as of the date title shall
vest in the condemnor or purchaser, and the rent payable hereunder
shall be adjusted so that the Lessee shall be required to pay for the
remainder of the term only such portion of such rent as the value of
the part remaining after such taking bears to the value of the entire
Premises prior to such taking. Lessor AND LESSEE shall have the
option to terminate this Lease in the event that such taking causes a
reduction in rent payable hereunder by fifty percent (50%) or more.
If all of the Premises or such part thereof be taken so that there
does not remain a portion susceptible for occupation hereunder, as
reasonably necessary for Lessee's conduct of its business as
contemplated in this Lease, this Lease shall thereupon terminate. if a
part or all of the Premises be taken, all compensation awarded upon
such taking shall go to the Lessor, and the Lessee shall have no claim
thereto, and the Lessee hereby irrevocably assigns and transfers to
the Lessor any right to compensation or damages to which the Lessee
may become entitled during the term hereof by reason of the purchase
or condemnation of all or a part of the Premises. Each party waives
the provisions of Code of Civil Procedure, Section 1265.130, allowing
either party to petition the superior court to terminate this Lease in
the event of a partial taking of the Premises.
17. FREE FROM LIENS. Lessee shall (1) pay for all labor and services
performed for materials used by or furnished to Lessee, or any
contractor employed by Lessee with respect to the Premises, and (2)
indemnify, defend and hold Lessor and the Premises harmless and free
from any liens, claims, demands, encumbrances, or judgments created or
suffered by reason of any labor or services performed for materials
used by or furnished to Lessee or any contractor employed by Lessee
with respect to the Premises, and (3) give notice to Lessor in writing
five (5) days prior to employing any laborer or contractor to perform
services related, or receiving materials for use upon the Premises,
and (4) shall post, on behalf of Lessor, a notice of non-responsibility
in accordance with the statutory requirements of California Civil Code,
Section 3094, or any amendment thereof. In the event an improvement
bond with a public agency in connection with the above is required to
be posted, Lessee agrees to include Lessor as an additional obligee.
IN NO EVENT SHALL LESSEE BE RESPONSIBLE FOR INDEMNIFYING LESSOR, OR
HOLDING LESSOR FREE FROM LIENS FOR WORK CONTRACTED BY LESSOR FOR THE
INITIAL BUILD-OUT AS CONTEMPLATED IN EXHIBIT "B" HEREOF.
18. COMPLIANCE WITH LAWS. Lessee shall, at its own cost, comply with and
observe all requirements of all municipal, county, state and federal
authority now in force, or which may hereafter be in force, pertaining
to the use and occupancy of the Premises. SHOULD ANY MODIFICATIONS TO
THE PREMISES BE REQUIRED BECAUSE OF LESSEE'S USE OF THE SAME, LESSEE
SHALL BE RESPONSIBLE FOR THE COST OF SUCH MODIFICATIONS. IN NO EVENT
SHALL LESSEE BE REQUIRED TO PAY ANY PORTION OF THE COST OF COMPLIANCE
WITH LAWS OR CODES STRICTLY RELATING TO BUILDINGS.
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19. SUBORDINATION. Lessee agrees that this Lease shall, at the option of
Lessor, be subjected and subordinated to any mortgage, deed of trust,
or other instrument of security, which has been or shall be placed on
the land and building, or land or building of which the Premises form
a part, and this subordination is hereby made effective without any
further act of Lessee or Lessor PROVIDED THE HOLDER OF ANY SUCH
MORTGAGE, DEED OF TRUST, OR OTHER INSTRUMENT OF SECURITY, PROVIDES
LESSEE WITH A NONDISTURBANCE OF ATTORNMENT AGREEMENT IN A FORM
REASONABLY SATISFACTORY TO LESSEE. The Lessee shall, at any time
hereinafter, on demand, execute any instruments, releases or other
documents that may be required by a mortgagee, mortgagor, or trustor,
or beneficiary under any deed of trust, for the purpose of subjecting
or subordinating this Lease to the lien of any such mortgage, deed of
trust, or other instrument of security PROVIDED THE HOLDER OF ANY SUCH
MORTGAGE, DEED OF TRUST, OR OTHER INSTRUMENT OF SECURITY, PROVIDES
LESSEE WITH A NON-DISTURBANCE AND ATTORNMENT AGREEMENT IN A FORM
REASONABLY SATISFACTORY TO LESSEE. IF LESSEE REQUESTS A NON-
DISTURBANCE AND ATTORNMENT AGREEMENT ("AGREEMENT") FOR ANY MORTGAGE
HOLDER OF THE SUBJECT PROPERTY, LESSOR AGREES TO USE ITS BEST EFFORTS
TO HAVE SAID MORTGAGE HOLDER PROVIDE LESSEE WITH SUCH AGREEMENT IN
INDUSTRY STANDARD FORM STATING, AMONG OTHER THINGS, THAT SHOULD LESSEE
NOT BE IN DEFAULT UNDER THIS LEASE, LESSEE WILL BE ENTITLED TO ITS
QUIET ENJOYMENT OF LEASED PREMISES. SEE PARAGRAPH 40 OF ADDENDUM
ATTACHED HERETO AND MADE PART HEREOF.
20. ABANDONMENT. Lessee shall not vacate nor abandon the Premises at any
time during the term; and if Lessee shall abandon, vacate or surrender
said Premises, or be dispossessed by process of law, or otherwise, any
personal property belonging to Lessee and left on the Premises shall
be deemed to be abandoned, at the option of Lessor, except such
property as maybe mortgaged to Lessor; provided, however, that Lessee
shall not be deemed to have abandoned or vacated the Premises so long
as Lessee continues to pay all rents as and when due, and otherwise
performs pursuant to the terms and conditions of this Lease.
21. ASSIGNMENT AND SUBLETTING.
A. LESSOR'S CONSENT REQUIRED. Lessee shall not, either voluntarily
or by operation of law, assign, sell, encumber, pledge or
otherwise transfer all or any part of Lessee's leasehold estate
hereunder or permit the Premises to be occupied by anyone other
than Lessee or Lessee's employees', or sublet the Premises or any
portion thereof, without Lessor's prior written consent in each
instance, which consent may not unreasonably be withheld by
Lessor. In exercising its reasonable discretion, Lessor may
consider all commercially relevant factors involved in the
leasing, subleasing or assignment of the space, including, but
not limited to, the following: (i) the credit worthiness and
financial stability of the prospective assignee or sublessee;
(ii) the projected gross sales of such assignee or sublesee;
(iii) the compatibility of the prospective assignee or sublessee
with Lessor, its property manager, and other tenants in the
Complex; (iv) the references from prior landlords of such
prospective sublessee or assignee; (v) the past history of such
sublessee or assignee with respect to involvement in litigation
and bankruptcy proceedings; (vi) whether the proposed use of the
Premises by the prospective sublessee or assignee falls within
the use permitted under Paragraph 6; (vii) whether the proposed
use is suitable and in keeping with the ambience and tone of the
Complex; and (viii) the impact of said sublessee or assignee and
the proposed use of the Premises on pedestrian and vehicular
traffic and parking facilities. The presence of one negative
factor enumerated above shall be deemed reasonable justification
for Lessor's withholding consent. Lessee shall provide Lessor
with prior notice of any proposed assignment or sublease as
provided in Xxxxxxxxx 00X. Consent by Lessor to one or more
assignments of this lease or to one or more subletting of the
Premises shall not operate to exhaust Lessor's rights under this
Paragraph. The voluntary or other surrender of this Lease by
Lessee or a mutual cancellation hereof shall not work a merger,
and shall, at the option of Lessor, terminate all or any existing
subleases or subtenancies or shall
12
operate as an assignment to Lessor of such subleases or
subtenancies. If Lessee is a corporation, or is an
unincorporated association or partnership, the transfer,
assignment or hypothecation of any stock or interest in such
corporation, association or partnership in the aggregate in
excess of FORTY-NINE percent (49%) shall be deemed an assignment
within the meaning and provisions of this Article, EXCEPT THAT
LESSEE MAY TRANSFER ITS STOCK TO AN AFFILIATED CORPORATION
WITHOUT THE CONSENT OF LESSOR. LESSEE SHALL PROVIDE LESSOR WITH
WRITTEN NOTICE IN SUCH EVENT OF TRANSFER TO SAID AFFILIATED
CORPORATION. LESSEE MAY, WITHOUT LESSOR'S PRIOR WRITTEN CONSENT,
BUT WITH WRITTEN NOTICE, SUBLET THE PREMISES AND/OR ASSIGN THE
LEASE TO (I) ANY AFFILIATE OF LESSEE; (II) A SUCCESSOR
CORPORATION RELATED TO LESSEE BY MERGER, CONSOLIDATION,
REORGANIZATION OR GOVERNMENT ACTION: AND/OR (III) A PURCHASER OF
SUBSTANTIALLY ALL OF THE ASSETS OF LESSEE; ANY SUCH TRANSFER
BEING REFERRED TO HEREIN AS AN "AFFILIATE TRANSFER" SO LONG AS
SUCH AFFILIATE, SUCCESSOR OR PURCHASER AGREES IN WRITING TO
GUARANTEE THE PERFORMANCE OF LESSEE UNDER THIS LEASE. In
addition to the rent and all monetary sums normally payable to
Lessor by Lessee hereunder, Lessee agrees to further pay to
Lessor, immediately upon receipt by Lessee, and as additional
rent, one hundred percent (100%) of any monetary consideration
which Lessee would be entitled to receive under any sublease or
assignment permitted herein. LESSEE SHALL BE ENTITLED TO RECOVER
ITS DIRECT THIRD-PARTY DOCUMENTED EXPENSES OF LEASE COMMISSIONS,
ADVERTISING, TENANT IMPROVEMENTS AND LEGAL FEES (LEGAL FEES NOT
TO EXCEED $5,000) PRIOR TO REMITTING TO LESSOR ALL RENT IN EXCESS
OF THE RENT AND OTHER SUMS DUE UNDER THIS LEASE.
