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EXHIBIT 10.13
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is dated for reference
purposes only as July 21, 1997, by and between CARRAMERICA REALTY CORPORATION, a
Maryland corporation ("Landlord"), and WIRE NETWORKS, INC. ("Tenant").
RECITALS
A. Golden Century Investment Company ("Golden Century"), Landlord's
predecessor in interest, and Tenant entered into that certain Lease
Agreement dated November 7, 1994 and the Addendum thereto (collectively,
the "Initial Lease") for Suite 150 (approximately 6,500 rentable square
feet) of that certain building commonly known as 0000 Xxxxxxx Xxxxx in
San Mateo, California ("Building 3" or the "Building"). Golden Century
and Tenant entered into that certain Addendum II to the Initial Lease
pursuant to which the size of Suite 150 was increased by 3,041 rentable
square feet for a total of 9,541 rentable square feet (the "Initial
Premises"). Landlord and Tenant agree and acknowledge that the date of
the Initial Lease is incorrectly identified as November 8, 1994 (instead
of November 7, 1994) in both Addendum and Addendum II.
B. Landlord and Tenant desire to further expand the size of the Leased
Premises and to extend the Lease Term, pursuant to the terms and
conditions set forth below.
C. The Initial Lease as amended by the Addendum, Addendum II and this
Amendment shall be referred to herein as the Lease.
NOW, THEREFORE, for good and valuable consideration, the adequacy of
which is hereby acknowledged, the parties hereby mutually promise, covenant and
agree as follows:
1. Effectiveness of Amendment. Notwithstanding any provision herein to the
contrary, the effectiveness of this Amendment shall be expressly
conditioned upon the Landlord's receipt of the cash sum of $28,713.50
(i.e., the increase in the Security Deposit referred to in paragraph 10
below).
2. Lease Premises. As of the Commencement Date (as defined below), Section
I of the Lease shall be amended to include the space (approximately
4,569 rentable square feet) within following Suites in the Building
(collectively, the "Expansion Premises"), as described in more detail in
Exhibit A, attached hereto:
Suite 105 431 rentable square feet
Suite 106 1,206 rentable square feet
Suite 107 729 rentable square feet
Suite 108 2,203 rentable square feet
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Total Expansion Premises 4,569 rentable square feet
As of the date on which each of the Commencement Dates for each of the
foregoing Suites has occurred, the term Premises shall mean all of the
Initial Premises and the
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Expansion Premises (totaling approximately 14,110 rentable square feet).
Landlord and Tenant hereby agree that (i) the rentable square footage of
the Premises shall be 14,100 rentable square feet, and (ii) neither
Tenant nor Landlord shall have the right to remeasure the square footage
of the Premises during the "Term" of this Lease (as defined below).
3. Commencement Date. Tenant shall commence to perform all of its covenants
and obligations under the Lease with respect to each suite comprising
the Expansion Premises, including the obligation to pay rent (the
"Commencement Date") as follows:
a. Suites 105 and I07. With respect to Suites 105 and 107, the
Commencement Date shall be the later of (i) the Close of Escrow,
or (ii) December 1, 1997. Notwithstanding the foregoing,
Landlord shall exercise commercially reasonable efforts to make
both Xxxxx 000 xxx Xxxxx 000 available to Tenant for early
occupancy on or about November 1, 1997 for the purpose of
constructing certain interior improvements therein. Any early
occupancy of such suites by Tenant shall be subject to the terms
of the Lease, except that Tenant's obligation to pay Landlord
the Base Monthly Rental for such occupied space shall not
commence until December 1, 1997 (i.e., the Commencement Date for
such space).
b. Suites 106 and 108. With respect to Suites 106 and 108, the
"Commencement Date" shall be the later of (i) the Close of
Escrow, or (ii) September 1, 1997. Notwithstanding the
foregoing, Landlord shall exercise commercially reasonable
efforts to make both Suites 106 and 108 available to Tenant for
early occupancy on or about July 15, 1997 for the purpose of
constructing certain interior improvements therein. Any early
occupancy of such suites by Tenant shall be subject to the terms
of the Lease, except that Tenant's obligation to pay Landlord
the Base Monthly Rental for such occupied space shall not
commence until September 1, 1997 (i.e., the Commencement Date
for such space).
4. Term. Section 2 of the Lease is hereby amended to extend the Lease
"Term" such that the Lease shall now expire on August 31, 2001
("Expiration Date"), unless the Lease is terminated earlier pursuant to
the terms of the Lease.
