EXHIBIT 10.4
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE is made this 6th day of November, 2001, between
4065 Associates L.P., a California limited partnership ("Landlord"), and Memry
Corporation, a Delaware corporation ("Tenant") (Landlord and Tenant together,
the "Parties").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a Lease entitled "Business
Park Lease" ("Lease") dated August 27, 2001, for certain demised premises
("Premises") located at 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx, as more
particularly described in said Lease; and
WHEREAS, Tenant initially desired to lease the Premises for a one (1)
year term and during the course of negotiations of the Lease Tenant requested
and Landlord agreed that the demised term of the Lease would be extended for an
additional six (6) months such that the demised term of the Lease is for a
period of eighteen (18) months commencing October 1, 2001, and expiring on March
31, 2003; and
WHEREAS, Tenant now desires to extend the demised term of the Lease for
an additional period of eighteen (18) months such that the demised term of the
Lease will be for a total of three (3) years, and Landlord is willing to extend
the demised term of the Lease pursuant to the terms hereof; and
WHEREAS, at the commencement of negotiations of the terms and
conditions of the Lease Landlord agreed to limit Tenant's obligation to
reimburse Landlord for certain additional rent items and made certain other
revisions to the Lease because the demised term of the Lease was contemplated to
be for a period of one (1) year; Landlord agreed to keep such limitations and
revisions in the Lease when the demised term was subsequently extended to
eighteen months; the Parties now agree that such limitations and revisions will
be inappropriate for a three year term and desire to revise the Lease, as more
particularly set out hereinbelow.
NOW, THEREFORE, in consideration of the covenants and conditions
contained herein, Landlord and Tenant agree to amend the Lease as follows:
1. The demised term of the Lease is extended for a period of eighteen
(18) months commencing April 1, 2003, and ending September 30, 2004.
2. The annual base rent provided for in Section 2.1. of the Lease shall
be increased effective April 1, 2003, by a sum determined by applying the
formula set forth below, and such base rent as established (by adding the
increase to the then existing base rent) shall be the base rent for the
remaining term of the Lease (i.e., from April 1, 2003, to and including
September 30, 2004).
The applicable rental increase shall be the amount determined by
multiplying the annual base rent payable on March 31, 2003, by the net
percentage increase in the previous eighteen (18) month period in the Monthly
Consumer Price Index and, if the net change is zero (0) or negative (less than
zero), then the applicable rental increase shall be $0. For purposes of
illustration only, if the Monthly Consumer Price Index shall increase in the
pertinent period from 165 to 170, the percentage of increase is 5/165x100 or
3.03 and the factor to be used in the above formula shall be 3.03%.
Pertinent Period. For the purpose of the computation of the adjustment
effective April 1, 2003, the comparison shall be between the Monthly Consumer
Price Index last issued prior to October 1, 2001, and the Monthly Consumer Price
Index last issued prior to April 1, 2003.
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"Monthly Consumer Price Index" means the index generally known as the
Consumer Price Index prepared and issued by the Bureau of Labor Statistics of
the Department of Labor of the United States of America, measuring consumer
prices throughout the San Francisco Bay Area generally (i.e., the index
generally known as the "Consumer Price Index for Urban Wage Earners and Clerical
Workers San Francisco-Oakland-San Xxxx All Items (CPI-W)" 1982-84=100). If said
bureau should at any time or from time to time change the base period for said
index, then Consumer Price Index needed for the purpose of this subsection shall
be appropriately converted in accordance with good statistical methods to an
index comparable (except for changes mentioned in the following sentence) to the
present index issued by said bureau based upon the present base period. Subject
to the foregoing provisions of this subsection, said index for any period shall
be such as may as of the particular time be prepared and issued by said bureau
(or if said bureau should cease to issue such index and some other agency shall
perform the same function then of such agency) and no changes in the methods or
practices of said bureau shall affect the intentions of this subsection.
