EXHIBIT 10.11
03/25/98 JBC
04/02/98 JBC
04/17/98 JBC
04/20/98 JBC
04/26/98 JBC
OFFICE LEASE
SCOTTSDALE NORTHSIGHT
THIS INDENTURE OF LEASE (the "Lease"), dated as of the 30th day of
April, 1998, by and between OPUS WEST CORPORATION, a Minnesota corporation,
owner of the Office Complex (as hereinafter defined), hereinafter referred to as
"Lessor", and JDA SOFTWARE GROUP, INC., a Delaware corporation, hereinafter
referred to as "Lessee".
WITNESSETH:
That Lessor, in consideration of the rents and covenants hereinafter
set forth, does hereby lease and let unto Lessee, and Lessee does hereby hire
and take from Lessor, that certain space shown and designated on the site plan
attached hereto and made a part hereof as Exhibit A, which space shall consist
of not less than 95,000 rentable square feet (the final area to be determined
pursuant to Article XXI, below) and shall be comprised of the entire rentable
areas on the second (2nd) and third (3rd) floors (at a minimum) of the Office
Complex containing approximately 136,000 rentable square feet, to be constructed
by Lessor west and contiguous to 00xx Xxxxxx and south of Raintree Drive,
Scottsdale, Arizona 852______, and, subject to the naming rights of Lessee
provided herein, to be known as Scottsdale Northsight. The aforesaid space
leased and let unto Lessee is hereinafter referred to as the "Premises"; the
land (including all easement areas appurtenant thereto) upon which the building
("Building") of which the Premises are a part is hereinafter referred to as the
"Property"; and the Property and all buildings and improvements and personal
property of Lessor used in connection with the operation or maintenance thereof
located therein and thereon and the appurtenant parking facilities, if any, are
hereinafter called the "Office Complex".
Lessee hereby accepts this Lease and the Premises upon the covenants
and conditions set forth herein and subject to any encumbrances (but subject
also to the non-disturbance covenants contemplated in Article XV, below),
covenants, conditions, restrictions and other matters of record and all
applicable zoning, municipal, county, state and federal laws, ordinances and
regulations governing and regulating the use of the Premises.
TO HAVE AND TO HOLD THE SAME PREMISES, without any liability or
obligation on the part of Lessor to make any alterations, improvements or
repairs of any kind on or about the Premises, except as expressly provided
herein, for a term of ten (10) years, commencing on the first (1st) day of
April, 1999 (as such date may be extended due to force majeure or Lessee's
Delays, and herein referred to as the "Target Commencement Date"), and ending on
the thirty-first (31st) day of March, 2009, unless sooner terminated, in the
manner provided hereinafter, to be occupied and used by Lessee for general
office purposes and for no other purpose, subject to the covenants and
agreements hereinafter contained. The commencement of the term of this Lease
shall be the later of (i) fifteen (15) days after the delivery of possession of
Premises to Lessee, with the Tenant Improvements substantially completed or (ii)
the delivery to Lessee of an occupancy permit for the Premises. Lessee shall not
be required to accept delivery of possession prior to March 15, 1999. The
commencement of operations (and not mere fixturization) by Lessee in any portion
of the Premises shall be deemed to be acceptance of delivery of the Premises.
ARTICLE I. BASE RENT: In consideration of the leasing aforesaid, Lessee agrees
to pay to Lessor, at c/o Opus West Management Corporation, 0000 Xxxx Xxxxxxxxx,
Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, or at such other place as Lessor from
time to time may designate in writing, an annual rental equal to the product of
the rentable area of the Premises multiplied by the rental rate for the
applicable portion of the term of this Lease, as hereinafter set forth, which
annual rental may sometimes hereinafter be referred to as the "Base Rent",
payable monthly, in advance, in equal monthly installments, commencing on the
first day of the term and continuing on the first day of each and every month
thereafter for the next succeeding months during the balance of the term:
Applicable Portion Annual Rental Rate Per
of Term Rentable Square Foot
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Months 1 through 60 $13.40
Months 61 through 120 15.41
If the term commences on a date other than the first day of a calendar month or
ends on a date other than the last day of a calendar month, monthly rent for the
first month of the term or the last month of the term, as the case may be, shall
be prorated based upon the ratio that the number of days in the term within such
month bears to the total number of days in such month.
The amounts set forth above as the Annual Rental Rate per Rentable
Square Foot are subject to reduction, based upon any savings realized in the
"Total Project Costs", pursuant to Exhibit "E" attached hereto. For this
purpose, "Total Project Costs" shall include all costs incurred in the
acquisition, construction, development, and completion of the Office Complex,
including, without limitation, land acquisition and related costs, permits, use
fees, design, survey, engineering, environmental and soils consultants, legal,
financing and interest expenses, commissions, labor, materials, real estate and
other taxes, and allowances of three percent (3%) for a development fee, five
percent (5%) for overhead and profit and five percent (5%) for general
conditions. No other general contractor employed to construct this Office
Complex shall be entitled to charge such fees (although subcontractors and
suppliers may charge reasonable general conditions and overhead and profit
fees). (Notwithstanding the foregoing, to the extent the water use fees exceed
$1.00 per gross square foot based on the area of the Building, and to the extent
such excess results in the actual amount of the "Total Project Costs" (set forth
on Exhibit "E" attached hereto) exceeding the budget "Total Project Costs"
(before the Tenant Improvement Allowance), then such excess shall reduce the
Tenant Improvement Allowance otherwise available to Lessee under this Lease.)
Lessor shall be responsible to supply to the Premises the 2' x 4' layin
parabolic light fixtures, the 2' x 2' layin ceiling tile and the necessary
ceiling grid. To the extent the costs of supplying the materials listed in the
preceding sentence results in the actual amount of the "Total Project Costs"
(set forth on Exhibit "E" attached hereto) exceeding the budget "Total Project
Costs" (before the Tenant Improvement Allowance and the water use fees
referenced above), then such excess shall reduce the Tenant Improvement
Allowance otherwise available to Lessee under this Lease. Accordingly, within
sixty (60) days after the Commencement Date, Lessor shall provide to Lessee a
reconciliation of the Total Project Costs, and a computation of the Base Rent
(with reference to the 10.42% return) and including the 5% adjustment to the
land acquisition (which adjustment shall be subject to reduction in inverse
proportion to the increase in the initial area of the Premises, as designated by
Lessee herein), as illustrated in Exhibit "E" . In the event the resulting
"rent" is less than $13.40, then the Base Rent for months 1 through 60 shall be
such "rent", and the Base Rent for months 61 through 120 shall be 115% of the
reduced Base Rent amount. All work which is a component of the Total Project
Costs will be performed on an "open book" basis with Lessee (subject to
confidentiality covenants of Article XXV)
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having access to all cost accounting records and books with respect to such work
upon reasonable advance notice to Lessee.
ARTICLE II. ADDITIONAL RENT: In addition to the Base Rent payable by Lessee
under the provisions of Article I hereof, Lessee shall pay to Lessor "Additional
Rent" as hereinafter provided for in this Article II. All sums under this
Article II and all other sums and charges required to be paid by Lessee under
this Lease (except Base Rent), however denoted, shall be deemed to be
"Additional Rent". If any such amounts or charges are not paid at the time
provided in this Lease, they shall nevertheless be collectible as Additional
Rent with the next installment of Base Rent falling due.
For purposes of this Article II, the parties hereto agree upon the
following Definitions:
A. The term "Lease Year" shall mean each of those calendar years
commencing with and including the year during which the term
of this Lease commences, and ending with the calendar year
during which the term of this Lease (including any extensions
or renewals) terminates.
B. The term "Real Estate Taxes" shall mean and include all
personal property taxes of Lessor relating to Lessor's
personal property located in the Office Complex and used or
useful in connection with the operation and maintenance
thereof, real estate taxes and installments of special
assessments, including interest thereon, relating to the
Property and the Office Complex, and all other governmental
charges, general and special, ordinary and extraordinary,
foreseen as well as unforeseen, of any kind and nature
whatsoever, or other tax, however described, which is levied
or assessed by the United States of America or the state in
which the Office Complex is located or any political
subdivision thereof, against Lessor or all or any part of the
Office Complex as a result of Lessor's ownership of the
Property or the Office Complex, and payable during the
respective Lease Year. It shall not include any net income
tax, estate tax, inheritance tax, excess profit taxes,
franchise taxes, gift taxes, capital stock taxes, other taxes
applied or measured by Lessor's net income, and any items
included as Operating Expenses (defined below).
C. The term "Operating Expenses" shall mean and include all
expenses incurred with respect to the maintenance and
operation of the Property and the Office Complex as determined
by Lessor's accountant in accordance with generally accepted
accounting principles consistently followed, including, but
not limited to property, casualty or liability insurance (and
such other types of insurance typically procured by landlords
for office projects comparable to the Office Complex) premiums
(including insurance premiums for rent insurance), maintenance
and repair costs, steam, electricity, water, sewer, gas and
other utility charges, fuel, lighting (including the tubes,
ballasts and starters of fluorescent parabolic lights), window
washing, janitorial services, trash and rubbish removal, wages
payable to employees of Lessor whose duties are connected with
the operation and maintenance (and specifically excluding
administration) of the Property and the Office Complex (but
only for the portion of their time allocable to work related
to the Office Complex (and specifically excluding
administration) ), amounts paid to contractors or
subcontractors for work or services performed in connection
with the operation and maintenance of the Property and the
Office Complex, all costs of uniforms, supplies and materials
used in connection with the operation and maintenance of the
Property and the Office Complex, all payroll taxes,
unemployment insurance costs, vacation allowances and the
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cost of providing disability insurance or benefits, pensions,
profit sharing benefits, hospitalization, retirement or other
so-called fringe benefits, and any other expense imposed on
Lessor or its contractors or subcontractors, pursuant to law
or pursuant to any collective bargaining agreement covering
such employees, all services, supplies, repairs, replacements
or other expenses for maintaining and operating the Office
Complex, reasonable attorneys' fees and costs in connection
with appeal or contest of real estate or other taxes or
levies, and such other expenses as may be ordinarily incurred
in the operation and maintenance of an office complex and not
specifically set forth herein, including reasonable management
fees (which, as charged to Lessee, shall not exceed two and
one-half percent (2 1/2%) of the Base Rent plus Additional
Rent) and the costs of a building office at the Office
Complex. Lessor agrees, however, that a building office shall
not be at the Office Complex, unless located in Phase II, or
otherwise approved by Lessee. Lessee shall have the right to
approve the janitorial service contractor. The term "Operating
Expenses" shall not include any capital improvement to the
Office Complex other than replacements required for normal
maintenance and repair, nor shall it include repairs,
restoration or other work occasioned by fire, windstorm or
other insured casualty, expenses incurred in leasing or
procuring tenants, leasing commissions, advertising expenses,
expenses for renovating space for new tenants, or for any cost
or expense incurred solely for the benefit of a tenant or
occupant at the Office Complex, other than Lessee, legal
expenses incident to enforcement by Lessor of the terms of any
lease, interest or principal payments on any mortgage or other
indebtedness of Lessor, compensation paid to any employee of
Lessor above the grade of building superintendent,
depreciation allowance or expense. Notwithstanding the
foregoing, in the event Lessor installs equipment in or makes
improvements or alterations to the Office Complex which are
for the purpose of reducing energy costs, maintenance costs or
other Operating Expenses (and which, based upon reasonable
evidence, do reduce such costs and expenses) or which are
required under any governmental laws, regulations or
ordinances which were not required at the date of commencement
of the term of this Lease, Lessor may include in Operating
Expenses reasonable charges for interest on such investment
and reasonable charges for depreciation on the same so as to
amortize such investment over the reasonable life of such
equipment, improvement or alteration on a straight line basis.
Operating Expenses shall also be deemed to include expenses
incurred by Lessor in connection with city sidewalks adjacent
to the Property and any pedestrian walkway system (either
above or below ground) or other public facility to which
Lessor or the Office Complex is from time to time subject in
connection with operations of the Property and the Office
Complex. The term "Operating Expenses" shall also include any
assessments or fees or other charges imposed upon the Office
Complex, or upon Lessor as a result of Lessor's ownership of
the Office Complex, under any encumbrances, covenants,
conditions, restrictions or other matters now of record or
hereafter recorded against the Office Complex. Lessor shall
use commercially reasonable efforts to maintain Operating
Expenses (and each component thereof) at competitive, market
rates, and to cooperate with Lessee in this regard, including
re-bidding any service or cost-item deemed, by Lessee, to be
above competitive, market rates. Lessee's failure to assess
any charges to Lessee of any additional, or previously
unbilled Operating Expenses or Real Estate Taxes for a Lease
Year by
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December 31 of the following calendar year shall be deemed a
waiver by Lessee of its right to assess and collect such
additional unbilled amount.
D. The term "Lessee's Pro Rata Share of Real Estate Taxes and
Operating Expenses" shall mean the product of (i) the
percentage obtained by dividing the rentable area of the
Premises by the rentable area of the Office Complex, and (ii)
the Real Estate Taxes and Operating Expenses for the
applicable Lease Year; provided, however, the percentage used
to calculate Lessee's Pro Rata Share of Real Estate Taxes and
Operating Expenses shall be amended each Lease Year to the
greater of the following: (i) if the total rentable area
leased in the Office Complex (pursuant to leases under which
the term has commenced) is ninety-five percent (95%) or less
than the rentable area of the Office Complex, the percentage
shall be that which the rentable area of the Premises bears to
ninety-five percent (95%) of the total rentable area of the
Office Complex for such Lease Year; or (ii) if the total
rentable area leased in the Office Complex (pursuant to leases
under which the term has commenced) is greater than
ninety-five percent (95%), the percentage shall be that which
the rentable area of the Premises bears to the actual rentable
area of the Office Complex for such Lease Year. Rentable area
shall in no event include basement storage space or garage
space.
E. Anything herein to the contrary notwithstanding, it is agreed
that in the event the Office Complex is not fully occupied
during any calendar year or any Lease Year, a reasonable and
equitable adjustment shall be made by Lessor in computing the
Operating Expenses for such year so that the Operating
Expenses shall be adjusted to the amount that would have been
incurred had the Office Complex been fully occupied during
such year. Any such adjustment shall be consistent with
prudent property management practices, shall be disclosed in
writing to Lessee in each Lease Year's reconciliation
statement of Operating Expenses provided to Lessee, and shall
not conflict with the provisions of Article II.D., above.
As to each Lease Year during the term of this Lease, Lessor shall
estimate for each such Lease Year (i) the total amount of Real Estate Taxes and
Operating Expenses; (ii) Lessee's Pro Rata Share of Real Estate Taxes and
Operating Expenses; and (iii) the computation of the annual and monthly rental
payable during such Lease Year as a result of increases or decreases in Lessee's
Pro Rata Share of Real Estate Taxes and Operating Expenses. Said estimate shall
be in writing and shall be delivered or mailed to Lessee at the Premises. Lessor
shall endeavor to deliver said estimate no later than April 30 of each Lease
Year. As of the date of this Lease, Lessor estimates the total amount of Real
Estate Taxes and Operating Expenses for the first lease Year of Operation of the
Office Complex to be approximately $6.00, per rentable square foot.
Lessee shall pay, as Additional Rent, the amount of Lessee's Pro Rata
Share of Real Estate Taxes and Operating Expenses for each Lease Year, so
estimated, in equal monthly installments, in advance, on the first day of each
month during each applicable Lease Year. In the event that said estimate is
delivered to Lessee after the first day of January of the applicable Lease Year,
said amount, so estimated, shall be payable as Additional Rent, in equal monthly
installments, in advance, on the first day of each month over the balance of
such Lease Year, with the number of installments being equal to the number of
full calendar months remaining in such Lease Year.