5. Rent. As of the applicable Commencement Date for each Suite which is a
part of the Expansion Premises (as described in Section 3 of this
Amendment), and in the case of the Initial Leased Premises as of
September 1, 1997, the first sentence of Section 3(a) of the Lease shall
be amended in its entirety to read as follows:
Tenant agrees to pay a base monthly rental ("Base Monthly
Rental") for the Premises during the Term in the following
amounts:
(1) Suite 150: Months Base Monthly Rent
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9/1/97 - 8/31/98 $25,569.88
9/1/98 - 8/31/99 $26,046.93
9/1/99 - 8/31/2000 $26,523.98
9/1/2000 - 8/31/2001 $27,001.03
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(2) Suite 105: Months Base Monthly Rent
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12/1/97 - 8/31/98 $1,155.08
9/1/98 - 8/31/99 $1,176.63
9/1/99 - 8/31/2000 $1,198.18
9/1/2000 - 8/31/2001 $1,219.73
(3) Suite 106 Months Base Monthly Rent
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9/1/97 - 8/31/98 $3,232.08
9/1/98 - 8/31/99 $3,292.38
9/1/99 - 8/31/2000 $3,352.68
9/1/2000 - 8/31/2001 $3,412.98
(4) Suite 107 Months Base Monthly Rent
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12/1/97 - 8/31/98 $1,953.72
9/1/98 - 8/31/99 $1,990.17
9/1/99 - 8/31/2000 $2,026.62
9/1/2000 - 8/31/2001 $2,063.07
(5) Suite 108: Months Base Monthly Rent
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9/1/97 - 8/31/98 $5,904.04
9/1/98 - 8/31/99 $6,014.19
9/1/99 - 8/31/2000 $6,124.34
9/1/2000 - 8/31/2001 $6,234.49
The foregoing amounts shall be payable in advance each month on the
first (1st) day of the month and shall become delinquent on the 5th day
of each month and shall be payable to Landlord at the address and in the
manner set forth below:
If by check: CarrAmerica Realty Corporation
t/a: San Xxxxx XX & III
X.X. Xxx 000000
Xxxxxxx, XX 00000-0000
If by wire transfer: Bank Name: NationsBank of Georgia
ABA Number: 000-000-000
Account Name: CarrAmerica Realty
Corporation
t/a: San Xxxxx XX & III
Account Number: 3255808026
Notification: Mr. Xxxx Xxxxxxxx
(CarrAmerica)
Telephone Number: (000) 000-0000
6. Base Year. As of the Commencement Date, the term "Base Year" shall be
amended to mean the 1997 calendar year. As a result, the reference to
1995 in Section 3(b) is hereby deleted and replaced with a reference to
"1997", and the first sentence in Section 3(c) is hereby deleted and
replaced with the following: "Landlord shall be responsible for
Operating Expenses to the extent they do not exceed an aggregate amount
in any one calendar year equal to those Operating Expenses paid or
incurred by Landlord during the 1997 Base Year."
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7. Operating Expenses. The definition of "Operating Expenses" contained in
Section 3(f)(2) is hereby clarified to specifically include a "property,
management fee" in an amount not to exceed three percent (3%) of the
total rent due hereunder, whether or not such fee is paid to an
independent contractor.
8. Project. The Building (i.e., Building 3) and the building commonly known
as 0000 Xxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx ("Building 2"), and the
land on which the Building and Building 2 are located (which land is
more particularly described in Exhibit "B" attached to the Initial
Lease), are collectively referred to herein as the "Project". The
Building, Building 2, and another building commonly known as 0000
Xxxxxxx Xxxxx ("Building 1"), are collectively referred to herein and
commonly known as the San Mateo Centre. In the event Landlord acquires
the fee interest in Building 1 and the land on which Building 1 is
located (the "Building l Land"), then the definition of "Project" shall
be automatically amended to include Building 1 and the Building 1 Land.
Landlord and Tenant further agree and acknowledge that for purposes of
this Lease the total rentable square footage of the Building, Building 1
and Building 2 shall each be 70,000 rentable square feet, and that
neither party shall have the right to remeasure the square footage of
such buildings during the Term of this Lease.
9. Tenant's Proportionate Share. As of the Commencement Date, the Tenant's
Proportionate Share of the Building shall be the aggregate of the
following (excluding any Suite for which the Commencement Date has yet
to occur):
(1) Suite 150 13.63%
(2) Suite 105 0.62%
(3) Suite 106 1.72%
(4) Suite 107 1.04%
(5) Suite 108 3.15%
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Total 20.16%
10. Security Deposit. Section 4 of the Lease is amended to increase the
amount of the Security Deposit from $11,500.00 to $40,213.50.