3. Effective October 1, 2001, Section 11.3. of the Lease shall be
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deleted in its entirety, and the following Section 11.3. shall be inserted
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in-lieu thereof:
"Section 11.3. Landlord shall provide the following services
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and Tenant shall, in addition to all other payments required to be made
under other provisions of this Lease, on demand reimburse Landlord for
Landlord's out-of-pocket costs of: (i) maintaining, repairing and
replacing the roof; (ii) painting, maintaining and repairing the
exterior of the building; (iii) maintenance and repair of the trash
enclosure utilized in connection with the building; (vi) maintenance,
repair and replacement of the glass on the exterior of the building and
(vii) any other maintenance, repair and replacement other than that
which Landlord is required to perform at Landlord's expense per Section
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11.1. Tenant shall also, on demand, reimburse Landlord for Landlord's
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out-of-pocket costs of maintaining, repairing and replacing the heating
and air conditioning equipment serving the demised premises, whether
furnished by Landlord or Tenant (except any work that is described in
Section 3.2). Landlord's said costs as used in this Section 11.3. shall
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include all costs and expenses of every kind or nature incurred by
Landlord in the performance of such maintenance, repair or replacements
and Landlord's determination of the amount of said costs and expenses
will be final absent manifest error. Upon Tenant's written request,
Landlord shall provide Tenant with reasonable evidence of such costs
and expenses.
Tenant's obligation to reimburse Landlord for the cost of any
replacement required to be made by Landlord pursuant to this Section
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11.3. during the demised term and required under good accounting
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practice to be amortized, shall be limited to a proportionate share
(not greater than 100%) of such replacement costs (the "Reimbursement
Amounts") calculated as follows:
(a) if such costs are incurred during the initial
demised term of this Lease, by multiplying such replacement costs by a
fraction, the numerator of which is the number of days in the demised
term and the denominator of which is the number of days in the
estimated useful life of the replacement; and
(b) if Landlord and Tenant agree to extend the term
of this Lease beyond September 30, 2004, and if such costs are incurred
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during any such extended term of this Lease, by multiplying such
replacement costs by a fraction, the numerator of which is the number
of days in the demised term of this Lease (including any extended term)
and the denominator of which is the number of days in the estimated
useful life of the replacement.
If a Reimbursement Amount has been determined under subsection
(a) above with respect to any replacement costs, and Landlord and
Tenant subsequently agree to extend the term of this Lease beyond
September 30, 2004, or if Tenant holds over after September 30, 2004,
Tenant shall also be responsible for another Reimbursement Amount with
respect to such replacement costs determined by multiplying such
replacement costs by a fraction, the numerator of which is the number
of days in the extended term of this Lease and the denominator of which
is the number of days in the estimated useful life of the replacement.
The foregoing limitation shall not apply to equipment
furnished by Tenant and maintained by Landlord. Tenant shall pay any
Reimbursement Amounts, as additional rent, monthly on a straight-line
basis amortized over the remaining demised term of the Lease (including
any extended or holdover term) using an interest rate equal to ten
percent (10%) per annum.
At Tenant's election, Tenant may pay any said Reimbursement
Amount in a lump sum upon billing by Landlord and accrue no further
interest with regard to such paid Reimbursement Amount.
The limitations on Tenant's liability for expenses hereunder
shall in no event apply to any costs for repairs or replacements
occasioned by (x) Tenant's negligent acts or omissions or those of its
employees, contractors, agents, invitees or servants, or (y) the
particular nature of Tenant's business, all of which costs shall be
borne solely by Tenant.
For purposes of this Section 11.3., the term `initial demised
term' shall be the three year period from October 1, 2001, to and
including September 30, 2004," and the term `replacements' shall be
replacements which are reasonably necessary for the maintenance and/or
preservation of the property.
4. Effective October 1, 2001, Section 18.3. of the Lease shall
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be deleted in its entirety, and the following Section 18.3. shall be inserted
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in-lieu thereof:
"Section 18.3. Tenant agrees during the demised term to pay to
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Landlord an annual charge which shall be Landlord's actual
out-of-pocket costs of operating, maintaining and/or replacing all of
the areas and facilities mentioned in this Article. The annual charge
shall be an estimate computed on the basis of periods of twelve (12)
consecutive calendar months, commencing and ending on such dates as may
be designated by Landlord, and shall be paid in monthly installments on
the first day of each calendar month in the amount estimated by
Landlord. Within ninety (90) days after the end of each such annual
period, Landlord will determine (and furnish to Tenant a statement
showing in reasonable detail) the actual annual charge for such period
and the amounts so estimated and paid during such period shall be
adjusted within such ninety (90) days (including adjustments on a
prorata basis of any partial such period at either end of the demised
term) and one party shall pay to the other on demand whatever amount is
necessary to effectuate such adjustment.