From time to time during any applicable Lease Year, Lessor may
re-estimate the amount of Real Estate Taxes and Operating Expenses
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and Lessee's Pro Rata Share thereof, and in such event Lessor shall notify
Lessee, in writing, of such re-estimate in the manner above set forth and fix
monthly installments for the then remaining balance of such Lease Year in an
amount sufficient to pay the re-estimated amount over the balance of such Lease
Year after giving credit for payments made by Lessee on the previous estimate.
Upon completion of each Lease Year (and in any event prior to the
immediately succeeding June 30), Lessor shall cause its accountants to determine
the actual amount of Real Estate Taxes and Operating Expenses for such Lease
Year and Lessee's Pro Rata Share thereof and deliver a written certification of
the amounts thereof (in reasonable detail) to Lessee after the end of each Lease
Year. If Lessee has paid less than its Pro Rata Share of Real Estate Taxes and
Operating Expenses for any Lease Year, Lessee shall pay the balance of its Pro
Rata Share of the same within thirty (30) days after the receipt of such
statement. If Lessee has paid more than its Pro Rata Share of Real Estate Taxes
and Operating Expenses for any Lease Year, Lessor shall, at Lessee's option,
either (i) refund such excess, or (ii) credit such excess against the most
current monthly installment or installments due Lessor for its estimate of
Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses for the next
following Lease Year. A pro rata adjustment shall be made for a fractional Lease
Year occurring during the term of this Lease or any renewal or extension thereof
based upon the number of days of the term of this Lease during said Lease Year
as compared to three hundred sixty-five (365) days and all additional sums
payable by Lessee or credits due Lessee as a result of the provisions of this
Article II shall be adjusted accordingly.
Further, Lessee shall pay, also as Additional Rent, all other sums and
charges required to be paid by Lessee under this Lease, and any tax or excise on
rents, gross receipts tax, transaction privilege tax or other tax, however
described, which is levied or assessed by the United States of America or the
state in which the Office Complex is located or any political subdivision
thereof, or any city or municipality, against Lessor in respect to the Base
Rent, Additional Rent, or other charges reserved under this Lease or as a result
of Lessor's receipt of such rents or other charges accruing under this Lease;
provided, however, Lessee shall have no obligation to pay net income, estate or
inheritance taxes of Lessor.
ARTICLE III. LATE CHARGE AND OVERDUE AMOUNTS - RENT INDEPENDENT: Lessee shall
pay to Lessor, as liquidated damages, a late charge equal to five percent (5%)
of any amount not paid on the date when the same is due to compensate Lessor for
its costs in connection with such late payment by Lessee. Notwithstanding the
preceding sentence, as a condition to Lessor's assessment and collection of said
late charge, the late charge shall not be due unless Lessee fails to pay any
amount within ten (10) days after notice from lessor; however, said condition
shall only apply to the first two (2) delinquencies during any calendar year
during the term of this Lease. The assessment or collection of a late charge
hereunder shall not constitute the waiver by Lessor of a default by Lessee under
this Lease and shall not bar the exercise by Lessor of any rights or remedies
available under this Lease. In addition, any installment of Base Rent,
Additional Rent or other charges to be paid by Lessee accruing under the
provisions of this Lease, which shall not be paid when due, shall bear interest
at the rate of one percent (1%) per month from the date which is thirty (30)
days after the date when the same is due until the same shall be paid, but if
such rate exceeds the maximum interest rate permitted by law, such rate shall be
reduced to the highest rate allowed by law under the circumstances. Lessee's
covenants to pay the Base Rent and the Additional Rent are independent of any
other covenant, condition, provision or agreement herein contained. Nothing
herein contained shall be deemed to suspend or delay the payment of any amount
of money or charge at the time the same becomes due and payable hereunder, or
limit any other remedy of Lessor. Base Rent
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and Additional Rent are sometimes collectively referred to as "rent". Rent shall
be payable without deduction, offset, prior notice or demand, in lawful money of
the United States, except as expressly provided herein.
ARTICLE IV. POSSESSION OF PREMISES: Lessor shall use commercially reasonable and
diligent efforts to construct and deliver the Premises as required by the
provisions of this Lease. If Lessor shall be unable to give possession of the
Premises on the Target Commencement Date because the construction of the Office
Complex or the completion of the Premises has not been sufficiently completed to
make the Premises ready for occupancy or if Lessor shall fail to provide a
certificate of occupancy, or for any other reason, Lessor shall not be subject
to any claims, damages or liabilities for the failure to give possession on said
date except as expressly set forth in this Article IV. Under said circumstances,
the rent reserved and covenant to pay same shall not commence until possession
of the Premises is given or the Premises are ready for occupancy, whichever is
earlier. Failure to give possession on the date of commencement of the term
shall in no way affect the validity of this Lease or the obligations of Lessee
hereunder; provided, however, that if the date of commencement of the initial
term is delayed beyond the Target Commencement Date, the expiration date of the
initial term shall be extended to provide for a full ten-year initial term of
this Lease. If Lessee is given and accepts possession of the Premises on a date
earlier than the date above specified for commencement of the term, and
commences operating its business therefrom (and not merely installing equipment
and fixtures), the rent reserved herein and all covenants, agreements and
obligations herein and the term of this Lease shall commence on the date that
possession of the Premises is given to Lessee.
The acceptance of possession by Lessee shall be deemed conclusively to
establish that the Premises and all other improvements of the Office Complex
required to be constructed by Lessor for use thereof by Lessee hereunder have
been completed at such time to Lessee's satisfaction and in conformity with the
provisions of this Lease in all respects unless Lessee notifies Lessor in
writing within sixty (60) days after commencement of the term as to any items
not completed. Lessee waives any claim as to matters not listed in said notice.
Lessor shall exercise commercially reasonable efforts to complete, repair or
replace any aspect of the Premises set forth in said notice, within sixty (60)
days of said notice. Lessee acknowledges that neither Lessor nor any agent of
Lessor has made any representation or warranty with respect to the Premises or
the Office Complex or with respect to the suitability or fitness of either for
the conduct of Lessee's business or for any other purpose except as expressly
set forth herein. Nothing contained in this Article shall affect the
commencement of the Lease term or the obligation of Lessee to pay any rent due
under this Lease.
On or before February 1, 1999, Lessor shall notify Lessee (said notice
herein referred to as the "Target Notice") of the "Target Delivery Date"
(defined for purposes herein as that date when Lessor shall deliver
non-exclusive possession of the Premises to Lessee with substantial completion
of the Tenant Improvements at which time Lessee may commence installation of its
fixtures and equipment) as well as the Target Commencement Date (which, in
absence of Lessee's written approval, shall be not less than fifteen (15) days
after the Target Delivery Date). If Lessor fails to provide the Target Notice as
required and such failure continues for five (5) business days after notice of
such failure from Lessee (which notice shall describe the obligation of Lessor
to provide said notice, and the resulting termination right (described below) of
Lessee), then Lessee, by subsequent notice (given prior to Lessor's Target
Notice) may elect to, and thereby, terminate this Lease.
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Tenant's existing premises for its corporate headquarters at 00000 X.
Xxxxx Xxxxxxxxx (the "Existing Premises"), is governed and created by several
leases, is comprised of 55,977 rentable square feet, is scheduled to expire on
March 31, 1999, and has an average base rent (before addition of the triple net
charges) of $17.33 per rentable square foot. Tenant shall use diligent efforts
to reach an agreement with its existing landlord to allow a holdover of such
existing premises, at no extraordinary penalty or additional cost, until the
Target Commencement Date, and to thereby mitigate the amount of the
reimbursement obligation of Lessor described in the next paragraph. Lessor
acknowledges that as of the date of this Lease, said landlord has refused to
agree to any holdover arrangement. However, Lessor and Lessee shall continue to
cooperate with each other in negotiating with said landlord to provide for
holdover rights deemed acceptable to Lessor and Lessee.
If the Target Notice indicates a Target Delivery Date which is a date
beyond March 15, 1999, or a Target Commencement Date which is a date beyond
April 1, 1999, then Lessor shall assist Lessee to procure substitute premises in
a "Class 'B'" or better quality office project (as such category is generally
understood as of the date hereof), of approximately the same size as the
Existing Premises at an alternate location in the greater metropolitan Phoenix
area for Lessee's benefit, until the Target Commencement Date. Lessor shall
reimburse Lessee (within twenty (20) days of receipt of Lessee's demand
therefore with reasonable, supporting documentation) for Lessee's out of pocket,
verified costs: (i) directly related to relocating to said substitute premises
from the Existing Premises; and (ii) for leasing said substitute premises, to
the extent the total rent rate payable for the substitute premises exceeds the
total rent rate payable at the time of expiration of the leases for the Existing
Premises (collectively, the "Reimbursement Obligation"); the parties intend by
the foregoing provision to have Lessor pay for the additional costs (as
specified in (i) and (ii) above) incurred by Lessee as a result of Lessor's
inability to complete and deliver the Premises by the dates set forth in the
first sentence of this paragraph.
If the actual substantial completion and delivery to Lessee of the
Premises occurs after the Target Delivery Date, and the actual commencement of
the term of this Lease occurs after the Target Commencement Date (as each
"Target" date is set forth in the Target Notice), then Lessor shall also pay to
Lessee, the sum of $40,000.00 for each month (and prorated for any partial
months) transpiring between the Target Commencement Date and the actual
commencement of the term of this Lease, and such amount shall be included (in
addition to the amounts described in the preceding paragraph) in the
"Reimbursement Obligation".
If by December 31, 1998, a construction and building permit has not
been issued for the Building (exclusive of the Tenant Improvements for the
Premises) despite the commercially reasonable efforts of Lessor, then either
party, by notice to the other within fifteen (15) days of such date, may
terminate this Lease, in which case, neither party shall have any further
liability to the other, and Lessor shall have no Reimbursement Obligation.
Further, if by September 15, 1999, the Premises have not been substantially
completed and all required occupancy permits have not been provided, then
Lessor's Reimbursement Obligation shall cease accruing as of said date, and
further Lessee may elect to terminate this Lease by notice to Lessor within
fifteen (15) days of such date.
All obligations of Lessor in this Lease to plan, develop, improve and
construct the Office Complex, including the Premises, are subject to acts of
God, strikes, labor troubles, failure or refusal of governmental authorities to
timely issue permits or approvals or conduct reviews or inspections (despite the
commercially reasonable efforts of Lessor), civil disorder, inability to procure
materials (despite the commercially reasonable efforts of Lessor), restrictive
governmental laws or regulations,
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acts or omissions of Lessee which interfere with the discharge by Lessor of its
obligations, the failure or refusal of Lessee to act or respond in a timely
manner, or other causes beyond Lessor's reasonable control ("force majeure").
To the extent the substantial completion of the Office Complex, including the
Premises, is delayed because of causes force majeure, then the dates applicable
for the Target Delivery Date, the Target Commencement Date, the dates set forth
in the preceding paragraph, and all other dates set forth in this Lease which
relate to the construction and delivery of the Office Complex and the Premises,
shall be postponed in an amount corresponding to the amount of the delays, and
in addition, any Reimbursement Obligation of Lessor thereby resulting shall not
be the responsibility of Lessor, notwithstanding anything in this Lease to the
contrary.
Lessee acknowledges that except for certain conduits, trenches and
related facilities to be constructed by Lessor (to the extent described under
the plans and specifications described on Exhibit "F", hereto) intended to
accommodate the telephone service to the Office Complex, the failure to have
operating telephone service to the Office Complex shall not affect the
commencement of the term of this Lease, or the determination of the substantial
completion of the Premises.
ARTICLE V. SERVICES: Subject to the provisions of Article II hereof, Lessor
shall provide the following services on all days excepting Saturdays, Sundays,
holidays, and as otherwise stated:
A. Nightly janitorial services Monday through Friday in and about
the Premises; provided, however, Lessor may, but shall not be
obligated to, elect to furnish janitorial service on Saturday
or Sunday in lieu of furnishing such service on Friday. The
janitorial services furnished to the Premises shall include
normal cleaning and upkeep services, normal removal of trash
and rubbish, vacuuming and spot cleaning of carpeting,
maintenance of towels, tissue and other restroom supplies and
such other work as is customarily performed in connection with
such nightly janitorial services in an office complex similar
in construction, general location, use and occupancy to the
Office Complex. Lessor shall also provide periodic interior
and exterior window washing and cleaning and waxing of
uncarpeted floors in accordance with Lessor's reasonable
schedule.
B. Electrical energy will be provided for lighting and operation
of office machines, air conditioning, and heating as required
for normal office usage during the normal working hours set
forth in subparagraph C of this Article. Office machines will
include electric typewriters and other office equipment of
similar low electrical consumption. This does not include
special lighting in excess of building standard (2.2 xxxxx per
square foot installed), or any other item of electrical
equipment which singularly consumes more than 0.5 kilowatts
per hour at rated capacity or requires a voltage other than
one hundred twenty (120) volts single phase. If electrical
consumption exceeds the requirement of normal office use as
specified above (such as in a computer room), Lessor reserves
the right to include and Lessee shall pay upon receipt of
invoice, a charge based on the average cost per unit of
electricity for the Office Complex applied to the excess use
determined by an engineer selected by Lessor and/or by
submeter. At the option of either Lessor or Lessee, a submeter
may be provided and installed at Lessee's expense, if
allowable under law and local utility regulations. Lessee
shall pay the cost of all equipment and of the installation of
all facilities provided and installed by Lessor to provide
such electrical capacity in excess of the above normal office
standards. Lessee shall not make any installation requiring
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excess electrical energy without first receiving Lessor's
written consent thereto, which shall not be unreasonably
withheld; and provided further that Lessee shall pay all costs
of installation of facilities necessary to furnish such excess
capacity and for such increased electrical usage. All electric
lighting bulbs for specialized lighting within the Premises
shall be replaced by Lessor at the expense of Lessee and shall
be paid by Lessee upon receipt of invoice from Lessor as rent.
The electrical service required of Lessor by this subparagraph
B, and electricity for other uses consented to by Lessor,
shall be available at all times subject to the requirement
that Lessee pay for usage in excess of the electrical service
to be provided pursuant to the terms of this subparagraph B.
C. Heat and air conditioning, when necessary in Lessor's
reasonable judgment (consistent with standards of prudent
property management applicable for comparable office
projects), for normal comfort, from 7 o'clock A.M. to 6
o'clock P.M. on non-holiday weekdays, and on Saturdays which
are not holidays, from 7 o'clock A.M. to 1 o'clock P.M. Air
conditioning to the Premises is to be provided based on
standard lighting and normal incidental office use only.
During other hours, Lessor shall provide such amounts of
heating and air conditioning within designated and configured
(based upon the HVAC distribution system) zones within the
Premises, upon reasonable advance notice from Lessee to
Lessor, which advance notice shall not be less than
twenty-four (24) hours; and Lessee, upon presentation of a
xxxx therefor, shall pay Lessor for such service on an hourly
basis at the then prevailing rates as established by Lessor.
As of the date of this Lease, said rate shall be $2.50 per
hour per air distribution zone, subject to reasonable provider
increases as a result of increased utility or other charges.
D. Hot and cold water from the regular building outlets for
lavatory and restrooms and for drinking purposes, at all
times.
E. Passenger elevator service in common with other tenants to be
provided by automatic elevators, at all times. Lessor shall
have the right to restrict the use of elevators for freight
purposes to the freight elevator and to hours to be determined
by Lessor. Lessor shall have the right to limit the number of
elevators to be in operation on Saturdays, Sundays and
holidays.