B. NOTICE TO LESSOR. If Lessee desires at any time to assign this
Lease or to sublet the Premises or any portion thereof, it shall
first notify Lessor of its desire to do so and shall submit in
writing to Lessor (i) the name of the proposed sublessee or
assignee; (ii) the nature of the proposed sublessee's or
assignee's business to be carried on in the Premises; (iii) the
terms and provisions of the proposed sublease or assignment; and
(iv) such reasonable financial information concerning the
proposed sublessee or assignee as Lessor may need to make a
prudent and considered decision.
C. LESSEE NOT RELEASED. No subletting or assignment, even with the
written consent of Lessor, shall relieve Lessee of its obligation
to pay the rent and perform all of the other obligation to be
performed by Lessee hereunder. Lessee shall indemnify and hold
Lessor harmless from any and all claims, damages, liability and
expenses, including reasonably attorneys' fees and costs arising
out of any claims by brokers or others for commission or finder's
fees with respect to any subletting or assignment by Lessee. The
acceptance of rent by Lessor from any other person shall not be
deemed to be a waiver by Lessor from any provision of this Lease
or to be a consent to any assignment or subletting. Lessee
immediately and irrevocably assigns to Lessor, as security for
Lessee's obligations under this Lease, all rent from any
subletting, and Lessor, as assignee and attorney in fact for
Lessee or receiver for Lessee appointed on Lessor's application
may collect such rent and apply it toward Lessee's obligations
under this Lease, except that, until the occurrence of any act of
default by Lessee, Lessee shall have the right to collect such
rent.
D. INVOLUNTARY ASSIGNMENT. No interest of Lessee in this Lease
shall be assignable by operation of law. Without liability
limiting the foregoing, each of the following acts shall be
considered an involuntary assignment:
i. Transfer of this Lease by testacy or intestacy;
ii. If Lessee is or becomes bankrupt or insolvent, makes an
assignment for the benefit or creditors, or institutes a
proceeding under the Bankruptcy Act in which Lessee is the
bankrupt; or, if Lessee is a partnership or consists of more
than one person or entity; if any general partner of the
partnership or other person or entity is or becomes bankrupt
or insolvent, or makes an assignment for the benefit of
creditors;
13
iii. The appointment of a trustee or receiver to take possession of
substantially all of Lessee's assets located at the Premises or
of Lessee's interest in this Lease, where possession is not
restored to Lessee within thirty (30) days, or
iv. The attachment, execution or other judicial seizure of
substantially all of Lessee's assets located at the Premises or
of Lessee's interest in this Lease, where seizure is not
discharged within thirty (30) days.
An involuntary assignment shall constitute a default by Lessee and
Lessor shall have the right to elect to terminate this Lease, in which
case this Lease shall not be treated as an asset of Lessee.
E. LESSEE TO REIMBURSE FOR EXPENSES. Lessee agrees to reimburse Lessor
upon demand for Lessor's reasonable costs and attorney's fees (without
limitation) incurred in conjunction with the processing, investigation
and documentation of any requested assignment, subletting, transfer,
involuntary assignment, change of ownership or hypothecation of this
Lease or Lessee's interest in and to the Premises, regardless of
whether any request actually results in a permitted assignment,
sublease, or other transfer.
22. PARKING CHARGES. Lessee agrees to pay upon demand, based on its percent of
occupancy of the entire Premises, its pro-rata share of any parking
charges, surcharges, or any other cost hereafter levied or assessed by
local, state or federal governmental agencies in connection with the use of
the parking facilities serving the Premises, including, without limitation,
parking surcharge imposed by or under the authority of the Federal
Environmental Protection Agency.
23. INSOLVENCY OR BANKRUPTCY. Either (a) the appointment of a receiver to take
possession of all or substantially all of the assets of Lessee, or (b) a
general assignment by Lessee for the benefit of creditors. Upon the
happening of any such event, this Lease shall terminate ten (10) days after
written notice of termination from Lessor to Lessee. This section is to be
applied consistent with applicable state and federal law in effect at the
time such event occurs.
24. LESSOR LOAN OR SALE. Lessee agrees, promptly following request by Lessor,
to (a) execute and deliver to Lessor any documents, including estoppel
certificates presented to Lessee by Lessor, (i) certifying that this Lease
is unmodified and in full force and effect, or, if modified, stating the
nature of such modification and certifying that this Lease, as so modified,
is in full force and effect and the date to which the rent and other
charges are paid in advance, if any, and (ii) acknowledging that there are
not, to Lessee knowledge, any uncured defaults on the part of Lessor
hereunder, and (iii) evidencing the status of the Lease as may be required
either by a lender making a loan to Lessor, to be secured by deed of trust
or mortgage covering the Premises, or a purchase of the Premises from
Lessor, and (b) to deliver to Lessor the current financial statements of
Lessee with an option of a certified public accountant, including a balance
sheet and profit and loss statement, for the current fiscal year and the
two immediately prior fiscal years, all prepared in accordance with general
accepted accounting principles consistently applied. Lessee's failure to
deliver an estoppel certificate within FIVE (5) BUSINESS days following
such request shall constitute a default under this Lease and shall be
conclusive upon Lessee that this Lease is in full force and effect and has
not been modified except as may be represented by Lessor. If Lessee fails
to deliver the estoppel certificate within the FIVE (5) BUSINESS days,
Lessee irrevocably constitutes and appoints Lessor as its special attorney-
in-fact to execute and deliver the certificate to any third party.
25. SURRENDER OF LEASE. The voluntary or other surrender of this Lease by
Lessee, or a mutual cancellation thereof, shall not work a merger nor
relieve Lessee of any of Lessee's obligations under this Lease, and shall,
at the option of Lessor, terminate all or any existing subleases or
subtenancies, or may, at the option of Lessor, operate as an assignment to
him or any or all such subleases or subtenancies.
14
26. ATTORNEYS' FEES. If, for any reason, any suit be initiated to enforce any
provision of this Lease, the prevailing party shall be entitled to legal
costs, expert witness expenses and reasonable attorneys' fees as fixed by
the court.
27. NOTICES. All notices to be given to Lessee may be given in writing,
personally or by depositing the same in the United States mail, postage
prepaid, and addressed to Lessee at the said Premises, whether or not
Lessee has departed from, abandoned or vacated the Premises. Any notice or
document required or permitted by this Lease to be given Lessor shall be
addressed to Lessor at the address set forth below, or at such other
address as it may have theretofore specified by notice delivered in
accordance herewith:
Lessor: WDT-SHOREWAY
000 Xxxxx Xxxx, Xxxxx 00
Post Office Box 10098
Palo Alto, California 94303-0854
Lessee: DOMESTIC AUTOMATION COMPANY
000 XXXXXXXX XXXX. XXXXX 0000
XXX XXXXXX, XXXXXXXXXX
28. TRANSFER OF SECURITY. If any security be given by Lessee to secure the
faithful performance of all or any of the covenants of this Lease on the
part of Lessee, Lessor may transfer and/or deliver the security, as such,
to the purchase of the reversion, in the event that the reversion be sold,
and thereupon Lessor shall be discharged from any further liability in
reference thereto, upon the assumption IN WRITING by such transferee of
Lessor's obligations under this Lease.