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Landlord's said costs shall consist of and include all costs
and expenses of every kind or nature incurred by Landlord in the
operation, maintenance and/or replacement of all of the areas,
facilities and improvements mentioned in this Article determined in
accordance with good accounting practice by an accountant employed by
Landlord. The determination of such accountant shall be conclusive.
Without otherwise limiting the generality of the foregoing, there shall
be included in such costs public liability and property damage
insurance, landscape maintenance, maintenance of utilities, water,
cleaning of areas, facilities and improvements, operation of lighting,
common area taxes and assessments determined in the same manner as
taxes and assessments on the demised premises, policing and sweeping of
parking areas, supervising with attendants, repairs, replacements and
maintenance, and an amount equal to ten percent (10%) of the total of
all of the above for administration of the Parking and Accommodation
Areas.
Tenant's obligation to reimburse Landlord for the cost of any
replacement required to be made by Landlord pursuant to this Section
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18.3. during the demised term and required under good accounting
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practice to be amortized, shall be limited to a proportionate share
(not greater than 100%) of such replacement costs (the "Reimbursement
Amounts") calculated as follows:
(a) if such costs are incurred during the initial
demised term of this Lease, by multiplying such replacement costs by a
fraction, the numerator of which is the number of days in the demised
term and the denominator of which is the number of days in the
estimated useful life of the replacement; and
(b) if Landlord and Tenant agree to extend the term
of this Lease beyond September 30, 2004, and if such costs are incurred
during any such extended term of this Lease, by multiplying such
replacement costs by a fraction, the numerator of which is the number
of days in the demised term of this Lease (including any extended term)
and the denominator of which is the number of days in the estimated
useful life of the replacement.
If a Reimbursement Amount has been determined under
subsection (a) above with respect to any replacement costs, and
Landlord and Tenant subsequently agree to extend the term of this Lease
beyond September 30, 2004, or if Tenant holds over after September 30,
2004, Tenant shall also be responsible for another Reimbursement Amount
with respect to such replacement costs determined by multiplying such
replacement costs by a fraction, the numerator of which is the number
of days in the extended term of this Lease and the denominator of which
is the number of days in the estimated useful life of the replacement.
The foregoing limitation shall not apply to equipment
furnished by Tenant and maintained by Landlord. Tenant shall pay any
Reimbursement Amounts, as additional rent, monthly on a straight-line
basis amortized over the remaining demised term of the Lease (including
any extended or holdover term) using an interest rate equal to ten
percent (10%) per annum.
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At Tenant's election, Tenant may pay any said Reimbursement
Amount in a lump sum upon billing by Landlord and accrue no further
interest with regard to such paid Reimbursement Amount.
The limitations on Tenant's liability for expenses hereunder
shall in no event apply to any costs for repairs or replacements
occasioned by (x) Tenant's negligent acts or omissions or those of its
employees, contractors, agents, invitees or servants, or (y) the
particular nature of Tenant's business, all of which costs shall be
borne solely by Tenant.
For purposes of this Section 18.3., the term `initial demised
term' shall be the three year period from October 1, 2001, to and
including September 30, 2004," and the term `replacements' shall be
replacements which are reasonably necessary for the maintenance and/or
preservation of the property.
5. It is understood and agreed that all other terms and conditions of
the Lease shall be and remain the same.
IN WITNESS WHEREOF, the parties have executed this Amendment to Lease
as of the date first hereinabove written.
TENANT: LANDLORD:
MEMRY CORPORATION, 4065 ASSOCIATES, L.P.,
a Delaware corporation a California limited partnership
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Title: Senior Vice President, Xxxxxxx X. Xxxxxx, Trustee
Finance and Administration General Partner
By: /s/ Xxxxxx Xxxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Title: Vice President and General Xxxxxx X. Xxxxxxx, Trustee
Manager - Eastern Operations General Partner
AMENDMENT TO AGREEMENT
THIS AMENDMENT TO AGREEMENT is made this 6th day of November, 2001, by
and between 4065 Associates L.P., a California limited partnership ("Landlord"),
and Memry Corporation, a Delaware corporation ("Memry") (Landlord and Memry,
each a "Party", and together, the "Parties").