F. Maintenance in good order, condition and repair of the parking
facilities and all driveways leading thereto and keeping the
same free from any unreasonable accumulation of snow. Lessor
shall keep and maintain the landscaped area and parking
facilities in a neat and orderly condition. Lessor reserves
the right to designate areas of the appurtenant parking
facilities where Lessee, its agents, employees and invitees
shall park and may exclude Lessee and its agents, employees
and invitees from parking in other areas as designated by
Lessor; provided, however, Lessor shall not be liable to
Lessee for the failure of any tenant or its invitees,
employees, agents or customers to abide by Lessor's
designations or restrictions. Lessee is aware that Lessor may
be required to designate certain parking stalls due to
governmental request or order to accommodate car or van
poolers.
G. Lessee shall be solely responsible for the direct payment of
all utilities which are separately metered or separately
charged (electric, natural gas (if any), telephone, cable
television (if any) and any other special
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utility requirements of Lessee), if any, to the Premises or to
Lessee and shall make such payments to the respective utility
companies prior to delinquency. Such amounts shall not be
included as Operating Expenses.
No interruption in, or temporary stoppage of, any of the aforesaid
services caused by repairs, renewals, improvements, alterations, strikes,
lockouts, labor controversy, accident, inability to obtain fuel or supplies, or
other causes shall be deemed an eviction or disturbance of Lessee's use and
possession, or render Lessor liable for damages, by abatement of rent or
otherwise or relieve Lessee from any obligation herein set forth; provided,
however, that if there is a localized interruption in, or localized temporary
stoppage of, any of the aforesaid services in the Premises (as opposed to an
interruption in the general vicinity of the Office Complex not under Lessor's
control), and if such interruption or temporary stoppage is within the sole
control of Lessor and, after notice to Lessor, Lessor does not diligently
attempt and continue diligent attempts to cure such interruption or temporary
stoppage, then Lessee shall be entitled to a reasonable abatement of Base Rent
and Additional Rent if after twenty-four (24) hours after Lessor's receipt of
notice, Lessor's efforts to cure same have failed. In no event shall Lessor be
required to provide any heat, air conditioning, electricity or other service in
excess of that permitted by voluntary or involuntary guidelines or laws,
ordinances or regulations of governmental authority. Lessor reserves the right,
from time to time, to make reasonable and non-discriminatory modifications to
the above standards for utilities and services.
Lessee shall not, without the prior written consent of Lessor, use any
apparatus or device in or about the Premises which shall cause any substantial
noise or vibration or which will increase the amount of electricity or water, if
any, usually furnished or supplied for use of the Premises as general office
space. Lessee shall not connect with electric current or water pipes, except
through existing electrical or water outlets already in the Premises, any
apparatus or device for the purposes of using electric current or water.
ARTICLE VI. INSURANCE: Lessor shall keep the Office Complex insured for the
benefit of Lessor in an amount equivalent to the full replacement value thereof
(excluding foundation, grading and excavation costs and a commercially
reasonable deductible) against:
(a) loss or damage by fire; and
(b) such other risk or risks of a similar or dissimilar nature as
are now or may be customarily covered with respect to
buildings and improvements similar in construction, general
location, use, occupancy and design to the Office Complex,
including, but without limiting the generality of the
foregoing, windstorms, hail, explosion, vandalism, malicious
mischief, civil commotion and such other coverage as may be
deemed necessary by Lessor, provided such additional coverage
is obtainable and provided such additional coverage is such as
is customarily carried with respect to buildings and
improvements similar in construction, general location, use,
occupancy and design to the Office Complex.
These insurance provisions shall in no way limit or modify any of the
obligations of Lessee under any provision of this Lease. Lessor agrees that such
policy or policies of insurance shall permit releases of liability as provided
herein and/or waiver of subrogation clause as to Lessee, and Lessor waives,
releases and discharges Lessee from all claims or demands whatsoever which
Lessor may have or acquire arising out of damage to or destruction of the Office
Complex or loss of use thereof occasioned by fire or other casualty, whether
such claim or demand may arise because of the negligence or fault of Lessee or
its agents, employees,
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customers or business invitees, or otherwise, and Lessor agrees to look to the
insurance coverage only in the event of such loss. Insurance premiums paid
thereon shall be a portion of the "Operating Expenses" described in Article II
hereof. Notwithstanding the above, in the event a release of Lessee or waiver of
subrogation as to Lessee (without invalidation of coverage) becomes generally
unavailable in insurance policies as to commercial office projects similar to
the Office Complex, the release and any waiver of subrogation above provided for
shall cease upon written notice by Lessor to Lessee of such event. Thereafter,
Lessee may, upon written notice to Lessor, require Lessor to secure a waiver of
subrogation as to Lessee if (a) a right to waive subrogation as to Lessee
thereafter becomes available without increased premium, or (b) a right to waive
subrogation as to Lessee becomes available and Lessee pays any increased premium
required in connection therewith.
Lessee shall keep all of its machinery, equipment, furniture, fixtures,
personal property (including also property under the care, custody or control of
Lessee) and business interests which may be located in, upon or about the
Premises insured for the benefit of Lessee in an amount equivalent to the full
replacement value or insurable value thereof against:
(a) loss or damage by fire; and
(b) such other risk or risks of a similar or dissimilar nature as
are now, or may in the future be, customarily covered with
respect to a tenant's machinery, equipment, furniture,
fixtures, personal property and business located in a building
similar in construction, general location, use, occupancy and
design to the Office Complex, including, but without limiting
the generality of the foregoing, windstorms, hail, explosions,
vandalism, theft, malicious mischief, civil commotion and such
other coverage as Lessee may deem appropriate or necessary.
Lessee agrees that such policy or policies of insurance shall permit
releases of liability as provided herein and/or waiver of subrogation clause as
to Lessor, and Lessee waives, releases and discharges Lessor and its agents,
employees and contractors from all claims or demands whatsoever which Lessee may
have or acquire arising out of damage to or destruction of the machinery,
equipment, furniture, fixtures, personal property and loss of use thereof
occasioned by fire or other casualty, whether such claim or demand may arise
because of the negligence or fault of Lessor or its agents, employees,
contractors or otherwise, and Lessee agrees to look to the insurance coverage
only in the event of such loss.
Lessee shall be permitted to "self-insure" or to establish deductible
limits under such policies, provided, however, that the amount of such retained
risk shall not exceed, at any time, ten percent (10%) of Lessee's Tangible Net
Worth (defined in the last paragraph of this Article), as the same may change
from time to time. Lessee agrees that such policy or policies of insurance shall
permit releases of liability as provided herein and/or waiver of subrogation
clause as to Lessor, and Lessee waives, releases and discharges Lessor and its
agents, employees and contractors from all claims or demands whatsoever which
Lessee may have or acquire arising out of damage to or destruction of the
machinery, equipment, furniture, fixtures, personal property and loss of use
thereof occasioned by fire or other casualty, whether such claim or demand may
arise because of the negligence or fault of Lessor or its agents, employees,
contractors or otherwise, and Lessee agrees to look to the insurance coverage
only in the event of such loss.
Lessor shall, as a portion of the Operating Expenses defined in Article
II, maintain, for its benefit and the benefit of its managing agent, general
public liability insurance against claims for personal injury, death or property
damage occurring upon, in or about the Complex, such insurance to afford
protection to Lessor
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and its managing agent in such amounts as Lessor deems commercially reasonable
and comparable to the amounts maintained for projects similar to the Complex,
but in no event less than $2,000,000.00 of total insurance coverage for the
commercial general liability policy.
Lessee shall, at Lessee's sole cost and expense but for the mutual
benefit of Lessor, its managing agent and Lessee, maintain general public
liability insurance against claims for personal injury, death or property damage
occurring upon, in or about the Premises, such insurance to afford protection to
Lessor, its managing agent and Lessee to the limit of not less than One Million
and No/100 Dollars ($1,000,000.00) in respect to the injury or death to a single
person, and to the limit of not less than Two Million and No/100 Dollars
($2,000,000.00) in respect to any one accident, and to the limit of not less
than Five Hundred Thousand and No/100 Dollars ($500,000.00) in respect to any
property damage or any greater amounts, if Lessee procures insurance with
greater limits. Such policies of insurance shall be written in companies
reasonably satisfactory to Lessor, naming Lessor and its managing agent as
additional insureds thereunder, and such policies, or a memorandum or
certificate of such insurance, shall be delivered to Lessor, which certificate
shall require the insurance underwriter to notify Lessor, not less than thirty
(30) days prior to any cancellation or termination of such insurance coverage.
At such time as insurance limits required of tenants in office buildings in the
area in which the Office Complex is located are generally increased to greater
amounts, Lessor shall have the right to require such greater limits as may then
be customary. Lessee agrees to include in such policy the contractual liability
coverage insuring Lessee's indemnification obligations provided for herein. Any
such coverage shall be deemed primary to any liability coverage secured by
Lessor. Such insurance shall also afford coverage for all claims based upon
acts, omissions, injury or damage, which claims occurred or arose (or the onset
of which occurred or arose) in whole or in part during the policy period.
Lessee agrees to indemnify, protect, defend and hold harmless Lessor
and Lessor's partners, shareholders, employees, lender and managing agent
harmless from and against any and all claims, losses, costs, liabilities,
actions and damages, including without limitation attorneys' fees and costs, by
or on behalf of any person or persons, firm or firms, corporation or
corporations, arising from any breach or default on the part of Lessee in the
performance of any covenant or agreement on the part of Lessee to be performed,
pursuant to the terms of this Lease, or arising from any act or negligence on
the part of Lessee or its agents, contractors, servants, employees or licensees,
or arising from any accident, injury or damage to the extent caused by Lessee or
its agents or employees to any person, firm or corporation occurring during the
term of this Lease or any renewal thereof, in or about the Premises and the
Office Complex, and from and against all costs, reasonable counsel fees,
expenses and liabilities incurred in or about any such claim or action or
proceeding brought thereon; and in case any action or proceeding be brought
against Lessor or its managing agent, by reason of any such claim, Lessee upon
notice from Lessor, covenants to resist or defend such action or proceeding by
counsel reasonably satisfactory to Lessor.
Lessee agrees, to the extent not expressly prohibited by law, that
Lessor and Lessor's agents, employees and servants shall not be liable, and
Lessee waives all claims for damage to property and business sustained during
the term of this Lease by Lessee occurring in or about the Office Complex,
resulting directly or indirectly from any existing or future condition, defect,
matter or thing in the Premises, the Office Complex or any part thereof, or from
equipment or appurtenances becoming out of repair, or from accident, or from any
occurrence or act or omission of Lessor, Lessor's agents, employees or servants
(other than as a result of the gross negligence or willful misconduct of Lessor,
its agents, employees or servants), any tenant or occupant of the Office
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Complex or any other person. This paragraph shall apply especially, but not
exclusively, to damage caused as aforesaid or by the flooding of basements or
other subsurface areas, or by refrigerators, sprinkling devices, air
conditioning apparatus, water, snow, frost, steam, excessive heat or cold,
falling plaster, broken glass, sewage, gas, odors or noise, or the bursting or
leaking of pipes or plumbing fixtures, and shall apply equally, whether any such
damage results from the act or omission of other tenants or occupants in the
Office Complex or any other persons, and whether such damage be caused by or
result from any of the aforesaid, or shall be caused by or result from other
circumstances of a similar or dissimilar nature.
Anything herein to the contrary notwithstanding, in the event any
damage to the Office Complex results from any act or omission of Lessee or its
agents, employees or invitees, and all or any portion of Lessor's loss is within
the "deductible" portion of Lessor's insurance coverage, Lessee shall pay to
Lessor the amount of such deductible loss (not to exceed $1,000 per event). All
property in the Office Complex or on the Premises belonging to Lessee or its
agents, employees or invitees or otherwise located at the Premises, shall be at
the risk of Lessee only, and Lessor shall not be liable for damage thereto or
theft, misappropriation or loss thereof, and Lessee agrees to defend and hold
Lessor and Lessor's agents, employees and servants harmless and indemnify them
against claims and liability for injuries to such property. Lessee shall not do
or permit anything to be done in or about the Premises nor bring or keep
anything therein which will in any way increase the existing rate of or affect
in any other way any fire or other insurance upon the Office Complex or any of
its contents, or cause a cancellation of any insurance policy covering the
Office Complex or any of its contents. Notwithstanding anything to the contrary
contained herein, Lessee shall within thirty (30) days of demand, reimburse
Lessor for the full amount of any additional premium charged for such policy by
reason of Lessee's failure to comply with the provisions of this paragraph, it
being understood that such demand for reimbursement shall not be Lessor's
exclusive remedy. Lessee shall promptly, upon demand, reimburse Lessor for any
additional premium charged for any such policy by reason of Lessee's failure to
comply with the provisions of this Article.
In the event Lessee fails to provide Lessor with evidence of insurance
required under this Article VI, Lessor may, but shall not be obligated to, and
after ten (10) days demand upon Lessee, and without waiving or releasing Lessee
from any obligation contained in this Lease, obtain such insurance and Lessee
agrees to repay, upon demand, all such sums incurred by Lessor in effecting such
insurance. All such sums shall become a part of the Additional Rent payable
hereunder, but no such payment by Lessor shall relieve Lessee from any default
under this Lease.
For purposes hereof, "Tangible Net Worth" shall mean equity of Lessee
and its subsidiaries on a consolidated basis determined in accordance with GAAP,
minus the net book value of all intangible assets including, without limitation,
good will, trademarks, trade names, service marks, brand names, copyrights,
patents and unamortized debt discount and expense, organizational expenses and
the excess of the equity in any subsidiary over the cost of the investment in
such subsidiary.
ARTICLE VII. CERTAIN RIGHTS RESERVED BY LESSOR: Lessor reserves the following
rights exercisable without notice and without liability to Lessee and without
effecting an eviction, constructive or actual, or disturbance of Lessee's use or
possession, or giving rise to any claim for setoff or abatement of rent:
A. Subject to Article XXXVI, below, to control, install, affix
and maintain any and all signs on the Property, or on the
exterior of the Office Complex and in the corridors, entrances
and other common areas thereof,
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except those signs within the Premises not visible from
outside the Premises.
B. To reasonably designate, limit, restrict and control any
service in or to the Office Complex, including but not limited
to the designation of sources from which Lessee may obtain
sign painting and lettering (however, Lessor agrees not to
unreasonably withhold its consent to Lessee's designation).
Any restriction, designation, limitation or control imposed by
reason of this subparagraph shall be imposed uniformly on
Lessee and other tenants occupying space in the Office
Complex, and pursuant to the comprehensive sign program,
applicable to the Office Complex, which shall be subject to
Lessee's reasonable consent.
C. To retain at all times and to use in appropriate instances
(which, except during an emergency, shall require reasonable
prior notice) keys to all doors within and into the Premises.
No locks shall be changed without the prior written consent of
Lessor. This provision shall not apply to Lessee's safes or
other areas maintained by Lessee for the safety and security
of monies, securities, negotiable instruments or similar
items.
D. To make repairs, improvements, alterations, additions or
installations, whether structural or otherwise, in and about
the Office Complex, or any part thereof, and for such purposes
to enter upon the Premises (after reasonable advance notice of
twenty-four (24) hours), and during the continuation of any of
said work, to temporarily close doors, entryways, public
spaces and corridors in the Office Complex and to interrupt or
temporarily suspend services and facilities.
E. To restrict or prohibit vending or dispensing machines of any
kind in or about the Premises; provided, however, Lessor
consents to the installation of vending machines in the pantry
or kitchen areas of the Premises for the dispensing of soda
and other similar drinks and snack foods to only Lessee's
employees, clients and visitors.
F. To approve the weight, size and location of safes and other
heavy equipment and articles in and about the Premises and the
Office Complex and to require all such items to be moved into
and out of the Office Complex and the Premises only at such
times and in such manner as Lessor shall direct in writing.
G. To grant to anyone the exclusive right to conduct any
particular business or undertaking in the Office Complex other
than general office use, for only the following businesses:
banks, savings and loan associations, candy and/or tobacco
shops, and other stores selling retail products.