29. WAIVER. The waiver by Lessor or Lessee of any breach of any term, covenant
or condition herein contained shall not be deemed to be a waiver of such
term, covenant, or condition herein contained. The subsequent acceptance
of rent hereunder by Lessor shall not be deemed to be a waiver of any
preceding breach by Lessee of any term, covenant, or condition of this
Lease, other than the failure of Lessee to pay the particular rental so
accepted, regardless of Lessor's knowledge of such preceding breach at the
time of acceptance of such rent.
30. HOLDING OVER. Any holding over after the expiration of the term or any
extension thereof, with the consent of Lessor, shall be construed to be a
tenancy from month-to-month, at a rental of one and one-half times the
previous month's rental rate per month, and shall otherwise be on the terms
and conditions herein specified, so far as applicable.
32. LIMITATION ON LESSOR'S LIABILITY. If Lessor is in default of this Lease,
and as a consequence Lessee recovers a money judgement against Lessor, the
judgement shall be satisfied only out of the proceeds of sale received on
execution of the judgement and levy against the right, title, and interest
of Lessor in the Premises, or in the building, other improvements, and land
of which the Premises are part, and out of rent or other income from such
real property receivable by Lessor or out of the consideration received by
Lessor from the sale or other disposition of all or any part of Lessor's
right, title, and interest in the Premises or in the building, other
improvements, and land of which the Premises are part. Neither Lessor nor
any of the partners comprising the partnership or officers of the
corporation designated as Lessor shall be personally liable for any
deficiency.
15
33. MISCELLANEOUS.
A. Time is of the essence of this Lease, and of each and all of its
provisions.
B. The term "Building" shall mean the building in which the Premises arc
situated.
C. If the Building is leased to more than one tenant, then each such
tenant, its agents, officers, employees and invitees, shall have the
non-exclusive right (in conjunction with the use of the part of the
building leased to such tenant) to make reasonable use of any
driveways, sidewalks and parking area located on the parcel of land on
which the Building is situated, except such parking area as may from
time to time be leased for exclusive use by other tenant(s).
D. Lessee's such reasonable use of parking area shall not exceed that
percent of the total parking areas which is equal to the ratio which
floor space of the Premises bears to floor space of the Building.*
E. The term "assign" shall include the term "transfer".
F. The invalidity or unenforceability of any provision of this Lease
shall not affect the validity or enforceability of the remainder of
this Lease.
G. All parties hereto have equally participated in the preparation of
this Lease.
H. The headings and title to the paragraphs of this Lease are not a part
of this Lease and shall have no effect upon the construction or
interpretation of any part thereof.
I. Lessor has made no representation(s) whatsoever to Lessee (express or
implied) except as may be expressly stated in writing in this Lease
instrument.
J. This instrument contains all of the agreement and conditions made
between the parties hereto, and may not be modified orally or in any
other manner than by agreement in writing, signed by all of the
parties hereto or their respective successors in interest.
K. It is understood and agreed that the remedies herein given to Lessor
shall be cumulative, and the exercise of any open remedy by Lessor
shall not be to the exclusion of any other remedy.
L. The covenants and conditions herein contained shall, subject to the
provisions as to assignment, apply to and bind the heirs, successors,
executors, administrators and assigns of all the parties hereto; and
all of the parties hereto shall jointly and severally be liable
hereunder.
M. This Lease has been negotiated by the parties hereto and the language
hereof shall not be construed for or against either party.
N. All exhibits to which reference is made are deemed incorporated into
this Lease, whether or not actually attached.
0. All provisions, whether covenants or conditions, on the part of Lessee
shall be deemed to be both covenants and conditions.
* Lessee shall have the use of 76 parking spaces as shown on Exhibit C.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Lease on the date
first above-written
LESSOR: LESSEE:
WDT-SHOREWAY DOMESTIC AUTOMATION COMPANY
By: /S/ [signature] By: /S/ [signature]
---------------------------- ---------------------------
GENERAL PARTNER
00
XXX XXXXXXXX
XXX Xxxxxxxxxxx Xxxxxxx
Xxx Xxxxxx,Xxxxxxxxxx
[site plan graphic omitted]
EXHIBIT "B"
Lessor shall provide a building shell which shall include all on-and off-site
work, the structure, windows, two sliding glass door systems and the main
transformer set in place with 208/480 V 3-phase power.
In addition to the building shell, Lessor hereby grants to Lessee an interior
improvement allowance for real property improvements to the demised premises to
be made by Lessor at Lessor's expense. Said cost of such real property shall
include all costs to construct the same as well as all associated architectural,
structural, Title XXIV consultant fees, developer's overhead, city and other
governmental fees and inspection service fees. Said allowance shall be equal to
$561,600 ($25.00 psf x 22,464 sf). Lessor agrees to provide up to an additional
$112,320 ($5.00 psf x 22,464 sf) for purposes of real property improvements. In
the event the actual cost of such real property improvements is less than or
more than $561,600, the rent shall be adjusted by 2.25 cents for every $1.00
over or under $561,600; in no event, however, shall the adjustment exceed 11.25
cents ($5.00 psf x 2.25 cents). For example, if the actual cost is $606,528
($27.00 psf) the monthly rent shall be increased by $1,011 (4.5 cents x 22,464
sf). Said real property interior improvements shall not include "Xxxxxx
Xxxxxx" type partitions.
4/7/89
ADDENDUM TO THAT CERTAIN LEASE AGREEMENT
BY AND BETWEEN DOMESTIC AUTOMATION COMPANY ("LESSEE")
AND WDT-SHOREWAY ("LESSOR")
DATED APRIL 6, 1989
34. COMMENCEMENT OF LEASE TERM. The term of this Lease shall commence the
latter of (i) July 1, 1989, or (ii) substantial completion of the interior
improvements as outlined in Exhibit "B". Substantial completion shall mean
Lessor's material completion of the improvements so that Lessee may occupy
the Premises without material interference from Lessor's contractors.
However, should the Lease and final plans be executed after April 29, 1989,
or should Lessee, its employees, officers, contractors, agents or suppliers
interfere with Lessor or its contractors in constructing the improvements
as per Exhibit "B", then this Lease shall commence July 1, 1989.
In the event Lessor is unable to complete the interior improvements as per
Exhibit "B" by September 30, 1989, (acts of God, strikes, war or delays
beyond Lessor's control excepted), Lessee shall have the right, by giving
Lessor ten (10) days advance written notice, to terminate this Lease and
all monies paid pursuant to the Lease by Lessee to Lessor shall be returned
to Lessee.
Within twenty-five (25) days from commencement of the term, Lessee shall
deliver to Lessor a written "punch list" defining those items or areas
requiring repair. Lessor agrees to diligently prosecute such repair as
soon as reasonably possible after receipt of Lessee's written "punch list".
35. RENT IN OPTION TO EXTEND TERM. Base rent shall be calculated as follows
for the extended terms: Lessee shall pay to Lessor a sum of ninety-five
percent (95%) of the Fair Market Rent Value of the Premises at the time the
extended term shall commence using surrounding, comparable space between
Menlo Park (south) to San Mateo/Xxxxxx City (north) to determine said Fair
Market Rental Value. The parties shall have fifteen (15) days to make and
agree on said base rental.
If the parties are unable to agree on the minimum monthly base rent for the
extended term within said fifteen (15) day period, then each party, within
ten (10) days and by giving notice to the other party, shall appoint a
licensed real estate appraiser (MAI) with at least five (5) years' full-
time commercial appraisal experience in the area in which the Premises are
located to appraise and set the minimum monthly rent for the Market Rental
Value formula specific in the above paragraph. If a party does not appoint
an appraiser within ten (10) days after the other party has given notice of
the name of its appraiser, the single appraiser appointed shall be the sole
appraiser and shall set the minimum monthly rent for the extended term. If
the two appraisers are appointed by the parties as stated in this paragraph,
they shall meet promptly and attempt to set the minimum monthly rent for the
extended term. If they are unable to agree within twenty (20) days after the
second appraiser has been appointed, they shall elect a third appraiser
meeting the qualifications stated in this paragraph within ten (10) days
after the last day the two appraisers are given to set the minimum monthly
rent. The cost of said appraisers shall be borne by Lessor and Lessee as
each appointed and divide equally the cost of the third appraiser.
