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EXHIBIT 10.13
FIRST AMENDMENT TO LEASE
I. PARTIES AND DATE.
This First Amendment to Lease (the "First Amendment") dated January 21,
1998, is by and between THE IRVINE COMPANY ("Landlord"), and WONDERWARE
CORPORATION, a Delaware corporation, as successor by merger to Wonderware
Software Development Corporation, a California corporation ("Tenant").
II. RECITALS.
On April 23, 1993, Landlord and Tenant entered into that certain lease
("Lease") for space in a building located at 000 Xxxxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxx ("Premises").
Landlord and Tenant each desire to modify the Lease to extend the Lease
Term, adjust the Basic Rent, and make such other modifications as are set forth
in "III. MODIFICATIONS" next below.
III. MODIFICATIONS.
A. Basic Lease Provisions. The Basic Lease Provisions of the Lease
are hereby amended as follows:
1. Item 5 is hereby deleted in its entirety and the following shall
be substituted in lieu thereof:
"5. Lease Term: The Term of this Lease shall expire at midnight
on August 31, 2000."
2. Effective October 1, 1998, Item 6 shall be deleted in its
entirety and the following shall be substituted in lieu thereof:
"Basic Rent: Thirty-Nine Thousand Five Hundred Four
Dollars ($39,504.00) per month, based on $1.25 per rentable
square foot."
B. Right to Extend the Lease. Paragraph 3 of the Lease Addendum entitled
"Right to Extend the Lease", shall be deleted in its entirety and the following
shall be substituted in lieu thereof:
"3. Section 3.1(b) Right To Extend The Lease. Provided that Tenant
is not in monetary default or material non-monetary default under any
provision of this Lease beyond the applicable cure period, either at the
time of exercise of the extension right granted herein or at the time of
the commencement of such extension, and provided further that Tenant is
occupying the entire Premises and has not assigned or sublet any of its
interest in this Lease, Tenant may extend the Term of this Lease for one
(1) period of eighteen (18) months. Tenant shall exercise its right to
extend the Term by and only by delivering to Landlord, no earlier than
September 1,
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1999, and no later than December 31, 1999, Tenant's irrevocable written
notice of its commitment to extend (the "Commitment Notice"). The Basic
Rent payable under the Lease during any extension of the Term shall be at
100% of the fair market rental for the Premises. In the event that the
parties are not able to agree on the fair market rental within one hundred
twenty (120) days prior to the expiration date of the Term, then either
party may elect, by written notice to the other party, to cause said
rental, including subsequent adjustments, to be determined by appraisal as
follows.
Within ten (10) days following receipt of such appraisal election, the
parties shall attempt to agree on an appraiser to determine the fair market
rental. If the parties are unable to agree in that time, then each party
shall designate an appraiser within ten (10) days thereafter. Should either
party fail to so designate an appraiser within that time, then the
appraiser designated by the other party shall determine the fair rental
value. Should each of the parties timely designate an appraiser, then two
appraisers so designated shall appoint a third appraiser who shall, acting
alone, determine the fair rental value of the Premises. Any appraiser
designated hereunder shall have an M.A.I. certification with not less than
five (5) years experience in the valuation of commercial industrial
buildings in the Irvine Spectrum area of Orange County, California.
Within thirty (30) days following the selection of the appraiser, such
appraiser shall determine the fair market rental value of the Premises
based on an 18-month term. In determining such value, the appraiser shall
consider rental comparables for the other comparable buildings in the
Project, and shall consider rental rates for other comparable buildings in
the Irvine Spectrum area with appropriate adjustments for differences in
location and quality of project. The fees of the appraiser(s) shall be
shared equally by both parties.
Within twenty (20) days after the determination of the fair market
rental, Landlord shall prepare a reasonably appropriate amendment to this
Lease for the extension period and Tenant shall execute and return same to
Landlord within ten (10) days. Should the fair market rental not be
established by the commencement of the extension period, then Tenant shall
continue paying rent at the rate in effect during the last month of the
initial Term, and a lump sum adjustment shall be made promptly upon the
determination of such new rental.