Concurrently with Tenant's execution and delivery of this Amendment,
Tenant shall deliver cash in the amount of $28,713.50 so that the total
amount of Security Deposit held by Landlord pursuant to Section 4 of the
Lease shall be equal to the total Base Monthly Rental to be paid by
Tenant for the entire Premises during the last month of the Term.
11. Tenant Improvements. Tenant agrees and acknowledges that Landlord
shall provide the Leased Premises in its "as-is" condition with existing
paint and carpet. Tenant may, at its own cost, construct any interior
improvements or alterations within the Premises, subject to Landlord's
prior written approval, which shall not be unreasonably withheld.
Notwithstanding the foregoing, Landlord agrees to reimburse Tenant for
certain interior improvement costs paid by Tenant in connection with the
Expansion Premises to the extent such costs were incurred solely as a
result of the Expansion Premises not being delivered all at once,
subject to the following terms and conditions: (i) Tenant shall supply
Landlord with reasonable evidence showing that such costs would not have
been incurred if the Expansion Premises had been delivered all at once
(e.g., a certification from its architect and/or general contractor
shall be sufficient); (ii) Landlord's total
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reimbursement obligation under this Section 11 shall not exceed ten
thousand dollars ($10,000); and (iii) Landlord receives Tenant's
reimbursement request (including the supporting documentation described
in subparagraph (i) above) on or before December 31, 1997.
12. Real Estate Broker. Tenant warrants for landlord's benefit that it has
not had any dealings with any real estate brokers or salesmen or
incurred any obligations for the payment of real estate brokerage
commissions or finder's fees which would be earned or due and payable by
reason of the execution of this Amendment, except for the 2.5% leasing
commission payable to Xxxxxxx & Wakefield to be paid by Landlord, and
Tenant agrees to indemnify, defend and hold Landlord harmless from any
claims made any party other than Xxxxxxx & Xxxxxxxxx to the extent such
third party's claims arise as a result of or in connection with Tenant's
activities.
13. Notices. Landlord's new address for receipt of notices under the Lease
is as follows:
Landlord: CarrAmerica Realty Corporation
0000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Attn: Vice President - Market Officer
with copy to: CarrAmerica Realty Corporation
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Lease Administrator
14. Landlord's Exculpation. Landlord's (which term includes Landlord's
shareholders, officers, directors, partners, employees, agents and their
representatives) liability to Tenant under this Lease in the event of
default breach or violation by Landlord of any of Landlord's obligations
under this Lease, or for any other reason, shall be limited to
Landlord's ownership interest in the Building or the proceeds of a
public sale of the ownership interest pursuant to the foreclosure of a
judgment against Landlord. Landlord shall not be personally liable or
liable in any event for any deficiency beyond its ownership interest in
the Building.
15. Paragraph 50(A) of Addendum to Initial Lease. Paragraph 50(A) of the
Addendum to the Initial Lease (i.e., Option to Renew) is hereby amended
to delete the reference therein to "95%" and to insert in its place
"100%".
16. Deletion of Paragraph 50(B) in Addendum to Initial Lease, Paragraph
50(B) (i.e., Tenant Improvements) is hereby deleted in its entirety.
17. Exhibit B. The reference to "The Building" in the heading of Exhibit B
to the Initial Lease is hereby deleted and replaced with "The Building 2
and Building 3 Land".
18. Governing Law. This Amendment shall be governed by and be construed
under the laws of the State of California.
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19. Attorneys' Fees. In any arbitration, quasi-judicial or administrative
proceedings or any action in any court of competent jurisdiction,
brought by either party to enforce any covenant or any of such party's
rights or remedies under this covenant or any of such party's rights or
remedies under this Amendment, including any action for declaratory
relief, or any action to collect any payments required under this
Amendment or to quiet title against the other party, the prevailing
party shall be entitled to reasonable attorneys' fees and all costs,
expenses and disbursements in connection with such action, including the
costs of reasonable investigation, preparation and professional or
expert consultation, which sums may be included in any judgment or
decree entered in such action in favor of the prevailing party.
20. Successors. All terms and provisions of this Amendment shall be binding
upon, be enforceable by, and shall inure to the benefit of, the
respective assignees and successors of the parties hereof.
21. Confirmation of Lease. Except as amended by this Amendment, the parties
hereby agree and confirm that the Lease is in full force and effect. In
the event of any conflict between the Initial Lease, as amended by the
Addendum and Addendum II, and this Amendment, the terms of this
Amendment shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
"Tenant"
WIRE NETWORKS, INC.
By: /s/ Xxxxxxx XxXxxxxx
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Name: Xxxxxxx XxXxxxxx
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Its:CEO and President Date: 7/22/97
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"Landlord"
CARRAMERICA REALTY CORPORATION,
a Maryland corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Its: Managing Director Date: 7/25/97
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