Within five (5) days after the selection of the third appraiser, a majority
of the appraisers shall set the minimum monthly rent for the extended term.
If a majority of the appraisers are unable to set the minimum monthly rent
within the stipulated period of time, the three (3) appraisers shall be
added together and their total divided by three (3); the resulting quotient
shall be the minimum monthly rent for the Premises during the extended
term. Said minimum monthly rental as set by the appraisers shall be
binding upon the parties hereto and in no event shall the rent be less than
the rent paid in the last month prior to such extended term. Lessee shall
have no other right to extend the term beyond the two (2) extended terms
herein granted.
1
36. HAZARDOUS MATERIALS/USE OF PREMISES:
A. Lessee shall have no obligation to clean up, or to comply with any law
regarding, or to reimburse, indemnify, defend, release or hold Lessor
harmless with respect to, any hazardous materials or wastes discovered
on the Premises which were not introduced into the Premises, or
stored, disposed of or transported in or on the Premises, by Lessee
its employees, agents or contractors.
X. Xxxxxx hereby agrees to indemnify and hold Lessee harmless of and from
any and all liability, claims, damages, losses or causes of action
whatsoever by reason of any hazardous materials in, on or about the
Premises prior to the Commencement Date.
C. If the Premises should become not reasonably suitable for Lessee's use
for the purposes specified in Paragraph 6 of the Lease as a
consequence of cessation of utilities (except for the actions or
inactions of Lessee) and such cessation of utilities persist for three
(3) business days after Lessor's receipt of written notice from
Lessee), or the presence of hazardous or toxic materials or wastes in
or about the Premises, the Building or the Project, so long as such
hazardous materials were not introduced into the Premises, the
Building or the Project by Tenant, its employees, agents, contractors
or invitees (collectively, an "Interfering Event"), then Lessee shall
be entitled to an abatement of rent to the extent that the Interfering
Event interferes with or limits such use of the Premises by Tenant.
If the Interfering Event cannot be corrected, or if the damage
resulting therefrom cannot be repaired, so that the Premises will be
reasonably suitable for Tenant's intended use within One Hundred
Twenty (120) days following the occurrence or commencement of such
Interfering Event, then Lessee shall have the right to terminate the
Lease, by giving written notice to Landlord of its exercise of such
right at any time after the expiration of said one hundred twenty
(120) day period from such occurrence of such Interfering Event.
37. EXPENSES.
A. In no event shall common area expenses include: (i) ground lease
payments, (ii) mortgage payments, (iii) costs of capital
improvements except as provided in the Lease, or (iv)
depreciation of building service equipment.
B. Notwithstanding anything to the contrary contained in the Lease,
in no event shall Lessee have any obligation to pay directly, or
to reimburse Lessor for, all or any portion of any of the
following claims, loesses, fees, charges, costs and expenses
(collectively, "Costs"):
i. Costs occasioned by the act or omission, or any violation of
any applicable law, by Lessor or any other occupant of the
Building, or their respective agents, employees or
contractors;
ii. Cost occasioned by fire, windstorm or other casualty, or by
the exercise of the power of eminent domain;
iii. Costs of correcting any construction defect in the Premises,
the Building, or because of any failure on the part of
Lessor or any other third party to comply with any or
underwriter's requirement, or with any applicable rule,
regulation, statute, ordinance, law or code affecting the
Premises, the Building as of the Commencement Date;
iv. Costs incurred to investigate the presence or suspected or
alleged presence of any hazardous or toxic materials or
wastes, or to respond to any claim of any contamination or
damage occurring because of any hazardous or toxic materials
or wastes, costs to remove any such materials or wastes from
the Building, and any judgments or other Costs incurred by
Lessor in connection with any exposure to or release of any
such materials or wastes, except to the extend cause by
Lessee's use, storage, generation or disposal of any such
material or waste.
2
38. REPAIRS AND MAINTENANCE. Lessee shall not be responsible for the
performance or any cost of repair and maintenance: (i) necessitated by the
acts or omissions of Lessor or its agents, employees or contractors; (ii)
necessitated by the acts of other Lessees in the Building or the Project or
their respective agents, employees or contractors; (iii) necessitated by
the occurrence of any act of God or any insurable casualty or the exercise
of the power of eminent domain; (iv) because of construction defects in the
Premises, the Tenant Improvements, or the Building; (v) required as a
consequence of any defect, whether latent or not, in the construction of
the Premises, or the Building; (vi) arising form a failure to materially
construct the Premises, the Tenant Improvements, or the Building in
accordance with all law and any plans approved by Lessee; (vii) for which
Lessor has a right of reimbursement from others; or (viii) which would
constitute a capital expense, improvement or replacement under generally
accepted accounting principles and all of the preceding shall be performed
by Lessor, at its sole cost and expense, except as otherwise permitted or
provided in the Lease.
39. EARLY ENTRY/ACCEPTANCE OF PREMISES.
A. Lessee and it agents and contractors shall be permitted to enter the
Premises prior to the Commencement Date for the purpose of installing
Lessee's trade fixtures and equipment, telephone equipment, security
systems and cabling for computers. Lessee shall also have access to
the Premises for the purpose of moving in (but not operating)
equipment that has been delivered for Lessee's use in the Premises,
which equipment may be moved into a stored in an area within the
Premise, designated by Lessor, in such a manner so as not to interfere
with Lessor's construction of the Tenant Improvements. In addition,
Lessee or its agents may enter the Premises at any reasonable time
prior to the Commencement Date for the purpose of inspecting the
course of construction of the Tenant Improvements. Any entry or
installation work or equipment, by Lessee and its agents in the
Premises pursuant to this paragraph shall (i) be undertaken at
Lessee's sole risk, (ii) not interfere with or delay Lessor's work in
the Premises, and (iii) not be deemed occupancy or possession of the
Premises for purposes of the Lease.
B. Acceptance of Premises:
i. Notwithstanding anything herein or in the Lease to the contrary,
Lessee's acceptance of the Premises (whether in writing or
otherwise) shall not be deemed a waiver of Lessee's right to have
all defects in materials, labor, design, construction and
equipment repaired at Lessor's sole cost and expense.
ii. Lessee shall promptly notify Lessor in writing of any defect in
construction or in the operation of any equipment (but not
Lessee's trade fixtures or equipment installed in the Premises by
Lessee at it sole expense) upon becoming aware of such defect,
and Lessor shall promptly thereafter commence the cure of such
defect and prosecute such cure to completion with due diligence
at Lessor's sole cost and expense.
iii. Effective upon completion of the Premises and all work to be
performed by Landlord therein, Landlord does hereby warrant that
the construction of the Premises any Tenant Improvements was
performed in material accordance with the plans therefor in a
good and workmanlike manner, and that all materials and equipment
furnished materially conform to said plans and are new and
otherwise of good quality.
3
40. SUBORDINATION. So long as Lessee is not in default under the Lease, Lessee
shall have the right of quiet enjoyment of the Premises, subject to the
terms of the Lease, without interruption or hindrance by Landlord or any
other person claiming through or by Lessor. Upon written request from
Lessee, Lessor shall use its best efforts to obtain a written agreement
from each holder of senior lien or senior security instrument (whether now
or hereafter existing) affecting the Premises, recognizing Lessee's rights
under the Lease and agreeing not to disturb Lessee's possession of the
Premises under the Lease so long as Lessee is not in default hereunder.
41. RIGHT OF FIRST REFUSAL TO LEASE ADDITIONAL SPACE.
A. Lessor hereby grants to Lessee a right of first refusal (the "Right of
First Refusal") to lease any space which becomes available in either
of the buildings located at 75 and 000 Xxxxxxxx Xxxx, Xxx Xxxxxx,
Xxxxxxxxxx (the "Adjacent Space"). If Lessor proposes to lease, or
grant a right of possession in, the Adjacent Space, or any portion
thereof, to a third party, Lessor may do so only after first offering
to lease the Adjacent space, or such portion thereof as Lessor
proposes to lease to the third party, (the "Offered Adjacent Space")
to Lessee o the terms and conditions set forth in this paragraph.