If Tenant fails to timely comply with any of the provisions of this
paragraph, Tenant's right to extend the Term shall be extinguished and the
Lease shall automatically terminate as of the expiration date of the Term,
without any extension and without any liability to Landlord. Any attempt to
assign or transfer any right or interest created by this paragraph shall be
void from its inception. Tenant shall have no other right to extend the
Term beyond the single eighteen (18) month extension created by this
paragraph. Unless agreed to in a writing signed by Landlord and Tenant, any
extension of the Term, whether created by an amendment to this Lease or by
a holdover of the Premises by Tenant, or otherwise, shall be deemed a part
of, and not in addition to, any duly exercised extension period permitted
by this paragraph.
C. Option to Cancel. Paragraph 4 of the Lease Addendum, entitled "Section
3.1(c) Option To Cancel" is hereby deleted in its entirety, and nothing shall be
substituted in lieu thereof.
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D. Tenant Improvements. Landlord agrees to provide to Tenant an
allowance of up to Sixty Thousand Forty-Six Dollars ($60,046.00) ("Landlord's
Contribution") for tenant improvement work in the Premises ("Tenant
Improvements"). Any additional cost shall be borne solely by Tenant. Tenant
shall utilize the Landlord's Contribution and submit the invoices therefor (in
accordance with the provisions below) prior to June 30, 1998. Any unused
portion of the Landlord's Contribution shall thereafter be terminated.
Tenant shall be permitted to use its own contractor (subject to
Landlord's prior reasonable approval) in constructing the Tenant Improvements,
which construction shall be undertaken and prosecuted in accordance with
Article VII, Section 7.3 of the Lease. Tenant shall request payment for the
cost of the Tenant Improvements by delivering to Landlord a copy of the
invoices, lien waivers (in the form prescribed by the California Civil Code),
and all other pertinent backup, which invoices shall not exceed Landlord's
Contribution.
It is understood that the Tenant Improvements shall be done during
Tenant's occupancy of the Premises. Therefore Tenant agrees to assume any risk
of injury, loss or damage which may result from such construction; and shall
indemnify, defend and, protect, save and hold harmless Landlord from and
against any and all claims, liabilities, costs and expense arising from such
construction, as more particularly provided in Section 10.3 of the Lease.
Tenant further agrees that no rental abatement shall result while the Tenant
Improvements are being completed in the Premises.
IV. GENERAL.
A. Effect of Amendments. The Lease shall remain unmodified and in full
force and effect, except to the extent that it is modified by this Amendment.
B. Entire Agreement. This Amendment embodies the entire understanding
between Landlord and Tenant with respect to the modifications set forth in "III.
MODIFICATIONS" above and can be changed only by a writing signed by Landlord and
Tenant.
C. Counterparts. If this Amendment is executed in counterparts, each is
hereby declared to be an original; all, however, shall constitute but one and
the same amendment. In any action or proceeding, any photographic, photostatic,
or other copy of this Amendment may be introduced into evidence without
foundation.
D. Define Terms. All words commencing with initial capital letters in
this Amendment and defined in the Lease shall have the same meaning in this
Amendment as in the Lease, unless they are otherwise defined in this Amendment.
E. Corporate and Partnership Authority. If Tenant is a corporation or
partnership, or is comprised of either or both of them, each individual
executing this Amendment for the corporation or partnership represents that he
or she is duly authorized to execute and deliver this Amendment on behalf of
the corporation or partnership and that this Amendment is binding upon the
corporation or partnership in accordance with its terms.
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F. Attorneys' Fees. The provisions of the Lease respecting payment of
attorneys' fees shall also apply to this Amendment.
V. EXECUTION.
Landlord and Tenant executed this Amendment on the date as set forth in
"I. PARTIES AND DATE." above.
LANDLORD: TENANT:
THE IRVINE COMPANY [SEAL OF WONDERWARE CORPORATION,
LEGAL APPROVAL] a Delaware corporation
By /s/ Xxxxxxxx X. Xxxxxx By /s/ Xxx Xxxxxx
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Xxxxxxxx X. Xxxxxx, President Name: Xxx Xxxxxx
Irvine Industrial Company, a division ------------
of The Irvine Company Title: President
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By /s/ Xxxx X. Xxx By /s/ Xxx Xxxxxxxx
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Xxxx X. Xxx, Name: Xxx Xxxxxxxx
Assistant Secretary ------------
Title: CFO
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