Lessor and its agents may enter the Premises at any time in case of
emergency and shall have the right to use any and all means which Lessor may
deem proper to open such doors during an emergency in order to obtain entry to
the Premises. Any entry to the Premises obtained by Lessor in the event of an
emergency shall not, under any circumstances, be construed or deemed to be a
forcible or unlawful entry into, or detainer of, the Premises, or to be an
eviction of Lessee from the Premises or any portion thereof.
Lessee shall permit Lessor and its agents twenty-four (24) hours
advance notice, to enter and pass through the Premises or any part thereof at
reasonable times during normal business hours to: (a) post notices of
nonresponsibility; and (b) exhibit the Premises to holders of encumbrances on
the interest of Lessor under the
-15-
Lease and to prospective purchasers, mortgagees or lessees of the Office
Complex.
All covenants and agreements to be performed by Lessee under any of the
terms of this Lease shall be performed by Lessee at Lessee's sole cost and
expense and without any abatement of rent. If Lessee shall fail to pay any sum
of money (other than rent due Lessor) required to be paid by it hereunder or
shall fail to perform any other act on its part to be performed hereunder,
including, but not limited to, the failure to commence and complete repairs
promptly and adequately, and the failure to remove any liens or otherwise to
perform any act or fulfill any obligation required of Lessee under this Lease,
Lessor may, but shall not be obligated to do so, without waiving or releasing
Lessee from any obligations of Lessee, and upon reasonable prior notice to
Lessee, make any such payment or perform any such act on Lessee's part to be
made or performed as in this Lease provided. All sums so paid by Lessor and all
necessary incidental costs, together with an administrative charge in the amount
of ten percent (10%) of any costs incurred by Lessor, and interest thereon at
the rate set forth in Article III accruing from the date paid or incurred by
Lessor until reimbursed to Lessor by Lessee, shall be payable to Lessor by
Lessee as rent on demand and Lessee covenants to pay all such sums. Lessor shall
have (in addition to any other right or remedy of Lessor) the same rights and
remedies in the event of Lessee's nonpayment of such sums, as in the case of
default by Lessee in the payment of rent to Lessor.
ARTICLE VIII. ALTERATIONS AND IMPROVEMENTS: Lessee shall not make any
improvements, alterations, additions or installations in excess of $10,000.00 or
otherwise affecting the Building structure or systems, in or to the Premises
(hereinafter referred to as "Work") without Lessor's prior written consent,
which consent may not be unreasonably withheld. Along with any request for
Lessor's consent and before commencement of the Work or delivery of any
materials to be used in the Work to the Premises or into the Office Complex,
Lessee shall furnish Lessor with plans and specifications, names and addresses
of contractors, copies of contracts, necessary permits and licenses, an
indemnification in such form and amount as may be reasonably satisfactory to
Lessor, and for Work estimated to cost $100,000.00 or more, a performance bond
executed by a commercial surety reasonably satisfactory to Lessor in an amount
equal to the cost of the Work and for the payment of all liens for labor and
material arising therefrom. Lessee agrees to defend and hold Lessor forever
harmless from any and all claims and liabilities of any kind and description
which may arise out of or be connected in any way with said improvements,
alterations, additions or installations. All Work shall be done only by
contractors or mechanics reasonably approved by Lessor and at such time and in
such manner as Lessor may from time to time reasonably designate. All Work done
by Lessee or its agents, employees or contractors shall be done in such a manner
as to avoid labor disputes. Lessee shall pay the cost of all such improvements,
alterations, additions or installations (including a reasonable charge, not in
excess of prevailing market rates, for Lessor's services and for Lessor's
inspection and engineering time) and the cost of painting, restoring or
repairing the Premises and the Office Complex occasioned by such improvements,
alterations, additions or installations. Upon completion of the Work, Lessee
shall furnish Lessor with contractor's affidavits, full and final waivers of
liens and receipted bills covering all labor and materials expended and used.
The Work shall comply with all insurance requirements and all laws, ordinances,
rules and regulations of all governmental authorities and shall be constructed
in a good and workmanlike manner. Lessee shall permit Lessor to inspect
construction operations in connection with the Work. Lessee shall not be allowed
to make any improvements, alterations, additions or installations if such action
results or would result in a labor dispute or otherwise would materially
interfere with Lessor's operation of the Office Complex. Lessor, by written
notice to Lessee given at or prior to termination of this Lease, may require
Lessee, at
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Lessee's sole cost and expense, to remove any improvements, alterations,
additions or installations which are not typical of similar office projects used
for general office purposes, installed by Lessee in the Premises and to repair
or restore any damage caused by the installation and removal of such
improvements, alterations, additions or installations; provided, however, the
only improvements, alterations, additions or installations which Lessee shall
remove shall be those specified in Lessor's notice. Lessee shall keep the
Premises and the Office Complex free from any liens arising out of any work
performed, material furnished or obligations incurred by Lessee, and shall
indemnify, protect, defend and hold harmless Lessor from any liens and
encumbrances arising out of any work performed or material furnished by or at
the direction of Lessee. In the event that Lessee shall not, within twenty (20)
days following the imposition of any such lien, cause such lien to be released
of record by payment or posting of a proper bond, Lessor shall have, in addition
to all other remedies provided herein and by law, the right, but not the
obligation, to cause the same to be released by such means as it shall deem
proper, including payment of and/or defense against the claim giving rise to
such lien. All such sums paid by Lessor and all expenses incurred by it in
connection therewith, including attorneys' fees and costs, shall be payable as
Additional Rent to Lessor by Lessee on demand with interest at the rate provided
in Article III accruing from the date paid or incurred by Lessor until
reimbursed to Lessor by Lessee.
ARTICLE IX. REPAIRS: Subject to Article VI hereof, Lessee shall, during the term
of this Lease, at Lessee's expense, keep the Premises in as good order,
condition and repair as they were at the time Lessee took possession of the
same, reasonable wear and tear and damage from fire and other casualties
excepted. Lessee shall keep the Premises in a neat and sanitary condition, and
Lessee shall not commit any nuisance or waste on the Premises or in, on or about
the Office Complex, throw foreign substances in the plumbing facilities, or
waste any of the utilities furnished by the Lessor. All uninsured damage or
injury to the Premises or to the Office Complex caused by Lessee moving
furniture, fixtures, equipment or other devices in or out of the Premises or the
Office Complex or by installation or removal of furniture, fixtures, equipment,
devices or other property of Lessee or its agents, contractors, servants or
employees, due to carelessness, omission, neglect, improper conduct or other
cause of Lessee or its servants, employees, agents, visitors or licensees, shall
be repaired, restored and replaced promptly by Lessee at its sole cost and
expense to the satisfaction of Lessor. All repairs, restorations and
replacements shall be in quality and class equal to the original work and shall
comply with all requirements of this Lease.
Subject to Article II hereof and to Lessee's specific obligations,
except to the extent of any damage caused by the fault or negligence of Lessee,
Lessor shall maintain and keep in good order, condition and repair all common
areas of the Office Complex and the structural portions of the Office Complex,
including the outer walls, roof, floors, foundations, load bearing members,
trusses, and joists, the HVAC facilities serving the Premises, and the portions
of the plumbing and electrical lines located outside of the Premises which serve
the Premises.
Lessor and its employees and agents shall have the right to enter the
Premises at any reasonable time or times after twenty-four (24) hours advance
notice, for the purpose of inspection, cleaning, repairs, altering or improving
the same but nothing contained herein shall be construed as imposing any
obligation on Lessor to make any repairs, improvements, alterations, additions
or installations which are the obligation of Lessee.
Either party may give written notice to the other party at least thirty
(30) days prior to vacating the Premises for the express purpose of arranging a
meeting for a joint inspection of the Premises.
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ARTICLE X. ASSIGNMENT AND SUBLETTING: Lessee shall not, without the prior
written consent of Lessor, (i) transfer, pledge, mortgage or assign this Lease
or any interest hereunder; (ii) permit any assignment of this Lease by voluntary
act, operation of law or otherwise; (iii) sublet the Premises or any part
thereof; or (iv) permit the use of the Premises by any parties other than Lessee
and its agents and employees. Notwithstanding the foregoing, a sublease or
assignment to a subsidiary of Lessee, or an arrangement resulting from a merger
or reorganization in which the surviving entity has a "Tangible Net Worth"
(defined in Article VI of not less than Lessee's immediately prior to the merger
or reorganization, shall not require the consent of Lessor. Lessee shall seek
such written consent of Lessor by a written request therefor, setting forth such
information as Lessor may deem necessary. Lessee shall, by notice in writing,
advise Lessor of Lessee's intention, from, on and after a stated date (which
shall not be less than twenty (20) days after the date of Lessee's notice), to
assign this Lease or to sublet any part or all of the Premises for the balance
or any part of the term. Lessee's notice shall include all of the terms of the
proposed assignment or sublease and shall state the consideration therefor.
Lessee's notice shall state the name and address of the proposed assignee or
subtenant and a. true and complete copy of the proposed assignment or sublease
shall be delivered to Lessor with Lessee's notice.
Lessor, upon receiving Lessee's notice with respect to any such space,
shall not unreasonably withhold its consent to Lessee's assignment of the Lease
or subletting such space to the party identified in Lessee's notice; provided,
however, that in the event Lessor consents to any such assignment or subletting,
and as a condition thereto, Lessee shall pay to Lessor fifty percent (50%) of
all profit derived by Lessee from such assignment or subletting. For purposes of
the foregoing, profit shall be deemed to include, but shall not be limited to,
the amount of all rent payable by such assignee or sublessee in excess of the
Base Rent, and rent adjustments, payable by Lessee under this Lease after
recovery by Lessee of its reasonable and necessary costs incurred in procuring
the sublease or assignment. If a part of the consideration for such assignment
or subletting shall be payable other than in cash, the payment to Lessor shall
be in cash for its share of any non-cash consideration based upon the fair
market value thereof.
Lessee shall and hereby agrees that it will furnish to Lessor upon
request from Lessor a complete statement, certified by an independent certified
public accountant, setting forth in detail the computation of all profit derived
and to be derived from such assignment or subletting, such computation to be
made in accordance with generally accepted accounting principles. Lessee agrees
that Lessor and its authorized representatives shall be given access at all
reasonable times to the books, records and papers of Lessee relating to any such
assignment or subletting, and Lessor shall have the right to make copies
thereof. The percentage of Lessee's profit due Lessor hereunder shall be paid by
Lessee to Lessor within ten (10) business days of receipt by Lessee of all
payments made from time to time by such assignee or sublessee to Lessee.
For purposes of the foregoing, any change in the partners of Lessee, if
Lessee is a partnership, or, if Lessee is a corporation, any transfer of any or
all of the shares of stock of Lessee by sale, assignment, operation of law or
otherwise resulting in a change in the present control of such corporation by
the person or persons owning a controlling portion of such shares as of the date
of this Lease, shall be deemed to be an assignment within the meaning of this
Article X.
Unless the express, written consent of Lessor is given regarding
releasing Lessee, any subletting or assignment hereunder shall not release or
discharge Lessee of or from any liability, whether past, present or future,
under this Lease, and Lessee shall continue fully liable thereunder. Lessor
shall have no obligation to agree to such release or discharge. The subtenant or
subtenants
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or assignee shall agree in a form satisfactory to Lessor to comply with and be
bound by all of the terms, covenants, conditions, provisions and agreements of
this Lease to the extent of the space sublet or assigned, and Lessee shall
deliver to Lessor promptly after execution an executed copy of each such
sublease or assignment and an agreement of compliance by each such subtenant or
assignee. Consent by Lessor to any assignment of this Lease or to any subletting
of the Premises shall not be a waiver of Lessor's rights under this Article X as
to any subsequent assignment or subletting.
Any sale, assignment, mortgage, transfer or subletting of this Lease
which is not in compliance with the provisions of this Article X shall be of no
effect and void. Lessor's right to assign its interest in this Lease shall
remain unqualified. Lessor may make a reasonable charge to Lessee for any
reasonable attorneys' fees or expenses incident to a review of any documentation
related to any proposed assignment or subletting by Lessee.
Notwithstanding anything to the contrary in this Lease, Lessee shall
not assign its rights under this Lease or sublet all or any part of the Premises
to a person, firm or corporation which is (or, immediately prior to such
subletting or assignment, was) a tenant or occupant of the Office Complex owned
by Lessor.
The consent of Lessor to a transfer may not be unreasonably withheld,
provided that should Lessor withhold its consent for any of the following
reasons, which list is not exclusive, such withholding shall be deemed to be
reasonable:
(a) A proposed transferee whose occupation of the Premises would
cause a diminution in the reputation of the Office Complex or
the other businesses located therein;
(b) A proposed transferee whose impact on the common areas or the
other occupants of the Office Complex would be
disadvantageous; or
(c) A proposed transferee whose occupancy will require any
variation in the terms and conditions of this Lease.
ARTICLE XI. DAMAGE BY FIRE OR OTHER CASUALTY: If fire or other casualty shall
render the whole or any material portion of the Premises untenantable, and the
Premises can reasonably be expected to be made tenantable within one hundred
twenty (120) days from the date of such event, then Lessor shall repair and
restore the Premises and the Office Complex to as near their condition prior to
the fire or other casualty as is reasonably possible within such one hundred
twenty (120) day period (subject to delays for causes beyond Lessor's reasonable
control) and notify Lessee that it will be doing so, such notice to be mailed
within thirty (30) days from the date of such damage or destruction, and this
Lease shall remain in full force and effect, but the rent for the period during
which the Premises are untenantable shall be abated pro rata (based upon the
portion of the Premises which is untenantable). If Lessor is required to repair
the Office Complex and/or the Premises, as aforesaid, said work shall be
undertaken and prosecuted with all due diligence and speed.
If fire or other casualty shall render the whole or any material part
of the Premises untenantable and the Premises cannot reasonably be expected to
be made tenantable within one hundred twenty (120) days from the date of such
event, then either party, by notice in writing to the other mailed within thirty
(30) days from the date of such damage or destruction, may terminate this Lease
effective upon a date within thirty (30) days from the date of such notice.
In the event that more than fifty percent (50%) of the value of the
specific office structure of which the Premises is a part is damaged or
destroyed by fire or other casualty, and irrespective of
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whether damage or destruction can be made tenantable within one hundred twenty
(120) days thereafter, then at Lessor's option, by written notice to Lessee,
mailed within forty-five (45) days from the date of such damage or destruction,
Lessor may terminate this Lease effective upon a date within ninety (90) days
from the date of such notice to Lessee. Further, if the foregoing damage or
destruction results in a materially adverse effect on Lessee's use and enjoyment
of the Premises, the Lessee shall have the same right to terminate as is
provided to Lessor (and within the same time periods) in the foregoing sentence.
If fire or other casualty shall render any material portion of the
Premises or any material portion of the Office Complex untenantable and the
insurance proceeds are not sufficient to make repairs, then Lessor may, by
notice to Lessee, mailed within thirty (30) days from the date of such damages
or destruction, terminate this Lease effective upon a date within thirty (30)
days from the date of such notice. However, Lessee may within fifteen (15) days
from Lessor's notice of termination elect to fund the repair cost shortfall and
upon making such funds available to lessor or an independent escrowee within
fifteen (15) days of Lessee's election notice, Lessor's termination election
shall be rescinded, and Lessor shall proceed to repair or restore the Premises
and the Office Complex.
If the Premises or the Office Complex is damaged, and such damage is of
the type insured against under the fire and special form property damage
insurance maintained by Lessor hereunder, the cost of repairing said damage up
to the amount of the deductible under said insurance policy shall be included as
a part of the Operating Expenses. If the damage is not covered by such insurance
policies and Lessor elects to repair the damage, then Lessee shall pay Lessor a
pro rata share of the "deductible amount" (if any) under Lessor's insurance
policies based on Lessee's percentage interest of the Premises and, if the
damage was due to an act or omission of Lessee, Lessee shall pay Lessor the
difference between the actual cost of repair and any insurance proceeds received
by Lessor.