B. TERM OF FIRST RIGHT OF REFUSAL. The term of this Right of First
Refusal shall commence upon execution of the Lease and shall continue
until the expiration or earlier termination of the lease considering
any renewal periods.
C. NOTICE OF INTENT TO LEASE. Landlord shall give written notice of its
intent to lease, or grant a right of possession in, the Offered
Adjacent Space to Lessee ("Lessor's Notice"). Lessor's Notice shall be
delivered to Lessee in the manner specified in paragraph 27 of the
Lease. Lessor's Notice shall set forth the identity of the
prospective lessee, the form of lease Lessor intends to use (in the
event it is different than the form used herein), and the following
basic business terms upon which Landlord is willing to lease the
Offered Adjacent Space to the prospective Lessee (collectively the
"Basic Business Terms"): (i) the description of the offered Adjacent
Space; (ii) the lease term; (iii) the interior improvements Landlord
is willing to construct or that it will require to be constructed;
(iv) the method of payment for such improvements; (v) the base rent
for the initial term of the lease and the formula, if any, to be used
to determine such rent (including, if applicable, Lessee's share of
taxes, assessments, operating expenses, insurance costs, and the
like); (vi) any option(s) to extend the lease term and the rent to be
charged during such extension period; (vii) any option(s) to lease
other space in the project and the rent and other terms of the lease
to be consummated upon exercise of such option.
D. EXERCISE OF FIRST RIGHT OF REFUSAL. Lessee may elect to exercise its
First right of Refusal by giving Lessor written notice of such
election on/or before the third (3rd) business day following actual
receipt of Lessor's Notice. Lessee's failure to give written notice
of an election to exercise tits Right of First Refusal within the
three (3) business day period shall be deemed a waiver of its Right of
First Refusal with respect to the particular lease transaction and the
proposed Lessee described in Lessor's Notice. Lessee's waiver of its
Right of First Refusal with respect to any particular proposed lease
transaction, shall not be deemed a waiver of Lessee's right of First
Refusal with respect to any other proposed lease transaction
concerning the Adjacent Space or any other proposed lease transaction
concerning the Offered Adjacent Space.
E. TERMS OF LEASE. Upon Lessee's exercise of the Right of First Refusal,
Lessor shall lease to Lessee and Lessee shall lease from Lessor the
Offered Adjacent Space on the Basic Business Terms stated in Lessor's
Notice. The parties also shall execute a written lease in the same
form as the Lease, modified to incorporate the Basic Business Terms
set forth in Lessor's Notice and to eliminate any terms of the Leases
that are inconsistent with the Basic Business Terms.
4
X. XXXXXX'X RIGHT TO LEASE. If Lessee does not indicate in writing its
election to lease the Offered Adjacent Space in accordance with
subparagraph D within the allowed time period, Lessor thereafter shall
have the right to lease the Offered Adjacent Space to the prospective
Lessee identified in Lessor's Notice; provided (i) the lease is
materially ("materially" shall man that the rent is at least ninety-
five percent (95%) of the rent or tenant improvements allowance so
stated in the written notice to Lessor) consummated on the same Basic
Business Terms set forth in Lessor's Notice and on such other terms as
are contained in the form of lease included with Lessor's Notice
consummated on/or before the ninety (90) days following delivery of
Lessor's Notice. After expiration of the ninety (90) day period, any
lease transaction shall be deemed a new determination by Lessor to
lease the Offered Adjacent Space and no interest in the Offered
Adjacent Space may be consummated, unless Lessee is first offered the
right to lease such space in accordance with the provisions of this
Right of First Refusal.
42. BROKERAGE COMMISSION. Lessor expressly acknowledges and agrees that it
shall be solely liable for the payment of any and all brokers' commissions
and/or finder's fees payable in connection with the execution of the Lease
(including but not limited to any commission or fee due as set forth in any
addendum attached to the Lease with regard thereto), and Lessee shall have
no liability or obligation therefor. Lessee hereby represents and warrants
that it has not dealt with any other brokerage firm other than Cornish &
Xxxxx Commercial.
43. SIGNAGE. Lessee shall be entitled to place signage on the existing
monument sign as well as on-building provided that Lessor shall grant its
approval, which approval shall not be unreasonably withheld and further,
provided that the Lessee has received all permits and approvals from all
governmental agencies. Lessee shall, upon the termination or earlier
expiration of this Lease, remove all such signage and restore the affected
area.
44. Lessor shall deliver the demised premises to Lessee with an interior
ambient noise level in lessee's lobby of that approximately equal to the
noise level in the lobby of Fox & Xxxxxxxxx (75 Shoreway, Suite 1000).
Accepted and Agreed: Accepted and Agreed:
LESSEE LESSOR.
By: /S/ [signature unreadable] By: /S/ [signature unreadable]
--------------------------- ---------------------------
Authorized Officer General Partner
DOMESTIC AUTOMATION WDT-SHOREWAY
Date: 5/4/89 Date: 4/28/1989
------- --------
5
ADDENDUM II
TO THAT CERTAIN LEASE DATED APRIL 6, 1989 BY AND BETWEEN WDT-SHOREWAY, LESSOR,
AND DOMESTIC AUTOMATION COMPANY, LESSEE.
To that certain Lease, the following wording is added:
45. It is Lessee's desire to occupy plus or minus 22,272 additional square feet
of space located at the rear of 00 Xxxxxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxxxx
and plus or minus 6,150 additional square feet of space directly contiguous
to Lessee's current space at 000 Xxxxxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxxxx
(see Exhibit C).
46. USE OF PREMISES.
The premises shall be used exclusively for the purpose of general
office/research and development, warehousing normal and customary to the
electronic industry.
47. TERM.
This lease term shall be for forty-five (45) months, commencing October 1,
1990, and ending June 30, 1994.
48. OPTION TO EXTEND TERM.
A. Lessee shall have the option to extend the term on all the provisions
contained in this Lease for two (2) five (5) year periods with the monthly
rent for the option period at 95% of fair market rent for the premises at
the commencement of the option period in question, provided that:
(a) Lessee has given to Lessor written notice of exercise of that
option ("option notice") at least six (6) months before
expiration of the initial term or extended term(s) as the case
may be.
(b) Lessee is not in default in the performance of any of the terms
and conditions of the Lease on the date of giving the option
notice, and Lessee is not in default on the date that the
extended term is to commence.
In the event Lessor and Lessee cannot agree on the fair market rental
rate for the premises within thirty (30) days after Lessee delivers to
Lessor its written notice of exercise of the option, the fair market rental
rate for the Premises during the option period in question shall be
determined by the appraisal procedures set for the in subparagraph B below.
B. Within thirty (30) days after the expiration of said thirty (30) day
period, Lessor and Lessee shall jointly appoint a disinterested, qualified
real estate appraiser for the purpose of determining the fair market rental
rate for the premises at the commencement of the option period, or failing
this joint action, shall each separately designate a disinterested
qualified real estate appraiser and, within fifteen (15) days after their
appointment, the two (2) designated appraisers shall jointly designate a
third similarly disinterested qualified real estate appraiser. Failure of
either Lessor or Lessee to appoint an appraiser within the time allowed
shall be deemed equivalent to appointing the
appraiser appointed by the other party. If, within fifteen (15) days after
their appointment, the two (2) designated appraisers shall not be able to
agree on a third appraiser, the third appraiser shall be appointed by the
American Institute of Real Estate Appraisers. Each of the appraisers
appointed shall be either a MAI appraiser affiliated with the American
Institute of Real Estate, or an ASA appraiser affiliated with the American
Society of Real Estate Appraisers or an SREA appraiser affiliated with the
Society of Real Estate Appraisers, and shall have at least five (5) years
experience in real estate appraising and shall be familiar with real estate
values and appraisal procedures in the County of San Mateo, California. On
the first working day after the commencement of the fifth (5th) calendar
month prior to the then expiration date of the term of this Lease, the
three (3) appraisers shall get together with the Lessor's attorney, unless
a different time or place is mutually agreed upon by the parties. At such
meeting, the three (3) appraisers shall deliver to Lessor and Lessee sealed
envelopes, their appraisals of the fair market rental rate for the premises
at the commencement of the option period in question. The appraisal
farthest from the median of the three appraisals shall be disregarded and
the mathematical average of the remaining two appraisals shall be deemed to
be the fair market rental rate for the premises and shall be binding and
conclusive. Lessor and Lessee shall each pay the cost and expenses of the
appraiser appointed by it, and shall share equally the expenses and costs
of the third appraiser. After the determination of the fair market rental
rate pursuant to the foregoing appraisal procedures, but prior to four (4)
months prior to the termination date, of this Lease, Tenant may withdraw
its election to extend the term of this Lease.