WITNESSETH:
WHEREAS, Xxxxxxx X. Xxxxxx, ("Xxxxxx") as landlord, and Raychem
Corporation, a Delaware corporation ("Raychem") as tenant, entered into a lease
dated as of April 25, 1983, for the property located at 0000 Xxxxxxxx Xxxxxx in
Menlo Park, California ("Property"), which lease was amended by the First,
Second, Third and Fourth Amendments to Lease, dated as of May 8, 1989, June 10,
1992, June 7, 1995, and September 21, 1998, respectively (as so amended, the
"Old Lease"); Landlord is the successor-in-interest to Xxxxxx under the Old
Lease;
WHEREAS, subsequent to entering into the Old Lease, and in connection
with entering into that certain Asset Purchase Agreement by and between Raychem
and Memry, dated as of May 10, 1996 ("Purchase Agreement"), Raychem, as
sublessor, subleased the entire premises demised under the Old Lease to Memry,
as sublessee,
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pursuant to that certain sublease dated as of June 28, 1996, as amended by the
Amendment to Sublease dated as of March 26, 1998 (as amended, the "Sublease");
WHEREAS, the Old Lease and Sublease expired on September 30, 2001;
WHEREAS, the Parties entered into a lease for the Property ("New
Lease") dated August 27, 2001, for a demised term of eighteen (18) months
commencing October 1, 2001, and expiring on March 31, 2003;
WHEREAS, Landlord and Tenant entered into an Agreement To Defer Certain
Work ("Agreement") dated August 27, 2001, wherein the Parties agreed that the
HVAC Cleaning and Repairs and the Exhibit C Work (each as defined and more
particularly described in the Agreement) would be deferred until the termination
of the demised term of the New Lease;
WHEREAS, simultaneous herewith the Parties are entering into an
Amendment to Lease to extend the demised term of the New Lease to expire
September 30, 2004;
WHEREAS, the Parties agree that it is not feasible to defer the Repairs
for a period of three (3) years and now desire that the Repairs be performed in
phases at the commencement of the three year term, as more particularly set out
hereinbelow.
NOW, THEREFORE, in consideration of the covenants and conditions
contained herein, Landlord and Tenant agree to amend the Agreement as follows:
1. Effective as of the date first hereinabove written, all references
to the timing of the performance and completion of the Repairs shall be amended
as follows: a portion of the Repairs (i.e., the exterior painting and Phase I of
the parking lot repairs) shall be performed and completed by Landlord within
ninety (90) days after execution and delivery of this Amendment, subject to
force majeure. Phase II of the parking lot repairs shall be performed by
Landlord prior to June 30, 2002, subject to force majeure.
2. Effective as of the date first hereinabove written, the Parties
agree that Memry shall reimburse Landlord for the costs of completing the
Repairs within thirty (30) days after completion by Landlord of each portion or
phase of the Repairs in a total amount not to exceed $56,375.00 ($51,920.00 for
Phase I and $4,455.00 for Phase II) for parking lot repairs and $5,995.00 for
painting the exterior of the building. The above amounts are determined from the
respective proposals and contracts for such work (attached hereto as Exhibits A
and B), plus a 10% contingency fee for possible overruns.
3. Memry shall complete the HVAC Cleaning and the Exhibit C Work on or
before the last day of the demised term of the New Lease (as such demised term
is extended by the Amendment to Lease).
4. It is understood and agreed that all other terms and conditions of
the Agreement shall be and remain the same.
5. Counterparts. This Amendment to Agreement may be executed in
counterparts, each counterpart will be deemed an original and all counterparts
together will constitute a single agreement.
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6. Governing Law. This Amendment to Agreement will be governed by the
laws of the State of California without regard to its conflict of laws
provisions.
IN WITNESS WHEREOF, the Parties have executed this Amendment to
Agreement.
MEMRY CORPORATION 4065 XXXXXXXX ASSOCIATES L.P.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx, Trustee
Title: Senior Vice President, General Partner
Finance and Administration
By: /s/ Xxxxxx Xxxxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx Xxxxxxxxxxx Xxxxxx X. Xxxxxxx, Trustee
Title: Vice President and General General Partner
Manager - Eastern Operations
Exhibit A
[Quote for Parking Lot Repairs]
Exhibit B
[Quote for Exterior Building Painting]
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