If fire or other casualty shall render the whole or any material part
of the Premises untenantable and the Premises cannot reasonably be expected to
be made tenantable within one hundred twenty (120) days from the date of such
event and neither party hereto terminates this Lease pursuant to its rights
herein or in the event that more than fifty percent (50%) of the value of the
Office Complex is damaged or destroyed by fire or other casualty, and Lessor
does not terminate this Lease pursuant to its option granted herein, or in the
event that fifty percent (50%) or less of the value of the Office Complex is
damaged or destroyed by fire or other casualty and neither the whole nor any
material portion of the Premises is rendered untenantable, then Lessor shall
repair and restore the Premises and the Office Complex to as near their
condition prior to the fire or other casualty as is reasonably possible with all
due diligence and speed (subject to delays for causes beyond Lessor's reasonable
control) and the rent for the period during which the Premises are untenantable
shall be abated pro rata (based upon the portion of the Premises which is
untenantable). In no event shall Lessor be obligated to repair or restore any
special equipment or improvements installed by Lessee. Anything herein contained
to the contrary notwithstanding, Lessor shall not be obligated to spend more
than the net insurance proceeds received by Lessor on account of any fire or
other casualty in order to repair or restore the Premises or the Office Complex
following such casualty; provided, however, Lessor shall notify Lessee promptly
after the casualty if Lessor is unwilling to expend more than the net insurance
proceeds.
In the event of a termination of this Lease pursuant to this Article
XI, rent shall be apportioned on a per diem basis and paid to the date of the
fire or other casualty.
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ARTICLE XII. EMINENT DOMAIN: If the whole of or any substantial part of the
Premises is taken by any public authority under the power of eminent domain, or
taken in any manner for any public or quasi-public use, so as to render the
remaining portion of the Premises unsuitable for the purposes intended
hereunder, then the term of this Lease shall cease as of the day possession
shall be taken by such public authority and Lessor shall make a pro rata refund
of any prepaid rent. All damages awarded for such taking under the power of
eminent domain or any like proceedings shall belong to and be the property of
Lessor, Lessee hereby assigning to Lessor Lessee's interest, if any, in said
award. In the event that fifty percent (50%) or more of the building area or
fifty percent (50%) or more of the value of the Office Complex is taken by
public authority under the power of eminent domain, then, at Lessor's option, by
written notice to Lessee mailed within thirty (30) days from the date possession
shall be taken by such public authority, Lessor may terminate this Lease
effective upon a date within thirty (30) days from the date of such notice to
Lessee. Further, if the whole of or any material part of the Premises is taken
by public authority under the power of eminent domain, or taken in any manner
for any public or quasi-public use, so as to render the remaining portion of the
Premises unsuitable for the purposes intended hereunder, upon delivery of
possession to the condemning authority pursuant to the proceedings, Lessee may,
at its option, terminate this Lease as to the remainder of the Premises by
written notice to Lessor, such notice to be given to Lessor within thirty (30)
days after Lessee receives notice of the taking. Lessee shall not have the right
to terminate this Lease pursuant to the preceding sentence unless (i) the
business of Lessee conducted in the portion of the Premises taken cannot be
carried on with substantially the same utility and efficiency in the remainder
of the Premises (or any substitute space securable by Lessee pursuant to clause
(ii) hereof); and (ii) Lessee cannot secure substantially similar (in Lessee' s
reasonable judgment) alternate space upon the same terms and conditions as set
forth in this Lease (including rental) from Lessor in the Office Complex. Any
notice of termination shall specify the date no more than sixty (60) days after
the giving of such notice as the date for such termination.
Anything in this Article XII to the contrary notwithstanding, Lessee
shall have the right to prove in any condemnation proceedings and to receive any
separate award which may be made for damages to or condemnation of Lessee's
movable trade fixtures and equipment and for moving expenses; provided, however,
Lessee shall in no event have any right to receive any award for its interest in
this Lease or for loss of leasehold; and, provided further, Lessee shall not be
entitled to claim any award to the extent the award to Lessor would be reduced
below the amount which would be allowed to Lessor absent such claim by Lessee.
Anything in this Article XII to the contrary notwithstanding, in the event of a
partial condemnation of the Office Complex or the Premises and this Lease is not
terminated, Lessor shall, at its sole cost and expense, restore the Premises and
Office Complex to a complete architectural unit and the Base Rent provided for
herein during the period from and after the date of delivery of possession
pursuant to such proceedings to the termination of this Lease shall be reduced
proportionately based upon the resulting rentable area of the Premises versus
the rentable area of the Premises prior to such taking.
ARTICLE XIII. SURRENDER OF PREMISES: On the last day of the term of this Lease,
or on the sooner termination thereof, Lessee shall peaceably surrender the
Premises in good condition and repair consistent with Lessee's duty to make
repairs as herein provided. On or before the last day of the term of this Lease,
or the date of sooner termination thereof, Lessee shall, at its sole cost and
expense, remove all of its property and trade fixtures and equipment from the
Premises, and all property not removed shall be deemed abandoned. Lessee hereby
appoints Lessor its agent to remove all property of Lessee from the Premises
upon termination of this Lease at the sole cost and risk of Lessee, and Lessor
shall not be liable for damage, theft, misappropriation or loss thereof and
Lessor
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shall not be liable in any manner in respect thereto. Lessee shall pay all costs
and expenses of such removal. Lessee shall leave the Premises in good order,
condition and repair, reasonable wear and tear and damage from fire and other
casualty not caused by Lessee excepted. Lessee shall reimburse Lessor upon
demand for any expenses incurred by Lessor with respect to removal,
transportation or storage of abandoned property and with respect to restoring
said Premises to good order, condition and repair. All improvements,
alterations, additions, installations and fixtures, other than Lessee's trade
fixtures and equipment, which have been made or installed by either Lessor or
Lessee upon the Premises shall remain the property of Lessor and shall be
surrendered with the Premises as a part thereof, unless Lessee is required to
remove same pursuant to the provisions of Article VIII hereof. Lessee shall
promptly surrender all keys for the Premises to Lessor at the place then fixed
for the payment of rent and shall inform Lessor of the combinations of any
vaults, locks and safes left on the Premises.
ARTICLE XIV. DEFAULT OF LESSEE: The occurrence of any one or more of the
following events (in this Article sometimes called "Event of Default") shall
constitute a default and breach of this Lease by Lessee:
A. If Lessee fails to pay any Base Rent or Additional Rent
payable under this Lease or fails to pay any obligation
required to be paid by Lessee when and as the same shall
become due and payable, and such default continues for a
period of ten (10) days after written notice thereof given by
Lessor to Lessee.
B. If Lessee fails to perform any of Lessee's nonmonetary
obligations under this Lease for a period of thirty (30) days
after written notice from Lessor; provided that if more time
is required to complete such performance, Lessee shall not be
in default if Lessee commences such performance within the
thirty-day period and thereafter diligently pursues its
completion. However, Lessor shall not be required to give such
notice if Lessee's failure to perform constitutes a
non-curable breach of this Lease. The notice required by this
subsection is intended to satisfy any and all notice
requirements imposed by law on Lessor and is not in addition
to any such requirement.
C. If Lessee, by operation of law or otherwise, violates the
provisions of Article X hereof relating to assignment,
sublease, mortgage or other transfer of Lessee's interest in
this Lease or in the Premises or in the income arising
therefrom.
D. If Lessee, by operation of law or otherwise, violates the
provisions of Article XVI.R relating to compliance with
environmental laws.
E. If (i) Lessee makes a general assignment or general
arrangement for the benefit of creditors; (ii) a petition for
adjudication of bankruptcy or for reorganization or
rearrangement is filed by or against Lessee and is not
dismissed within thirty (30) days; (iii) if a trustee or
receiver is appointed to take possession of substantially all
of Lessee's assets located at the Premises or of Lessee's
interest in this Lease and possession is not restored to
Lessee within thirty (30) days; or (iv) if substantially all
of Lessee's assets located at the Premises or of Lessee's
interest in this Lease is subjected to attachment, execution
or other judicial or nonjudicial seizure which is not
discharged within thirty (30) days. If a court of competent
jurisdiction determines that any of the acts described in this
subsection does not constitute an Event of Default and a
trustee is appointed to take possession (or if Lessee
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remains a debtor in possession) and such trustee or Lessee
transfers Lessee's interest hereunder, then Lessor shall
receive, as Additional Rent, the difference between the rent
(or any other consideration) paid in connection with such
assignment or sublease and the rent payable by Lessee
hereunder. As used in this subsection, the term "Lessee"
shall also mean any guarantor of Lessee's obligations under
this Lease. If any such Event of Default shall occur, Lessor,
at any time during the continuance of any such Event of
Default, may give written notice to Lessee stating that this
Lease shall expire and terminate on the date specified in such
notice, and upon the date specified in such notice this Lease,
and all rights of Lessee under this Lease, including all
rights of renewal whether exercised or not, shall expire and
terminate, or in the alternative or in addition to the
foregoing remedy, Lessor may assert and have the benefit of
any other remedy allowed herein, at law, or in equity.
Upon the occurrence of an Event of Default by Lessee, and at any time
thereafter, with or without notice or demand and without limiting Lessor in the
exercise of any right or remedy which Lessor may have, Lessor shall be entitled
to the rights and remedies set forth below:
A. Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall not terminate
unless Lessor gives written Notice to Lessee of its intention
to terminate this Lease and Lessee shall immediately surrender
possession of the Premises to Lessor. In such event, Lessor
shall have the immediate right to reenter and remove all
persons and property, and such property may be removed and
stored in a public warehouse or elsewhere at the cost of, and
for the account of Lessee, all without service of notice or
resort to legal process and without being deemed guilty of
trespass, or becoming liable for any loss or damage which may
be occasioned thereby. In the event that Lessor shall elect to
so terminate this Lease, then Lessor shall be entitled to
recover from Lessee all damages incurred by Lessor by reason
of Lessee's default, including:
1. The equivalent of the amount of the Base Rent and
Additional Rent which would be payable under this
Lease by Lessee if this Lease were still in effect,
less
2. The net proceeds of any reletting affected pursuant
to the provisions of this Article XIV hereof after
deducting all of Lessor's reasonable expenses in
connection with such reletting, including, without
limitation, all repossession costs, brokerage
commissions, legal expenses, reasonable attorneys'
fees, alteration costs, and expenses of preparation
of the Premises, or any portion thereof, for such
reletting.
Lessee shall pay such current damages in the amount determined
in accordance with the terms of this Article XIV as set forth
in a written statement thereof from Lessor to Lessee
(hereinafter called the "Deficiency"), to Lessor in monthly
installments on the days on which the rent would have been
payable under this Lease if this Lease were still in effect,
and Lessor shall be entitled to recover from Lessee each
monthly installment of the Deficiency as the same shall arise.
B. At any time after an Event of Default, whether or not Lessor
shall have collected any monthly Deficiency as set forth in
this Article XIV, Lessor shall be entitled to
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recover from Lessee, and Lessee shall pay to Lessor, on
demand, as and for final damages for Lessee's default, an
amount equal to the then present worth of the aggregate of the
Base Rent and Additional Rent and any other charges to be paid
by Lessee hereunder for the unexpired portion of the term of
this Lease (assuming this Lease had not been so terminated).
In the computation of present worth, a discount at the rate of
ten percent (10%) per annum shall be employed. If the
Premises, or any portion thereof, shall be relet by Lessor for
the unexpired term of this Lease, or any part thereof, before
presentation of proof of such damages to any court, commission
or tribunal, the amount of rent received upon such reletting
shall be offset against any monies claimed pursuant to this
subsection. Nothing herein contained or contained in this
Article XIV shall limit or prejudice the right of Lessor to
prove for and obtain, as damages, an amount equal to the
maximum allowed by any statute or rule of law in effect at the
time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be
greater, equal to or less than the amount of the difference
referred to above.
C. Upon the occurrence of an Event of Default by Lessee, Lessor
shall also have the right, with or without terminating this
Lease, to reenter the Premises to remove all persons and
property from the Premises. Such property may be removed and
stored in a public warehouse or elsewhere at the cost of and
for the account of Lessee. If Lessor shall elect to reenter
the Premises, Lessor shall not be liable for damages by reason
of such reentry.
D. If Lessor does not elect to terminate this Lease as provided
in this Article XIV then Lessor may, from time to time,
recover all rent as it becomes due under this Lease. At any
time thereafter, Lessor may elect to terminate this Lease and
to recover damages to which Lessor is entitled.
E. In the event that Lessor should elect to terminate this Lease
and to relet the Premises, it may execute any new lease in its
own name. In the event that Lessor should not elect to
terminate this Lease, it may re-let the Premises to a
substitute tenant at the then prevailing market rate. Lessee
hereunder shall have no right or authority whatsoever to
collect any rent from such substitute tenant. The proceeds of
any such reletting shall be applied as follows:
1. First, to the payment of any indebtedness other than
rent due hereunder from Lessee to Lessor, including
but not limited to storage charges or brokerage
commissions owing from Lessee to Lessor as the result
of such reletting;
2. Second, to the payment of the costs and expenses of
reletting the Premises, including repairs which were
required to be performed by Lessee and which Lessor,
in its sole discretion, deems reasonably necessary
and advisable and reasonable attorneys' fees incurred
by Lessor in connection with the retaking of the
Premises and such reletting;
3. Third, to the payment of rent and other charges due
and unpaid hereunder; and
4. Fourth, to the payment of future rent and other
damages payable by Lessee under this Lease.
Upon any Event of Default by Lessee, Lessor agrees to use commercially
reasonable efforts to mitigate the resulting damages.
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Lessee may contest the damage claim of Lessor, if Lessor fails to exert such
mitigation effort.
Lessor shall not be deemed to have terminated this Lease and the
Lessee's right to possession of the leasehold or the liability of Lessee to pay
rent thereafter to accrue or its liability for damages under any of the
provisions hereof, unless Lessor shall have notified Lessee in writing that it
has so elected to terminate this Lease. Lessee covenants that the retaking of
possession by Lessor or the service by Lessor of any notice pursuant to the
applicable unlawful detainer statutes of the state in which the Office Complex
is located and Lessee's surrender of possession pursuant to such notice shall
not (unless Lessor elects to the contrary at the time of, or at any time
subsequent to the service of, such notice, and such election be evidenced by a
written notice to Lessee) be deemed to be a termination of this Lease or of
Lessee's right to possession thereof.
All rights, options and remedies of Lessor contained in this Lease
shall be construed and held to be cumulative, and no one of them shall be
exclusive of the other, and Lessor shall have the right to pursue any one or all
of such remedies or any other remedy or relief which may be provided by law
whether or not stated in this Lease. No waiver by Lessor of a breach of any of
the terms, covenants or conditions of this Lease by Lessee shall be construed or
held to be a waiver of any succeeding or preceding breach of the same or any
other term, covenant or condition therein contained. No waiver of any default of
Lessee hereunder shall be implied from any omission by Lessor to take any action
on account of such default if such default persists or is repeated, and no
express waiver shall affect default other than as specified in said waiver. The
consent or approval by Lessor to or of any act by Lessee requiring Lessor's
consent or approval shall not be deemed to waive or render unnecessary Lessor's
consent to or approval of any subsequent similar acts by Lessee.
Lessee shall reimburse Lessor, upon demand, for any costs or expenses
incurred by Lessor in connection with any breach or default of Lessee under this
Lease, whether or not suit is commenced or judgment entered. Such costs shall
include, but not be limited to: legal fees and costs incurred for the
negotiation of a settlement, enforcement of rights or otherwise. Furthermore, if
any action for breach of or to enforce the provisions of this Lease is
commenced, the court in such action shall award to the party in whose favor a
judgment is entered a reasonable sum as attorneys' fees and costs. Such
attorneys' fees and costs shall be paid by the losing party in such action.