49. RENT
Lessee shall pay Lessor rent for the premises the first day of each month
without deduction or offset, prior notice, or demand, at such place as may
be designated from time to time by Lessor as follows:
00 XXXXXXXX XXXX
Monthly
-------
Term Size Rent/Square Foot Rent Due
---- ---- ---------------- --------
0-6 months 5,525 $1.10 NNN/Month $ 6,078.00
7-9 months 11,050 $1.10 NNN/Month $12,155.00
10-12 months 19,000 $1.10 NNN/Month $20,900.00
13-45 months 22,272 $1.10 NNN/Month $24,499.00
000 XXXXXXXX XXXX
Monthly
-------
Term Size Rent/Square Foot Rent Due
---- ---- ---------------- --------
0-45 6,150 $.60 NNN/Month $3,690.00
50. TENANT IMPROVEMENTS
00 Xxxxxxxx Xxxx: Any tenant improvements up to $10.00/square foot
($222,720.00) shall be provided by Lessor and be amortized at 12% over the
remaining term of the lease to be paid by Lessee monthly.
000 Xxxxxxxx Xxxx: (6,150 square feet) If desire during the lease term, any
tenant improvements up to $25.00 per square foot ($153,750.00) shall be
provided by Lessor and be amortized at 12% interest over the remaining term
of the lease to be paid by Lessee monthly.
51. OPERATING EXPENSES
Operating expenses shall remain the same as the base lease.
52. PARKING
The parking ratio shall be 4/1000.
53. RIGHT OF SECOND REFUSAL
Lessee shall have a right of second refusal on any adjacent space and shall
have a right of second refusal to purchase the property.
54. NOTIFICATION BY LESSOR
Lessor shall use best effort to notify Lessee of any space coming available
within the project prior to marketing such space.
55. BROKERAGE FEES
Lessor shall be solely responsible for leasing commission due Blickman
Turkus and Cornish & Xxxxx per a separate agreement.
All other terms and conditions of the base lease remain in full force and
effect.
AGREED AND ACCEPTED:
LESSOR LESSEE
WDT - SHOREWAY DOMESTIC AUTOMATION COMPANY
/S/ Xxxxxx X. Xxxxx. III /S/ Xxxxxx X. Xxxx
------------------------------ ----------------------
Xxxxxx X. Xxxxx, III Authorized Officer
Date: 9/20/90 Date: 13 September 1990
-------------------------- ------------------
EXHIBIT C HIGHWAY 101
WDT SHOREWAY 00-000 XXXXXXXX XXXX
XXX XXXXXX, XXXXXXXXXX ALB 8/27/90
[site plan graphic omitted]
ADDENDUM III
TO THAT CERTAIN LEASE DATED APRIL 6, 1989, BY AND BETWEEN WDT - SHOREWAY,
LESSOR, AND DOMESTIC AUTOMATION COMPANY, LESSEE.
To that certain Lease the following wording is added:
56. TENANT IMPROVEMENTS
Referral is made to Paragraph 50 (Tenant Improvements) of Addendum II.
Lessor, at the request and approval of Lessee, has installed a display room
at 000 Xxxxxxxx Xxxx. The total cost for installation of said room is
$29,309,00.
Balance of tenant improvements at 000 Xxxxxxxx Xxxx remaining under terms
of the lease is: $124,441.00.
An additional $29,309.00 in tenant improvements has been provided by
Lessor, which will result in an additional monthly rent assessment of
$858.00 over the term of the lease. Lessee shall include the additional
assessment in the payment of his base rent which is due on the first day of
each month commencing January 1, 1991. All late fees outlined in Paragraph
Three (3) of the base Lease shall be applicable to the tenant improvement
reimbursement payment also.
AGREED AND ACCEPTED:
LESSOR LESSEE
WDT - SHOREWAY DOMESTIC AUTOMATION COMPANY
/S/ Xxxxxx X. Xxxxx, III /S/ Xxxxxx X. Xxxx
------------------------ ------------------
Xxxxxx X. Xxxxx, III Xxxxxx X. Xxxx
General Partner Vice President, Finance
Date: 1/15/91 Date: 1/15/91
------------------- --------------
ADDENDUM IV-REVISED
(SUPERSEDES ADDENDUM III)
TO THAT CERTAIN LEASE DATED APRIL 6, 1989, BY AND BETWEEN WDT - SHOREWAY,
LESSOR, AND DOMESTIC AUTOMATION COMPANY, LESSEE.
To that certain Lease the following wording is added:
56. TENANT IMPROVEMENTS
Referral is made to Paragraph 50 (TENANT IMPROVEMENTS) of Addendum II.
Lessor, at the request and approval of Lessee, has installed improvements
(including, but not limited to display room at 125 Shoreway and
communications trench with conduit and other special improvements at 00
Xxxxxxxx Xxxx). The total cost to date for installation of said
improvements is $105,143.00.
This additional $105,143.00 in tenant improvements has been provided by
Lessor, and will result in an additional monthly rent assessment of
$3,202.19 over the term of the lease. Lessee shall include the additional
assessment in the payment of his base rent which is due on the first day of
each month commencing March 1, 1991. All late fees outlined in Paragraph
Three (3) of the base Lease shall be applicable to the tenant improvement
reimbursement payment also.
All other terms and conditions of the base lease remain in full force and
effect.
AGREED AND ACCEPTED:
LESSOR LESSEE
WDT - SHOREWAY DOMESTIC AUTOMATION COMPANY
/S/ Xxxxxx X. Xxxxx, III /S/ Xxxxxx X. Xxxx
------------------------- ------------------------
Xxxxxx X. Xxxxx, III Xxxxxx X. Xxxx
General Partner Vice President, Finance
Date: 3/19/91 Date: 3/11/91
------------------- -------------------
ADDENDUM V - (REVISED)
(SUPERSEDES ADDENDUM IV)
TO THAT CERTAIN LEASE DATED APRIL 6,1989, BY AND BETWEEN WDT -
SHOREWAY, LESSOR, AND DOMESTIC AUTOMATION COMPANY, LESSEE.
To that certain Lease the following wording is added:
57. TENANT IMPROVEMENTS
Referral is made to Paragraph 50 (TENANT IMPROVEMENTS) of Addendum II.
Lessor, at the request and approval of Lessee, has installed improvements
(including, but not limited to display room at 000 Xxxxxxxx Xxxx and
communications trench with conduit and other special improvements at 00
Xxxxxxxx Xxxx). The total cost to date for installation of said
improvements is $117,016.00.
This new total of $117,016.00 in tenant improvements has been provided by
Lessor, and will result in an additional monthly rent assessment of
$3,587.69 over the term of the lease. Lessee shall include the additional
assessment in the payment of his base rent which is due on the first day of
each month commencing June 1, 1991. All late fees outlined in Paragraph
Three (3) of the base Lease shall be applicable to the tenant improvement
reimbursement payment also.
All other terms and conditions of the base Lease remain in full force and
effect.
AGREED AND ACCEPTED:
LESSOR LESSEE
WDT-SHOREWAY DOMESTIC AUTOMATION COMPANY
/S/ Xxxxxx X. Xxxxx /S/ Xxxxxx X Xxxx
------------------- -----------------
Xxxxxx X. Xxxxx, III Xxxxxx X. Xxxx
General Partner Vice President, Finance
Date: 5/31/91 Date: 5/21/91
------------- -------------
ADDENDUM VI
TO THAT CERTAIN LEASE DATED APRIL 6, 1989, BY AND BETWEEN WDT -
SHOREWAY, LESSOR AND DOMESTIC AUTOMATION COMPANY, LESSEE.
To that certain Lease the following wording is added:
58. TERMINATION OF LEASE FOR PARTIAL SPACE
Lessor and Lessee hereby agree to terminate that portion of the lease of
plus or minus 6,150 square feet of warehouse space as shown on attached
Exhibit D, at 000 Xxxxxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxxxx.
