FIFTH AMENDMENT TO LEASE
THIS FIFTH AMENDMENT TO LEASE (“ Agreement ”) dated this 7 th day of March, 2005, is made and entered into by and between HOLLIS STREET INVESTORS, L.L.C., a Delaware limited liability company (“ Landlord ”) and LEAPFROG ENTERPRISES, INC., a Delaware corporation (“ Tenant ”).
A. Landlord and Tenant entered into that certain Lease Agreement dated November 14, 2000, for approximately 40,060 rentable square feet of space (the “ Premises ”) located at 6401 Hollis Street, Suite 150, Emeryville, California, as more fully described in the Lease; and
B. The Lease has been amended by a First Amendment to Lease dated April 30, 2001.
C. The Lease has been amended by a Second Amendment to Lease dated February 22, 2002, whereby the Premises were expanded by an additional 30,770 rentable square feet and Tenant’s Pro Rata Share was increased to Fifty-One and Sixty-Two Hundredths Percent (51.62%).
D. The Lease has been amended by a Third Amendment to Lease dated March 27, 2003.
E. The Lease has been amended by a Fourth Amendment to Lease dated March 27, 2003, whereby the Premises were expanded by an additional 31,980 rentable square feet and Tenant’s Pro Rata Share was increased to Seventy-Four and Ninety-Three Hundredths Percent (74.93%).
F. The Lease Agreement, as amended from time to time, is referred to as the “Lease”.
G. The Premises currently contain 102,810 rentable square feet.
H. The current term of the Lease expires on January 31, 2006;
I. Tenant desires to extend the term of the Lease until March 31, 2016 and to amend the terms and conditions of the Lease as set forth in this Agreement.
J. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Lease.
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the parties hereby mutually agree as follows:
1. COMMENCEMENT DATE : The effective date of this Agreement shall be January 1, 2005 (the “ Effective Commencement Date ”).
2. TERMINATION DATE: The term of the Lease shall be extended until March 31, 2016.
3. PERMITTED USES : Permitted uses of the Premises shall include general office, customer training and support incidental thereto and prototype design workshops and functions related thereto.
4. RENT: As of the Effective Commencement Date, Section 4 of the Lease is amended to reflect that the Base Rent for the Premises shall be as set forth below, payable in equal monthly installments, in advance, on the first (1 st ) business day of each and every month of the Term. Rent adjustments shall occur on the anniversary dates of the Effective Commencement Date.
The above-referenced rent figures include the costs of all parking spaces. The Base Rent shall remain payable in equal monthly installments, in advance, on the first (1 st ) business day of each and every month of the Term.
5. PARKING :
(a) Commencing on the Effective Commencement Date, Tenant shall have the right to use four (4) spaces per 1,000 rentable square feet of leased area (411 parking stalls as of the Effective Commencement Date). In order to achieve the above-stated parking ratio, some parking may be tandem parking requiring an attendant. Tenant agrees that in that event the cost of the parking attendant shall be an Operating Expense and Tenant will be liable for its pro rata share.
(b) Notwithstanding the above, Tenant shall continue to have the right to use unlimited parking spaces beyond Tenant’s allocation (the “ Additional Parking Spaces ”) until such time as all parking spaces in the Project have been allocated to tenants on a four (4) spaces per 1,000 rentable square feet of leased area basis; provided that Landlord may notify Tenant from time to time as Landlord leases additional space in the Project of the number of Additional Parking Spaces that Tenant must relinquish so that Landlord can provide parking spaces for other tenants in the Project (which parking for other tenants shall not exceed four (4) spaces per 1,000 rentable square feet of leased area) without implementing tandem parking. After Tenant has relinquished its right to use all of the Additional Parking Spaces, Landlord may need to implement tandem parking for all tenants.
6. BASE BUILDING ALLOWANCE :
a. Landlord shall provide Tenant with an allowance of Five Hundred Thousand and No/100 Dollars ($500,000.00) (“ Landlord’s Base Building Allowance ”). Using the Landlord’s Base Building Allowance, Landlord shall complete certain base building repairs and improvements to the Building as mutually agreed by Landlord and Tenant (“ Landlord’s Building Improvements ”). Upon the parties agreement as to the Landlord Building Improvements, a list of such improvements shall be attached to this Amendment as Exhibit A, provided that failure to do so shall not relieve Landlord of its obligation to make the agreed-upon Landlord’s Building Improvements.
b. The Landlord’s Base Building Allowance may be used for one or more of the following purposes, at Tenant’s election: (i) Landlord’s Building Improvements; (ii) cosmetic or other improvements to the Premises (“ Tenant Improvements ”); or (iii) the cost of the back-up generator described in Section 6(c) below. If some or all of the Landlord’s Base Building Allowance is applied toward the cost of Landlord’s Building Improvements which are Landlord’s responsibility under Section 10(a) of the Lease, that portion of Landlord’s Base Building Allowance applied to such costs shall be computed in accordance with Section 5 of the Lease based on Tenant’s Percentage Share of Operating Expenses and not on the full cost of such repair or improvement. (By way of example, if Landlord’s Base Building Allowance is used to repair the roof at the cost of $100,000, the cost allocated toward the Landlord’s Base Building Allowance would be $74,930, based on Tenant’s Percentage Share of Operating Expenses of 74.93%.) If some or all of Landlord’s Base Building Allowance is applied toward Tenant Improvements, such amount will be deemed a “Tenant Improvement Allowance” for purposes of calculating the termination fee with respect to Tenant’s termination right described in Paragraph 10 below. Landlord’s Base Building Allowance allocated toward Landlord’s Building Improvements or the cost of th