Lessee shall also indemnify Lessor against and hold Lessor harmless from all
costs, expenses, demands and liability incurred by Lessor if Lessor becomes or
is made a party to any claim or action (a) instituted by Lessee, or by any third
party against Lessee; (b) for foreclosure of any lien for labor or material
furnished to or for Lessee or such other person; (c) otherwise arising out of or
resulting from any act or transaction of Lessee or such other person; or (d)
necessary to protect Lessor's interest under this Lease in a bankruptcy
proceeding or other proceeding under Title 11 of the United States Code, as
amended. Lessee shall defend Lessor against any such claim or action at Lessee's
expense with counsel reasonably acceptable to Lessor or, at Lessor's election,
Lessee shall reimburse Lessor for any legal fees or costs incurred by Lessor in
any such claim or action.
In addition, Lessee shall pay Lessor's reasonable attorneys' fees
incurred in connection with Lessee's request for Lessor's consent in connection
with any act which Lessee proposed to do and which requires Lessor's consent.
Lessee hereby waives all claims by Lessor's reentering and taking
possession of the Premises or removing and storing the property of Lessee as
permitted under this Lease and will save Lessor harmless from all losses, costs
or damages occasioned Lessor
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thereby. No such reentry shall be considered or construed to be a forcible entry
by Lessor.
ARTICLE XV. SUBORDINATION: This Lease shall be subject and subordinate to any
mortgage, deed of trust or ground lease now or hereafter placed upon the
Premises, the Office Complex, the Property or any portion thereof by Lessor or
its successors or assigns, and to amendments, replacements, renewals and
extensions thereof. Lessee agrees at any time hereafter, upon demand, to execute
and deliver any instruments, releases or other documents that may be reasonably
required for the purpose of subjecting and subordinating this Lease, as above
provided, to the lien of any such mortgage, deed of trust or ground lease. It is
agreed, nevertheless, that as long as Lessee is not in default in the payment of
Base Rent, Additional Rent, and other charges to be paid by Lessee under this
Lease and in the performance of all covenants, agreements and conditions to be
performed by Lessee under this Lease, then neither Lessee's right to quiet
enjoyment under this Lease, nor the right of Lessee to continue to occupy the
Premises and to conduct its business thereon, in accordance with the terms of
this Lease as against any lessor, lessee, mortgagee, trustee or their successors
or assigns shall be disturbed.
The above subordination shall be effective without the necessity of the
execution and delivery of any further instruments on the part of Lessee to
effectuate such subordination. Notwithstanding anything hereinabove contained in
this Article XV, in the event the holder of any mortgage, deed of trust or
ground lease shall at any time elect to have this Lease constitute a prior and
superior lien to its mortgage, deed of trust or ground lease, then, and in such
event, upon any such holder or landlord notifying Lessee to that effect in
writing, this Lease shall be deemed prior and superior in lien to such mortgage,
deed of trust or ground lease, whether this Lease is dated prior to or
subsequent to the date of such mortgage, deed of trust or ground lease, and
Lessee shall execute such attornment agreement as may be reasonably requested by
said holder or Lessor.
Lessee agrees, provided the mortgagee, ground lessor or trust deed
holder under any mortgage, ground lease, deed of trust or other security
instrument shall have notified Lessee in writing (by the way of a notice of
assignment of lease or otherwise) of its address, that Lessee shall give such
mortgagee, ground lessor, trust deed holder or other secured party
("Mortgagee"), simultaneously with delivery of notice to Lessor, by registered
or certified mail, a copy of any such notice of default served upon Lessor.
Lessee further agrees that said Mortgagee shall have the right to cure any
alleged default during the same period that Lessor has to cure such default.
On or before the commencement of the term of this Lease, Lessor agrees
to provide an express "non-disturbance" agreement from the holder of any
mortgage or deed of trust in place as of such time.
ARTICLE XVI. MISCELLANEOUS:
A. Lessee represents that Lessee has dealt directly with and only
with Xxx & Associates (Xxxxx Xxxxxxx and Xxxx Xxxxx) , as broker, in connection
with this Lease and that insofar as Lessee knows, no other broker negotiated or
participated in negotiations of this Lease or submitted or showed the Premises
or is entitled to any commission in connection therewith. Lessor and Lessee
agree that no broker shall be entitled to any commission in connection with any
renewal of the term of this Lease. Lessor shall pay the commission, if any, owed
to the "broker" named above for any expansion of the Premises.
B. Lessee agrees from time to time, upon not less than ten (10)
business days prior written request by Lessor, to deliver to Lessor a statement
in writing certifying (i) this Lease is
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unmodified and in full force and effect (or if there have been modifications
that the Lease as modified is in full force and effect and stating the
modifications); (ii) the dates to which the rent and other charges have been
paid; (iii) Lessor is not in default in any provision of this Lease or, if in
default, the nature thereof specified in detail; (iv) the amount of monthly
rental currently payable by Lessee; (v) the amount of any prepaid rent, and (vi)
such other factual matters as may be reasonably requested by Lessor or any
Mortgagee or prospective purchaser of the Office Complex.
If Lessee does not deliver such statement to Lessor within such ten
(10) day period, Lessor and any prospective purchaser or encumbrancer of the
Premises or the Office Complex may conclusively presume and rely upon the
following facts: (i) that the terms and provisions of this Lease have not been
changed except as otherwise represented by Lessor; (ii) that this Lease has not
been canceled or terminated and is in full force and effect, except as otherwise
represented by Lessor; (iii) that the current amounts of the Base Rent and
security deposit are as represented by Lessor and that any charges made against
the security deposit are uncontested and valid; (iv) that there have been no
subleases or assignments of the Lease; (v) that not more than one month's Base
Rent or other charges have been paid in advance; and (vi) that Lessor is not in
default under the Lease. In such event, Lessee shall be estopped from denying
the truth of such facts.
C. All notices, demands and requests shall be in writing, and
shall be effectively served by forwarding such notice, demand or request by
certified or registered mail, postage prepaid, or by commercial overnight
courier service addressed as follows:
(i) If addressed to Lessee:
JDA Software Group, Inc.
00000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx, CFO
with a copy to:
JDA Software Group, Inc.
00000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxx, General Counsel
(ii) If addressed to Lessor:
Opus West Corporation
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, President
with a copy to:
Opus U.S. Corporation
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxx, Esq.
and with a copy to:
Opus West Management Corporation
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Property Manager
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and with a copy to:
Xxxxxxxxx & Xxxxxxx, P.A.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xx. Xxxxxxx X. Xxxx
or at such other addresses as Lessor and Lessee may hereafter designate by
written notice. The effective date of all notices shall be the time of mailing
such notice or the date of delivery to a commercial overnight courier service.
D. All rights and remedies of Lessor under this Lease or that may
be provided by law may be executed by Lessor in its own name, individually, or
in the name of its agent, and all legal proceedings for the enforcement of any
such rights or remedies, including those set forth in Article XIV, may be
commenced and prosecuted to final judgment and execution by Lessor in its own
name or in the name of its agent.
X. Xxxxxx covenants and agrees that Lessee, upon paying the Base
Rent, Additional Rent and other charges herein provided for and observing and
keeping the covenants, agreements and conditions of this Lease on its part to be
kept and performed, shall lawfully and quietly hold, occupy and enjoy the
Premises during the term of this Lease. Time is of the essence of this Lease and
each and every provision contained herein, and any extension of time granted by
Lessor to Lessee for the performance of any obligation of Lessee under this
Lease shall not be considered an extension of time for the performance of any
subsequent obligation of Lessee under this Lease.
F. The covenants and agreements herein contained shall bind and
inure to the benefit of Lessor and its successors and assigns and Lessee and its
permitted successors and assigns. All obligations of each party constituting
Lessee hereunder shall be the joint and several obligations of each such party.
G. If any term or provision of this Lease shall to any extent be
held invalid or unenforceable, the remaining terms and provisions of this Lease
shall not be affected thereby, but each term and provision of this Lease shall
be valid and enforced to the fullest extent permitted by law. This Lease shall
be construed and enforced in accordance with the laws of the state in which the
Premises are located.
H. Lessee covenants not to do or suffer any waste or damage or
disfigurement or injury to the Premises or the Office Complex and Lessee further
covenants that it will not vacate or abandon the Premises during the term of
this Lease.
I. The term "Lessor" as used in this Lease so far as covenants or
obligations on the part of Lessor are concerned shall be limited to mean and
include only the owner or owners of the Office Complex at the time in question,
and in the event of any transfer or transfers or conveyances and an assumption
by the assignor or successor of the obligation of "Lessor" herein, the then
grantor shall be automatically freed and released from all personal liability
accruing from and after the date of such transfer or conveyance as respects the
performance of any covenant or obligation on the part of Lessor contained in
this Lease to be performed, it being intended hereby that the covenants and
obligations contained in this Lease on the part of Lessor shall be binding on
the Lessor, its successors and assigns, only during and in respect to their
respective successive periods of ownership.
In the event of a sale or conveyance by Lessor of the Office Complex or
any part of the Office Complex, the same shall operate to release Lessor from
any future liability upon any of the covenants or conditions herein contained
and in such event Lessee agrees to look solely to the responsibility of the
successor in
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interest of Lessor in and to this Lease. This Lease shall not be affected by any
such sale or conveyance, and Lessee agrees to attorn to the purchaser or
grantee, which purchaser or grantee shall be personally obligated on this Lease
only so long as it is the owner of Lessor's interest in and to this Lease.
J. The marginal or topical headings of the several Articles are
for convenience only and do not define, limit or construe the contents of said
Articles.
K. All preliminary negotiations are merged into and incorporated
in this Lease, except for written collateral agreements executed
contemporaneously herewith.
L. This Lease can only be modified or amended by an agreement in
writing signed by the parties hereto. No receipt of money by Lessor from Lessee
or any other person after termination of this Lease or after the service of any
notice or after the commencement of any suit, or after final judgment for
possession of the Premises, shall reinstate, continue or extend the term of this
Lease or affect any such notice, demand or suit, or imply consent for any action
for which Lessor's consent is required, unless specifically agreed to in writing
by Lessor. Any amounts received by Lessor may be allocated to any specific
amounts due from Lessee to Lessor as Lessor determines.
X. Xxxxxx shall have the right to close any portion of the
building area or land area to the extent as may, in Lessor's reasonable opinion,
be necessary to prevent a dedication thereof or the accrual of any rights to any
person or the public therein. Lessor shall at all times have full control,
management and direction of the Office Complex, subject to the rights of Lessee
in the Premises, and subject to the approval of Lessee, which approval shall not
be unreasonably withheld, Lessor reserves the right at any time and from time to
time to reduce, increase, enclose or otherwise change the size, number and
location of buildings, layout and nature of the Office Complex, to construct
additional buildings and additions to any building, and to create additional
rentable areas through use and/or enclosure of common areas, or otherwise, and
to place signs on the Office Complex. No implied easements are granted by this
Lease.
N. Lessee shall permit Lessor (or its designees), upon not less
than twenty-four (24) hours advance notice, to erect, use, maintain, replace and
repair pipes, cables, conduits, plumbing, vents, and telephone, electric and
other wires or other items, in, to and through the Premises, as and to the
extent that Lessor may now or hereafter deem necessary or appropriate for the
proper operation and maintenance of the Office Complex, but without material
disruption to Lessee's use and enjoyment of the Premises.
O. Employees or agents of Lessor have no authority to make or
agree to make a lease or other agreement or undertaking in connection herewith.
The submission of this document for examination does not constitute an offer to
lease, or a reservation of, or option for, the Premises. This document becomes
effective and binding only upon the execution and delivery hereof by the proper
officers of Lessor and by Lessee. Lessee confirms that Lessor and its agents
have made no representations or promises with respect to the Premises or the
making of or entry into this Lease except as in this Lease expressly set forth,
and Lessee agrees that no claim or liability shall be asserted by Lessee against
Lessor for, and Lessor shall not be liable by reason of, breach of any
representations or promises not expressly stated in this Lease. This Lease,
except for the Building Rules and Regulations, in respect to which subparagraph
P of this Article shall prevail, can be modified or altered only by agreement in
writing between Lessor and Lessee, and no act or omission of any employee or
agent of Lessor shall alter, change or modify any of the provisions hereof.
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P. Lessee shall perform, observe and comply with the Building
Rules and Regulations of the Office Complex as set forth on Exhibit B attached
hereto and by this reference incorporated herein, with respect to the safety,
care and cleanliness of the Premises and the Office Complex, and the
preservation of good order thereon, and, upon written notice thereof to Lessee,
Lessee shall perform, observe and comply with any changes, amendments or
additions thereto as from time to time shall be established and deemed advisable
by Lessor for tenants of the Office Complex. Lessor shall not be liable to
Lessee for any failure of any other tenant or tenants of the Office Complex to
comply with such Building Rules and Regulations. Lessor shall enforce such
Building Rules and Regulations in a reasonable, uniform and nondiscriminatory
manner.
Q. Neither party shall use the Premises or permit (which, in the
case of Lessor, shall require knowledge and consent) anything to be done in or
about the Premises which will, in any way, conflict with any law, statute,
ordinance or governmental rule or regulation now in force or which may hereafter
be enacted or promulgated. Lessee shall, at its sole cost and expense, promptly
comply with all laws, statutes, ordinances and governmental rules and
regulations now in force or which may hereafter be in force, including, without
limitation, those pertaining to indoor air quality, and with the requirements of
any fire insurance underwriters or other similar body now or hereafter
constituted relating to or affecting the condition, use or occupancy of the
Premises. Lessee shall use the Premises and comply with any recorded covenants,
conditions, and restrictions affecting the Premises and the Office Complex as of
the commencement of the Lease or which are recorded during the lease term.
R. Neither party shall (either with or without negligence) cause
or permit (which, in the case of Lessor, shall require knowledge and consent)
the escape, disposal or release of any biologically or chemically active or
other hazardous substances or materials. Lessee shall not allow the storage or
use of such substances or materials in any manner not sanctioned by law and by
the highest standards prevailing in the industry for the storage and use of such
substances or materials, nor allow to be brought into the Office Complex any
such materials or substances except to use in the ordinary course of Lessee's
business, and then only after written notice is given to Lessor of the identity
of such substances or materials. Without limitation, hazardous substances and
materials shall include those described in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9601 et seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C.
Section 6901 et seq., any applicable state or local laws and the regulations
adopted under these acts. If any lender or governmental agency shall ever
require testing to ascertain whether or not there has been any release of
hazardous materials, then the reasonable costs thereof shall be reimbursed by
Lessee to Lessor upon demand as additional charges if such requirement applies
to the Premises. In addition, Lessee shall execute affidavits, representations
and the like from time to time at Lessor's request concerning Lessee's best
knowledge and belief regarding the presence of hazardous substances or materials
on the Premises. In all events, Lessee shall indemnify Lessor in the manner
elsewhere provided in this Lease from any release of hazardous materials on the
Premises occurring while Lessee is in possession, or elsewhere if caused by
Lessee or persons acting under Lessee. The within covenants shall survive the
expiration or earlier termination of the term of this Lease.
S. All obligations of Lessee hereunder not fully performed as of
the expiration or earlier termination of the term of this Lease shall survive
the expiration or earlier termination of the term hereof, including, without
limitation, all payment obligations with respect to Operating Expenses and Real
Estate Taxes and all obligations concerning the condition of the Premises.