59. RENT FOR REMAINING SPACE (Superseded by Addendum VII)
All other terms and conditions of the base Lease remain in full
force and effect.
AGREED AND ACCEPTED:
LESSOR LESSEE
WDT - SHOREWAY DOMESTIC AUTOMATION COMPANY
/S/ Xxxxxx X. Xxxxx, III /S/ Xxxx X. Xxxx
------------------------ --------------------------
Xxxxxx X. Xxxxx, III Authorized Officer
General Partner
Date: 10/14/92 Date: 9 Oct 92
------------------ ----------------
EXHIBIT D
WDT SHOREWAY
00-000 XXXXXXXX XXXX
XXX XXXXXX, XX 8/27/90
[site plan graphic omitted]
ADDENDUM VII
To that certain Lease dated April 6, 1989, by and between WDT-Shoreway, Lessor,
and Domestic Automation Company, Lessee.
Both Lessor and Lessee hereby agree to amend that certain Lease as follows:
60. RENT FOR REMAINING SPACE
Rent for plus or minus 5,007 square feet of warehouse space now occupied by
Domestic Automation in that certain building commonly known as 125 Shoreway
shall be adjusted for the remainder of the Lease term as follows:
commencing October 1, 1992, rent shall be reduced from $1.20/sf/mo/NNN to
$.80/sf/mo/NNN.
The total monthly rent payment made by Domestic Automation commencing
October 1, 1992 shall be as follows:
125 SHOREWAY
Office Space @ $1.20/sf/mo/NNN +17,457 sq ft $ 20,948.00
Warehouse Space @ $.80/sf/mo/NNN + 5,007 sq ft 4,005.00
Additional Rent Assessed-TI's 1,585.00
Additional Rent Assessed-TI's 858.00
Total Rent, 125 Shoreway $ 27,396.00
75 SHOREWAY
Office Space @ $ 1.10/sf/mo/NNN +22,272 sf ft $24,499.00
Additional Rent Assessed-TI's 2,729.69
Total Rent, 75 Shoreway $27,228.69
TOTAL MONTHLY RENT PAYMENT: $54,624.69
All other terms and conditions of the Lease shall remain in full force and
effect.
AGREED AND ACCEPTED:
Lessor: Lessee:
WDT-SHOREWAY DOMESTIC AUTOMATION COMPANY
/S/ Xxxxxx X. Xxxxx, III /S/ Xxxx X. Xxxx
------------------------ ----------------------------
Xxxxxx X. Xxxxx, III Xxxx X. Xxxx
General Partner Chairman & CEO
Date: 10/5/92 Date: 1 OCT 92
-------------- -----------------------
FIRST AMENDMENT TO LEASE AGREEMENT
This First Amendment to Lease Agreement ("Amendment") is effective as of
July 1, 1994 (the "Effective Date") by and between WDT-Shoreway, as Lessor,
and CellNet Data Systems, Inc. (formerly Domestic Automation Company) as
Lessee who agree as follows:
1. RECITALS: This Agreement is entered into with respect to the following
facts and objectives:
A. Lessor and Lessee entered into that certain written lease
agreement dated April 6, 1989 for the property commonly known as 000 Xxxxxxxx
Xxxx, Xxxxx 0000, Xxx Xxxxxx, Xxxxxxxxxx, as amended by that certain Addendum To
That Certain Lease Agreement By And Between Domestic Automation Company and WDT
-Shoreway Dated April 6, 1989, as amended by that certain Addendum 11, executed
on September 20, 1994 and September 13, 1994, as amended by that certain
Addendum 11, executed on January 1, 1991 and January 15 1991 , as amended by
that certain Addendum IV - Revised, executed on March 19,1991 and March 11 ,
1991 and May 21, 1991, as amended by that certain Addendum VI, executed on
October 14, 1992 and October 9, 1992 and as further amended by that certain
Addendum VII, executed on October 5, 1992 and October 1, 1992 (collectively, the
"Lease").
B. Lessee has changed its name from Domestic Automation Company to
CellNet Data Systems, Inc. Lessor and Lessee now desire to change the name of
Lessee to CellNet Data Systems, Inc., a California corporation, to reflect said
change.
X. Xxxxxx now further desires to lease to Lessee and Lessee now
desires to lease from Lessor that certain approximately six thousand one hundred
fifty (6,150) square feet of warehouse space located at 000 Xxxxxxxx Xxxx, Xxx
Xxxxxx (the "Additional Space"), California which space Lessee formerly leased
from Lessor pursuant to the Lease and as to which space Lessee and Lessor
terminated the Lease pursuant to Addendum VI.
X. Xxxxxx and Lessee now further desire to extend the term of the
Lease for a term of four (4) years, commencing on July 1, 1994, and expiring on
June 30, 1998.
X. Xxxxxx now further desires to provide to Lessee an allowance of
Two Hundred Thousand Dollars ($200,000) to construct mutually acceptable
improvements in the Premises on the terms and conditions set forth below.
X. Xxxxxx further desires to grant to Lessee an option to lease that
certain approximately fifteen thousand two hundred ninety six (15,296) square
feet of space presently leased and occupied by Fox & Xxxxxxxxx located at 00
Xxxxxxxx, Xxx Xxxxxx, Xxxxxxxxxx and as designated as option Area - D on EXHIBIT
C attached hereto ("Option Area - D") on the terms and conditions set forth
below.
2. NAME CHANGE: The name of Lessee is changed from Domestic Automation
Company to CellNet Data Systems, Inc., a California corporation.
3. ADDITIONAL SPACE: Lessor hereby leases to Lessee and Lessee hereby
leases from Lessor the Additional Space. Accordingly, the Premises shall mean
the following:
22,272 sq. ft of office space at 00 Xxxxxxxx Xxxx
17,457 sq, ft. of office space at 000 Xxxxxxxx Xxxx
5,007 sq. ft. of warehouse space at 000 Xxxxxxxx Xxxx
6,150 sq. ft. of warehouse space at 000 Xxxxxxxx Xxxx
4. LEASE EXTENSION: The Lease term is hereby extended to June 30, 1998.
5. RENT: Rent, as described in Paragraph 3 of the Lease shall be as
follows:
A. Commencing on July 1, 1994 and continuing thereafter through June
30, 1997, monthly rent shall equal one and 10/100 dollars ($1.10) per square
foot of office space (I.E., Forty Three Thousand Seven Hundred Two
Dollars ($43,702) per month) and sixty cents ($0.60) per square foot of
warehouse space (I.E., Six Thousand Six Hundred Ninety Four Dollars ($6,694) per
month).
B. Commencing on July 1, 1997 and continuing thereafter until June
30, 1998, monthly rent shall equal One and 15/100 dollars ($1.15) per square
foot of office space (I.E., Forty Five Thousand Six Hundred Eighty Eight Dollars
($45,688) per month) and sixty five cents ($0.65) per square foot of warehouse
space (I.E. Seven Thousand Two Hundred Fifty Two Dollars ($7,252) per month).
6. TENANT IMPROVEMENT ALLOWANCE: Lessor shall provide to Lessee an
allowance of Two Hundred Thousand Dollars ($200,000) (the "Allowance") to
construct, on or before twenty-four (24) months following the Effective Date
and/or during the first twenty-four (24) months of any extensions of the
Lease, improvements in the Premises (including the Additional Space and any
other space which Lessee in the future may lease from Lessor). Any
improvements constructed using all of any portion of the Allowance shall be
approved by Lessor, which approval shall not be unreasonably withheld or
delayed. If Lessee uses all or any portion of the Allowance in constructing
said improvements, Lessee shall reimburse Lessor for the same in the form of
monthly installments of additional rent. The portion of the Allowance so
used shall be amortized over the term of the Lease, including any extensions
thereof, and shall bear interest at the rate of two percent per annum (2%)
over the Bank of America Reference Rate, which rate shall be adjusted
quarterly. If Lessee terminates the Lease prior June 30, 1998, the
unamortized balance of said funds shall be immediately due and payable.
7. OPTION TO LEASE: Lessor hereby grants to Lessee an option to lease (the
"Option") Option Area - D on the following terms and conditions.
A. Lessee may exercise the Option only by giving Landlord written
notice ("Lessee's Notice") of its intention to do so on or before July 1,
1996, but no earlier that July 1, 1995.