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T. Any claim which Lessee may have against Lessor for default in
performance of any of the obligations herein contained to be kept and performed
by Lessor shall be deemed waived unless such claim is asserted by written notice
thereof to Lessor within thirty (30) days of commencement of the alleged default
or of accrual of the cause of action. Furthermore, Lessee agrees to look solely
to Lessor's interest in the Office Complex, including the rents therefrom, for
the recovery of any judgment from Lessor, it being agreed that Lessor, or if
Lessor is a partnership, its partners whether general or limited, or if Lessor
is a corporation, its directors, officers or shareholders, or if Lessor is a
limited liability company, its members, shall never be_ personally liable for
any such judgment.
U. Lessee shall furnish to Lessor promptly upon demand, a
corporate resolution, proof of due authorization of partners, or other
appropriate documentation reasonably requested by Lessor evidencing the due
authorization of Lessee to enter into this Lease.
V. This Lease shall not be deemed or construed to create or
establish any relationship or partnership or joint venture or similar
relationship or arrangement between Lessor and Lessee hereunder.
W. Lessee shall in all respects comply with the Americans With
Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.), as the same may be
amended from time to time (as amended, the "ADA"), and Lessee agrees to
indemnify and save Lessor and its managing agent harmless against and from any
and all claims, loss, damage and expense by or on behalf of any person or
persons, firm or firms, corporation or corporations, arising from any failure or
alleged failure of Lessee to comply with the ADA or arising from any claim made
under the ADA in connection with the Premises, and from and against all costs,
reasonable attorneys' fees, expenses and liabilities incurred in or about any
such claim or action or proceeding brought thereon; in case any action or
proceeding be brought against Lessor or its managing agent by reason of any such
claim. Lessee, upon notice from Lessor, covenants to resist or defend such
action or proceeding by counsel reasonably satisfactory to Lessor.
X. Lessee shall not place, or permit to be placed or maintained,
on any exterior door, wall or window of the Premises any sign, awning or canopy,
or advertising matter or other thing of any kind, and will not place or maintain
any decoration, lettering or advertising matter on the glass of any window or
door, or that can be seen through the glass, of the Premises except as
specifically approved in writing by Lessor. Lessee further agrees to maintain
such sign, awning, canopy, decoration, lettering, advertising matter or thing as
may be approved, in good condition and repair at all times. Lessee agrees at
Lessee's sole cost, that any Lessee sign will be maintained in strict
conformance with Lessor's sign criteria, if any, as to design, material, color,
location, size, letter style, and method of installation.
ARTICLE XVII. MISCELLANEOUS TAXES: Lessee shall pay, prior to delinquency, all
taxes assessed or levied upon its occupancy of the Premises, or upon the trade
fixtures, furnishings, equipment and all other personal property of Lessee
located in the Premises, and when possible. Lessee shall cause such trade
fixtures, furnishings, equipment and other personal property to be assessed and
billed separately from the property of Lessor. In the event any or all of
Lessee's trade fixtures, furnishings, equipment or other personal property, or
Lessee's occupancy of the Premises, shall be assessed and taxed with the
property of Lessor, Lessee shall pay to Lessor its share of such taxes within
ten (10) days after delivery to Lessee by Lessor of a statement in writing
setting forth the amount of such taxes applicable to Lessee's personal property.
ARTICLE XVIII. OTHER PROVISIONS: The following are made a part hereof, with the
same force and effect as if specifically set forth herein:
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A. Site Plan - Exhibit A.
A-l. Floor Plan - Exhibit A-l
A-2. Phase II Site Plan - Exhibit A-2
B. Building Rules and Regulations - Exhibit B.
C. Rider To Lease - Exhibit C.
D. [RESERVED]
E. Total Project Cost Illustrative Calculation - Exhibit E.
F. Base Building Plans - Exhibit F
IN WITNESS WHEREOF, the parties have executed this Lease as of the day
and year first above written.
LESSOR: LESSEE:
OPUS WEST CORPORATION, a JDA SOFTWARE GROUP, INC., a
Minnesota corporation Delaware corporation
By /s/ Xxxxxx X. Xxxxxxx By /s/ JM PAD
-------------------------------- ---------------------------
Xxxxxx X. Xxxxxxx Name FREDERACK M. PATIS
Its President Print _____________________
Its: Co-Chairman
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-32-
EXHIBIT A
SITE PLAN
[PHASE ONE SITE PLAN]
Phase One
10.13 acres net
136,000 sf rentable
816 spaces(6.0:1000 rent.)
[DFD LOGO] Northsight Office [OPUS LOGO]
DFD Architecture Scottsdale, Arizona
0000 X, 00xx Xxxxxx, Xxxxx 000
Xxxxxxx Xxxxxxx 00000
Phone (000) 000-0000
FAX (000) 000-0000
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Exhibit A
(Page 1 of 1)
EXHIBIT A-1
FLOOR PLAN
[FIRST FLOOR PLAN]
[OPUS LOGO] FIRST FLOOR
OPUS Architects & Engineers, Inc,.
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Exhibit A-1
(Page 1 of 3)
EXHIBIT A-1
FLOOR PLAN
[SECOND FLOOR PLAN]
[OPUS LOGO] SECOND FLOOR
OPUS Architects & Engineers, Inc,.
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Exhibit A-1
(Page 2 of 3)
EXHIBIT A-1
FLOOR PLAN
[THIRD FLOOR PLAN]
[OPUS LOGO] THIRD FLOOR
OPUS Architects & Engineers, Inc,.
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Exhibit A-1
(Page 3 of 3)
EXHIBIT A-2
PHASE II SITE PLAN
[PHASE TWO SITE PLAN]
Phase Two(A)
15.0 acres net
272,000 af rentable
1,632 spaces(6.0:1000 rent.)
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Exhibit A-2
(Page 1 of 1)
EXHIBIT B
BUILDINGS RULES AND REGULATIONS
1. Any sign, lettering, picture, notice or advertisement
installed on or in any part of the Premises and visible from the exterior of the
Office Complex, or visible from the exterior of the Premises, shall be installed
at Lessee's sole cost and expense, and in such manner, character and style as
Lessor may approve in writing. In the event of a violation of the foregoing by
Lessee, Lessor may remove the same without any liability and may charge the
expense incurred by such removal to Lessee.
2. No awning or other projection shall be attached to the outside
walls of the Office Complex. No curtains, blinds, shades or screens visible from
the exterior of the Office Complex or visible from the exterior of the Premises
shall be attached to or hung in, or used in connection with, any window or door
of the Premises without the prior written consent of Lessor. Such curtains,
blinds, shades, screens or other fixtures must be of a quality, type, design and
color, and attached in the manner, approved by Lessor.
3. Lessee and its servants, employees, customers, invitees and
guests shall not obstruct sidewalks, entrances, passages, corridors, vestibules,
halls, elevators or stairways in and about the Office Complex which are used in
common with other tenants and their servants, employees, customers, guests and
invitees and which are not a part of the Premises of Lessee. Lessee shall not
place objects against glass partitions or doors or windows which would be
unsightly from the Office Complex corridors or from the exterior of the Office
Complex and will promptly remove any such objects upon notice from Lessor.
4. Lessee shall not make excessive noises, cause disturbances or
vibrations or use or operate any electrical or mechanical devises that emit
excessive sound or other waves or disturbances, and Lessee shall not create
obnoxious odors (including cigarette, cigar and pipe smoke), any of which may be
offensive to the other tenants and occupants of the Office Complex, or that
would interfere with the operation of any device, equipment, radio, television
broadcasting or reception from or within the Office Complex or elsewhere and
shall not place or install any projections, antennas, aerials or similar devices
inside or outside of the Premises or on the Office Complex.
5. Lessee shall not waste electricity, water or air conditioning
and shall cooperate fully with Lessor to insure the most effective operation of
the Office Complex's heating and air conditioning systems and shall refrain from
attempting to adjust any controls other than unlocked room thermostats, if any,
installed for Lessee's use. Lessee shall keep corridor doors closed.
6. Lessee assumes full responsibility for protecting its space
from theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed and secured after normal business hours.
7. No person or contractor not employed by Lessor shall be used
to perform janitorial work, window washing, cleaning, maintenance, repair or
similar work in the Premises without the written consent of Lessor.
8. In no event shall Lessee bring into the Office Complex
inflammables, such as gasoline, kerosene, naphtha and benzine, or explosives or
any other article of intrinsically dangerous nature. If, by reason of the
failure of Lessee to comply with the provisions of this subparagraph, any
insurance premium for all or
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Exhibit B
(Page 1 of 4)
any part of the Office Complex shall at any time be increased, Lessee shall make
immediate payment of the whole of the increased insurance premium, without
waiver of any of Lessor's other rights at law or in equity for Lessee's breach
of this Lease.
9. Lessee shall comply with all applicable federal, state and
municipal laws, ordinances and regulations and building rules and shall not
directly or indirectly make any use of the Premises which may be prohibited by
any of the foregoing or which may be dangerous to persons or property or may
increase the cost of insurance or require additional insurance coverage.
10. Lessor shall have the right to prohibit any advertising by
Lessee which in Lessor's reasonable opinion tends to impair the reputation of
the Office Complex or its desirability as an office complex for general office
use, and upon written notice from Lessor, Lessee shall refrain from or
discontinue such advertising.
11. The Premises shall not be used for lodging, sleeping or for
any immoral or illegal purpose.
12. Lessee and Lessee's servants, employees, agents, visitors and
licensees shall observe faithfully and comply strictly with the foregoing rules
and regulations and such other and further appropriate rules and regulations as
Lessor or Lessor's agent may from time to time adopt. Reasonable notice of any
additional rules and regulations shall be given in such manner as Lessor may
reasonably elect.
13. Unless expressly permitted by Lessor, no additional locks or
similar devices shall be attached to any door or window and no keys other than
those provided by Lessor shall be made for any door. If more than two keys for
one lock are desired by Lessee, Lessor may provide the same upon payment by
Lessee. Upon termination of this Lease or of Lessee's possession, Lessee shall
surrender all keys of the Premises and shall explain to Lessor all combination
locks on safes, cabinets and vaults.
14. Any carpeting cemented down by Lessee shall be installed with
a releasable adhesive. In the event of a violation of the foregoing by Lessee,
Lessor may charge the expense incurred by such removal to Lessee.
15. The water and wash closets, drinking fountains and other
plumbing fixtures shall not be used for any purpose other than those for which
they were constructed, and no sweepings, rubbish, rags, coffee grounds or other
substances shall be thrown therein. All damages resulting from any misuse of the
fixtures shall be borne by the lessee who, or whose servants, employees, agents,
visitors or licensees, shall have caused the same. No person shall waste water
by interfering or tampering with the faucets or otherwise.
16. No electrical circuit for any purpose shall be brought into
the Premises without Lessor's written permission specifying the manner in which
same may be done.
17. No dog (other than seeing eye dogs) or other animal, shall be
allowed in offices, halls, corridors or elsewhere in the Office Complex. No
bicycles or other vehicles shall be allowed in the Buildings of the Office
Complex.
18. Lessee shall not throw anything out of the door or windows or
down any passageways or elevator shafts.
19. All loading, unloading, receiving or delivery of goods,
supplies or disposal of garbage or refuse shall be made only through entryways
and freight elevators provided for such purposes and indicated by Lessor. Lessee
shall be responsible for any damage to the Office Complex or the property of its
employees or
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Exhibit B
(Page 2 of 4)
others and injuries sustained by any person whomsoever resulting from the use or
moving of such articles in or out of the Premises, and shall make all repairs
and improvements required by Lessor or governmental authorities in connection
with the use of such articles.
20. All safes, equipment or other heavy articles shall be carried
in or out of the Premises only at such time and in such manner as shall be
prescribed in writing by Lessor, and Lessor shall in all cases have the right to
specify the proper position of any such safe, equipment or other heavy article,
which shall only be used by Lessee in a manner which will not interfere with or
cause damage to the Premises or the Office Complex or to the other tenants or
occupants of the Office Complex. Lessee shall be responsible for any damage to
the Office Complex or the property of its employees or others and injuries
sustained by any person whomsoever resulting from the use or moving of such
articles in or out of the Premises, and shall make all repairs and improvements
required by Lessor or governmental authorities in connection with the use or
moving of such articles.
21. Canvassing, soliciting and peddling in the Office Complex is
prohibited and all tenants of the Office Complex shall cooperate to prevent the
same.
22. Vending machines shall not be installed without permission of
Lessor; provided, however, Lessor consents to the installation of vending
machines in the pantry or kitchen area of the Premises for the dispensing of
soda and other similar drinks to Lessee's employees and guests.
23. Wherever in these Building Rules and Regulations the word
"Lessee" occurs, it is understood and agreed that it shall mean Lessee and
Lessee's associates, agents, clerks, servants and visitors. Wherever the word
"Lessor" occurs, it is understood and agreed that it shall mean Lessor and
Lessor's assigns, agents, clerks, servants and visitors.
24. Lessor shall have the right, upon twenty-four (24) hours
advance notice, to enter upon the Premises at all reasonable hours for the
purpose of inspecting the same, provided that Lessor shall not disrupt
materially, Lessee's use and enjoyment of the Premises as a result.
25. Lessee and its servants, employees, customers, invitees and
guests shall, when using the common parking facilities, if any, in and around
the Office Complex, observe and obey all signs regarding fire lanes and no
parking zones, and when parking, shall always park between the designated lines.
Lessor reserves the right to tow away, at the expense of the owner, any vehicle
which is improperly parked or parked in a no parking zone. All vehicles shall be
parked at the sole risk of the owner, and Lessor assumes no responsibility for
any damage to or loss of vehicles. No vehicles shall be parked overnight for
more than three (3) consecutive days).
26. At all times Lessee shall have access to the Premises,
however, the Office Complex shall be in the control of Lessor's employee in
charge and (a) persons may enter the Office Complex only in accordance with
Lessor's regulations, (b) persons entering or departing from the Office Complex
may be questioned as to their business in the Office Complex, and the right is
reserved to require the use of an identification card or other access device and
the registering of such persons as to the hour of entry and departure, nature of
visit, and other information deemed necessary for the protection of the Office
Complex, and (c) all entries into and departures from the Office Complex will
take place through one or more entrances as Lessor shall from time to time
designate; provided, however, anything herein to the contrary notwithstanding,
Lessor shall not be liable for any lack of security in respect to
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Exhibit B
(Page 3 of 4)
the Office Complex whatsoever. Lessor will normally not enforce clauses (a), (b)
and (c) above from 7:00 a.m., to 6:00 p.m., Monday through Friday, and from 8:00
a.m. to 1:00 p.m. on Saturdays, but it reserves the right to do so or not to do
so at any time at its sole discretion. In case of invasion, mob, riot, public
excitement or other commotion, Lessor reserves the right to prevent access to
the Office Complex during the continuance of the same by closing the doors or
otherwise, for the safety of the tenants or the protection of the Office Complex
and the property therein. Lessor shall in no case be liable for damages for any
error or other action taken with regard to the admission to or exclusion from
the Office Complex of any person.
27. All entrance doors to the Premises shall be locked when the
Premises are not in use. All corridor doors shall also be closed during times
when the air conditioning equipment in the Office Complex is operating so as not
to dissipate the effectiveness of the system or place an overload thereon.
28. Lessor reserves the right at any time and from time to time to
rescind, alter or waive, in whole or in part, any of these Building Rules and
Regulations when it is deemed necessary, desirable or proper, in Lessor's
judgment, for its best interest or for the best interest of the tenants of the
Office Complex.
29. Smoking shall be permitted only in the smoking areas located
outside of the building, as designated and redesignated from time to time by
Lessor, and Lessee and its servants, employees, customers, invitees and guests
shall not smoke anywhere at the Office Complex (other than the smoking areas
designated by Lessor), including without limitation Lessee's Premises and the
sidewalks, entrances, passages, corridors, halls, elevators and stairways of the
Office Complex.