B. Immediately upon receipt of Lessee's Notice, Lessor shall, at
Lessor's sole cost and expense, use reasonable good faith efforts to negotiate
and execute a written lease termination agreement with Fox & Xxxxxxxxx for
Option Area - D, which agreement shall provide for the termination of such lease
and surrender of possession by the tenant thereunder so that Option Area - D
would be available no later that twelve (12) months after Lessors receipt of
Lessee's Notice (the "Delivery Period"). Notwithstanding the foregoing, unless
Lessee agrees otherwise, the lease for Option Area shall not commence sooner
than the later of (i) six (6) months following the date that Lessor receives
Lessee's Notice or (ii) three (3) months following the date that Fox & Xxxxxxxxx
vacates Option Area -D (the "Option Commencement Period").
(i) If Lessor executes said lease termination agreement enabling
Lessor to deliver possession to Lessee during the Delivery Period, then Lessor
shall lease to Lessee and Lessee shall lease from Lessor Option Area - D by
executing an amendment to the Lease which amendment shall provide for the
following terms and conditions;
(a) The definition of the Premises shall be amended to
provide that the Premises includes Option Area - D.
(b) The term of the Lease shall be extened for a term of
five (5) years, commencing on the date that Option Area - D is delivered to
Lessee in the condition required pursuant to Subparagraph 7 (B) (i) (c) of this
Amendment (the "Option Area - D Commencement Date").
(c) Rent for the Premises (including Option Area - D) shall
be as follows, as applicable:
(1) Commencing on the Option Area - D Commencement
Date and continuing thereafter through and including June 30, 1997, monthly rent
shall equal One and 10/100 Dollars ($1.10) per square foot of office space and
Sixty Cents ($0.60) per square foot of warehouse space.
(2) Commencing on July 1, 1997 and continuing
thereafter through and including June 30, 1998, monthly rent shall equal
One and 15/100 Dollars ($1.15) per square foot of office space and
Sixty-Five Cents ($.65) per square foot of warehouse space.
(3) Commencing on July 1, 1998 and continuing
thereafter through and including June 30, 1999, monthly rent shall equal One and
18/100 ($1.18) per square foot of office space and Sixty Five Cents ($0.65) per
square foot of warehouse space.
(4) Commencing on July 1, 1999 and continuing
thereafter through and including June 20, 2000, monthly rent shall equal One and
23/100 Dollars ($1.23) per square foot of office space and Sixty Eight Cents
($0.68) per square foot of warehouse space.
(5) Commencing on July 1, 2000 and continuing
thereafter through and including June 30, 2001, monthly rent shall equal One and
28/100 ($1.28) per square foot of office space and Seventy Cents ($0.70) per
square foot of warehouse space.
(6) Commencing on July 1, 2001 and continuing
thereafter through and including June 30, 2002, monthly rent shall equal One and
33/100 ($1.33) per square foot of office space and Seventy Three Cents ($0,73)
per square foot of warehouse space.
(ii) Notwithstanding the foregoing, if Lessor fails to execute
such lease termination agreement on June 30, 1997 after Lessor's receipt of
Lessee's Notice than Lessee shall have the option to terminate the Lease
effective as of June 30, 1997 by notifying Lessor of its intention to do so
provided that Lessee pays to Lessor on June 30, 1997, Two Hundred Eleven
Thousand Seventy Hundred Sixty Dollars ($211,760) (equivalent to four (4)
months' rent) plus an additional amount equal to Lessor's reasonable estimation
of additional rent which would be payable by Lessee during said four (4) month
period pursuant to Paragraph 8B, 9C and 10 of the Lease.
8. NO FURTHER AMENDMENT: Except as amended herein, all other terms and
conditions of the Lease shall remain unchanged.
IN WITNESS WHEREOF, the parties have executed this First
Amendment to Lease Agreement as of the day and year first above written.
LESSOR:
WDT-SHOREWAY
By: /S/ [signature unreadable]
---------------------------
Its: GP
---------------------------
LESSEE:
CELLNET DATA SYSTEMS, INC.
By: /S/ Xxxx X. Xxxx
---------------------------
Its: CEO
---------------------------
EXHIBIT C
WDT SHOREWAY
SHOREWAY BUSINESS PARK
[site plan graphic omitted]
4. RENT: Rent, as described in Paragraph 3 of the Lease shall be as follows:
PERIOD MONTHLY RENT/NNN (see attached
breakdown on Exhibit D)
SECOND AMENDMENT TO LEASE AGREEMENT
This Second Amendment to Lease Agreement ( Amendment') is effective as of
April 1, 1995 (the Effective Date') by and between WDT-Shoreway, as Lessor, and
CellNetdata Systems, Inc. (formerly Domestic Automation Company) as Lessee who
agree as follows:
1. Recitals:. This Agreement is entered into with respect to the following
facts and objectives:
A. Lessor and Lessee entered into that certain written lease agreement
dated April 6, 1989 for the property commonly known as 000 Xxxxxxxx Xxxx, Xxxxx
0000, Xxx Xxxxxx, Xxxxxxxxxx, as amended by that certain Addendum To That
Certain Lease Agreement By and Between Domestic Automation Company and WDT-
Shoreway Dated April 6, 1989, as amended by that certain Addendum II, executed
on September 20, 1994 and September 13, 1994, as amended by that certain
Addendum III, executed on January 1, 1991 and January 15, 1991 as amended by
that certain Addendum IV - Revised, executed on March 19, 1991 and March 7,
1991, as amended by that certain Addendum V, executed on May 31, 1991 and May
21, 1991, as amended by that certain Addendum VI, executed on October 14, 1992
and October 9, 1992, as amended by that certain Addendum VII, executed on
October 5, 1992 and October 1, 1992, and as amended by that certain First
Amendment to Lease Agreement, executed on July 1, 1994 (collectively, the
Lease').
B. Lessee desires to exercise its Option to Lease from Lessor that
certain approximately fifteen thousand two hundred ninety-six (15,296) square
feet of office space located at 00 Xxxxxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxxxx as
designated as Option Area D on EXHIBIT C attached hereto (the Additional
Space') on the terms and conditions set forth below.
2. ADDITIONAL Space: Lessor hereby leases to Lessee and Lessee hereby leases
from Lessor the Additional Space. Accordingly, the Premises shall mean the
following:
15,296 sq. ft. of office space at 00X Xxxxxxxx Xxxx
22,272 sq. ft. of office space at 00X Xxxxxxxx Xxxx
17,457 sq. ft. of office space at 000 Xxxxxxxx Xxxx
5,007 sq. ft. of warehouse space at 000 Xxxxxxxx Xxxx
6,150 sq. ft. of warehouse space at 000 Xxxxxxxx Xxxx
66,182 SQUARE FEET
3. LEASE EXTENSION: The Lease term is hereby extended to December 31, 2000.
of the Lease relating to the initial Security Deposit shall likewise apply to
the additional Security Deposit.
8. NO FURTHER AMENDMENT: Except as amended herein, all other terms and
conditions of the Lease shall remain unchanged.
IN WITNESS WHEREOF, the parties have executed this First Amendment to Lease
Agreement as of me day and year first written above.
LESSOR;
WDT-SHOREWAY
By: /S/ [signature unreadable]
Its: General Partner
LESSEE:
CELLNET DATA SYSTEMS, INC.
By: /s/ [signature unreadable]
Its: Vice President
3
EXHIBIT D
CELLNET DATA SYSTEMS
BREAKDOWN OF RENT
From To 75 Office F&C Rent 125 Office 125 TI TOTAL
Differential Warehouse Assessment* MONTHLY
PAYMENT
-------------------------------------------------------------------------------------------------------------
4/1/95 12/31/96 41,324.80 993.00 19,202.70 6,694.20 5,299.93 73,514.63
1/1/97 12/31/97 43,203.20 993.00 20,075.55 7,252.05 5,299.93 76,823.73
1/1/98 6/30/98 44,330.24 993.00 20,599.26 7,252.05 5,299.93 78,474.48
7/1/98 12/31/98 44,330.24 993.00 21,599.26 7,252.05 0.00 73,174.55
1/1/99 12/31/99 46,208.64 993.00 21,472.11 7,586.76 0.00 76,260.51
1/1/00 12/31/00 48,087.04 993.00 22,344.96 7,809.90 0.00 79,234.90
*For TI's completed in 1994