Initials:
Lessor_______________
Lessee_______________
Scottsdale Northsight/JDA Software
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Exhibit B
(Page 4 of 4)
EXHIBIT C
RIDER TO OFFICE LEASE
SCOTTSDALE NORTHSIGHT/JDA SOFTWARE GROUP, INC.
ARTICLE XX. LESSOR'S REPRESENTATIONS: Lessor represents and warrants to Lessee
as follows:
(a) Upon commencement of the term of this Lease, the Premises,
Building and Office Complex shall be constructed substantially in accordance
with the plans and specifications therefor, as described on Exhibit "F" hereto,
or as otherwise approved by Lessee. Such plans and specifications will comply
with all codes, ordinances, regulations and laws (including, without limitation,
the ADA) governing the construction of the Premises, Building and Office
Complex, as existing, enforced and interpreted as of the date of the issuance of
the applicable building or construction permit.
(b) Lessor will not incorporate into construction of the Premises
any "hazardous materials" (as contemplated in Article XVI.R), the use of which
is prohibited in construction of projects of the nature of the Building under
applicable state and federal laws, rules and regulations in effect and as
interpreted and enforced at the time construction is performed. Lessor will not
incorporate into construction of the Premises any materials which are generally
known to the construction industry at the time construction is performed to
contain hazardous material in a manner contrary to applicable federal and state
laws, rules and regulations and material safety data sheets. Upon request of
Lessee, Lessor shall provide Lessee with a copy of the Phase I Environmental
Assessment for the Building and the Property on which it is located.
(c) Subject to force majeure and Lessee's obligation to pay Rent,
Lessor shall cause the Office Complex to be managed, as a "Class A" project (as
that characterization is known and defined in the regional area of Scottsdale,
Arizona in which the Office Complex is located) and in a cost effective manner.
(d) The Building and Premises shall be constructed to maintain an
airflow and air quality consistent with the ASHREI standards applicable to a
"Class A" office building (as recognized in the greater metropolitan Scottsdale
area as of the date of this Lease), as such standards exist and are applied as
of the date of issuance of the construction permits for the Building.
(e) Lessor shall make no substantial changes to the site plan of
the Office Complex (as attached as Exhibit "A", hereto), without the approval of
Lessee, which approval shall not be unreasonably withheld.
ARTICLE XXI. DETERMINATION OF AREA OF PREMISES. Lessee shall lease from Lessor
the entire second (2nd) and third (3rd) floors of the Building, which as of the
date hereof, the parties agree to be approximately 95,000 rentable square feet
as the "Premises". By notice to Lessor, given prior to the date of the permit
(to be issued by the City of Scottsdale) to construct the Building (such date
herein called the "Permit Date"), Lessee may designate the Premises to include
an additional area located on the first (1st) floor of the Building, but, as a
result of, the expanded "Premises" shall not exceed 115,000 rentable square feet
in area.
ARTICLE XXII. LOCK BOX: Lessor may from time to time designate a lock box
collection agent for the collection of rents or other charges due Lessor. In
such event, the payment made by Lessee to the lock box shall be the date of
receipt by the lock box collection agent of such payment (or the date of
collection of any such
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Exhibit C
(Page 1 of 14)
sum if payment is made in the form of a negotiable instrument thereafter
dishonored upon presentment); however, for the purpose of this Lease, no such
payment or collection shall be deemed a waiver by Lessor of any breach by Lessee
of any term, covenant or condition of this Lease nor a waiver of any of Lessor's
rights or remedies and any payment of amounts other than that deemed due and
proper by Lessor shall not prejudice Lessor in any manner nor constitute a
waiver and Lessor shall hereby be authorized to retain the proceeds of any
payments by Lessee, whether restrictively endorsed or otherwise, and apply same
to the amounts due and payable from Lessee under this Lease without waiver.
ARTICLE XXIII. PRIOR PROPOSALS: All prior proposals in respect to this Lease are
hereby terminated.
ARTICLE XXIV. USE: Lessee shall use the Premises only for general office
purposes. Notwithstanding anything to the contrary contained in this Lease,
during the term of this Lease and any extensions or renewals, Lessee shall not
use or permit any portion of the Premises to be used for (i) the operation of a
title company or title agency or for providing services typically offered by
escrow agents in connection with real estate transactions, or (ii) the discount
or retail sale and/or brokerage of securities and/or commodities, or (iii) the
operation of a bank or the provision of trust services (collectively, the
"Restricted Uses").
Lessee shall comply with the terms of any encumbrances, covenants,
conditions, restrictions or other matters now of record or hereafter recorded
against the Office Complex.
ARTICLE XXV. CONFIDENTIALITY: Lessee agrees to keep this Lease and the terms
hereof in confidence, and not to publish or disclose, in whole or in part, the
same without Lessor's prior written consent, which consent may be withheld in
Lessor's sole discretion. This covenant of confidentiality shall include,
without limitation, all information disclosed by Lessor pursuant to the "open
book" understanding regarding the costs of the Total Project Costs. Accordingly,
all such information and disclosures shall be limited to dissemination only
among the executive officers and the construction manager of Lessee and each
such person shall be informed of this confidentiality covenant.
ARTICLE XXVI. DEFAULT OF LESSOR: In the event of any alleged breach by Lessor of
its covenants contained in this Lease, Lessee shall have available all rights
and remedies provided at law or in equity, subject to the terms and conditions
of this Lease; provided, however, Lessee may not exercise any such right or
remedy unless Lessee has notified Lessor and any party to whom notice is
required to be given pursuant to Article XV by notice of such alleged default,
and the notified party or parties have not cured such default within the thirty
(30) day period subsequent to receipt of such notice by Lessee or, in the event
such alleged default is of such a nature that it cannot reasonably be cured
within such thirty-day period, such notified party or parties have failed to
cure such alleged default with all due diligence.
ARTICLE XXVII. FINANCIAL STATEMENTS: Lessee agrees to provide to Lessor upon
Lessee's execution of this Lease and prior to Lessor executing same, and within
thirty (30) days after Lessor's request therefor at any time during the term of
this Lease, complete, accurate financial statements, currently available,
prepared according to generally accepted accounting principles consistently
applied, certified by Lessee's chief financial officer as an officer of Lessee
that same are a true, complete and correct statement of the financial condition
of Lessee as of the date of such financial statements.
ARTICLE XXVIII. COMMENCEMENT DATE MEMORANDUM; MEASUREMENT OF RENTABLE AREA:
Lessee acknowledges that the Office Complex is not constructed as of the date of
this Lease and that the Base Rent,
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Exhibit C
(Page 2 of 14)
Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses, the Tenant
Improvement Allowance, and certain other items set forth in this Lease will be
calculated based on the useable area of the Premises, the rentable area of the
Premises, and the rentable area of the Office Complex. Further, Lessee has
certain rights to modify the total rentable area of the Premises after execution
of this Lease.
Promptly after the commencement of the ten-year term of this Lease, a
memorandum (the "Commencement Date Memorandum") shall be prepared by Lessor and
executed by Lessor and Lessee. The Commencement Date Memorandum shall set forth
the date on which the term of this Lease commenced, the expiration date of the
initial ten-year term, the rentable area of the Premises, and the rentable area
of the Office Complex (all as certified by Lessor's architect), the Base Rent,
and the percentage initially to be used to calculate Lessee's Pro Rata Share of
Real Estate Taxes and Operating Expenses.
Lessor's architect shall calculate and determine the rentable area of
the Premises and the Office Complex in accordance with ANSI/BOMA Z65.1 approved
June 7, 1996. Such calculation and determination may be verified by Lessee
within thirty (30) days of receipt.
ARTICLE XXIX. FUTURE DEVELOPMENT: Lessor and Lessee understand and agree that
the Office Complex as initially constructed is the first phase ("Phase I") of a
proposed two-phase integrated commercial real estate development (the second
phase is hereinafter referred to as "Phase II"). Phase II may be constructed by
Lessor, if at all, only upon the approval of Lessee, which approval may be
conditioned upon adequate assurance regarding the staging of construction and
the provision of parking during the construction. Upon substantial completion of
Phase II, the Office Complex for purposes of this Lease may, at Lessor's option,
include all of the land within Phase II and all easement areas appurtenant
thereto, and all buildings, improvements and personal property of Lessor used in
connection with the operation or maintenance thereof located therein and thereon
and the appurtenant parking facilities.
Upon substantial completion of Phase II and election of Lessor, the
Property shall thereafter be deemed to mean the land (and all easement areas
appurtenant thereto) on which both Phase I and Phase II are located; and the
Office Complex as that term is used herein shall be deemed to mean all buildings
and improvements and personal property of Lessor used in connection with the
operation or maintenance thereof and appurtenant parking facilities located on
Phase I and Phase II.
If Lessor so elects, upon substantial completion of Phase II and
redefinition of the terms "Property" and "Office Complex" as hereinabove
described, the percentage set forth as "Lessee's Pro Rata Share of Real Estate
Taxes and Operating Expenses" in Article II.D herein, shall be recomputed on the
basis of the rentable area of the Premises compared to the rentable area of the
Office Complex (as expanded) subject to adjustment on the basis of ninety-five
percent (95%) of the total average rentable area of the Office Complex (as
expanded) pursuant to said Article II.E.
In no event shall this Article be deemed to require Lessor to develop
or construct Phase II (nor require Lessor to combine Phase I and Phase II as
hereinabove allowed) or any addition or modification to the Office Complex (as
originally defined herein or otherwise), nor is this intended in any manner to
be a representation or warranty that Phase II will at any time be constructed or
developed by Lessor. Subject to the approval of Lessee, Lessor shall retain the
right to increase or decrease the size of Phase I or Phase II and make other
changes to the Property and the legal description of the Office Complex in its
reasonable discretion.
Scottsdale Northsight/JDA Software
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Exhibit C
(Page 3 of 14)
However, upon execution by Lessee of a lease agreement for not less
than sixty-five percent (65%) of the proposed building comprising Phase II, then
Lessor, or the developer chosen by Lessee, shall then commence and diligently
pursue the completion of construction of Phase II. The construction of Phase II
by Lessor shall be performed: (i) pursuant to a construction plan and schedule
which Lessor shall review with Lessee; and (ii) by Lessor using commercially
reasonable efforts to minimize the disruption to Lessee and its utilization of
the Premises. In the event the developer of Phase II (and the landlord to Lessee
for the sixty-five percent (65%) of the proposed Phase II building) is not
Lessor, then nonetheless, Lessor shall cooperate with Lessee (and its Phase II
developer) in such efforts, and shall not unreasonably withhold its consent to
such agreements (including, without limitation, a land exchange agreement to
allow the Phase II building site to be acquired by Lessee or its developer),
plats, easements, shared operating expense arrangements and parking
improvements, which are of a nature to accommodate the proposed development of
Phase II, as contemplated on the Phase II Site Plan attached hereto as Exhibit
"A-2". In any event, if Lessor is not the developer of Phase II, then it shall
not be required to pay for any improvements.
Nothing in this Lease shall be construed to require Lessee to engage
Lessor to acquire, develop or construct Phase II, or to otherwise grant to
Lessor any exclusive rights thereto.
ARTICLE XXX. EXPANSION RIGHT: Subject to the terms and conditions set forth in
this Article XXX, Lessor hereby grants to Lessee the right ("Offer Right") to be
offered by Lessor the opportunity to lease not less than 24,000 rentable square
feet of space in the remaining rentable areas of the Building (or such lesser
area, if Lessee is then leasing, as the Premises, an area which results in less
than 24,000 rentable square feet being available in the Building) as and when
such portions become available between the sixtieth (60th) and the
seventy-second (72nd) calendar month of the term of this Lease (the "Offer Right
Period"). As a condition to this Offer Right, Lessee shall be required to give
Lessor a notice of Lessee's exercise, during the forty-seventy (47th) month of
the term of this Lease and of Lessee's waiver of its early termination rights
under Article XXXVIII. Within thirty (30) days of receipt of Lessee's exercise
notice, Lessor shall provide Lessee a description of the portions of the
Building which shall be available during the Offer Right Period and a form of
lease, or an amendment to this Lease, in regard to such portions. The Base Rent
for the additional portions shall be ninety-five percent (95%) of the then Fair
Market Value (defined in Article XXXIV, below) and the term shall be
co-terminous with the remaining term of this Lease. For a period of thirty (30)
days thereafter, the parties shall make a good faith effort to agree upon the
Fair Market Value for Base Rent of the additional portions. In the event that
Lessor and Lessee fail to agree within said thirty (30) day period, then the
Fair Market Value for Base Rent for such additional portion shall be determined
by appraisal in the manner set forth in Article XXXIV hereof. For this purpose,
however, "Fair Market Value" shall be determined by considering the amount of
tenant improvement allowance and the then remaining term of this Lease.
ARTICLE XXXI. FIRST OPTION TO EXTEND: Lessee shall have the right, subject to
the provisions hereinafter provided, to extend the term of this Lease for one
(1) period of five (5) years on the terms and provisions of this Article XXXI.
Such five-year renewal period is sometimes herein referred to as the "First
Renewal Term". The conditions of such First Renewal Term shall be as follows:
(a) That this Lease is in full force and effect and Lessee is not
in default in the performance of any of the terms, covenants
and conditions herein contained, in respect to which notice of
default has been given hereunder which has not been or is not
being remedied in the time limited
Scottsdale Northsight/JDA Software
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Exhibit C
(Page 4 of 14)
in this Lease, at the time of exercise of the right of
renewal, but Lessor shall have the right at its sole
discretion to waive the non-default conditions herein.
(b) That such First Renewal Term shall be on the same terms,
covenants and conditions as in this Lease; provided, however,
the annual Base Rent for such First Renewal Term shall be an
amount equal to 115% of the Base Rent rate for the last sixty
(60) months of the initial ten (10) year term of this Lease
per rentable square feet of the Premises.
(c) That Lessee shall exercise its right to the First Renewal Term
provided herein, if at all, by notifying Lessor in writing of
its election to exercise the right to renew the term of this
Lease no later than twelve (12) months prior to end of the
initial ten-year term.
ARTICLE XXXII. SECOND OPTION TO EXTEND: If and only if Lessee has exercised its
option to extend the term of this Lease for the First Renewal Term and this
Lease is in full force and effect, Lessee shall have the right, subject to the
provisions hereinafter provided, to further extend the term of this Lease for
one (1) period of five (5) years on the terms and provisions of this Article
XXXII. Such five-year renewal period, which is sometimes hereinafter referred to
as the "Second Renewal Term", shall commence on the day after the expiration of
the First Renewal Term. The conditions of such Second Renewal Term shall be as
follows:
(a) That this Lease is in full force and effect and Lessee is not
in default in the performance of any of the terms, covenants
and conditions herein contained, in respect to which notice of
default has been given hereunder which has not been or is not
being remedied in the time limited in this Lease, at the time
of exercise of the right of renewal, but Lessor shall have the
right at its sole discretion to waive the non-default
conditions herein.
(b) That such Second Renewal Term shall be on the same terms,
covenants and conditions as in this Lease; provided, however,
the annual Base Rent for such Second Renewal Term shall be an
amount equal to ninety-five percent (95%) of the Fair Market
Value for Base Rent rate for such space on the date such
renewal term shall commence in relation to comparable (in
quality, location and size) office space located in
Scottsdale, Arizona. The determination of such Fair Market
Value for Base Rent for the Premises shall be made no later
than the date that is twelve (12) months prior to the end of
the First Renewal Term. Provided Lessee has properly elected
to renew the term of this Lease, and if Lessor and Lessee fail
to agree at least eleven (11) months prior to the end of the
First Renewal Term upon the Fair Market Value for Base Rent of
the Premises, the Fair Market Value for Base Rent of the
Premises shall be determined by appraisal in accordance with
the provisions of Article XXXIV hereof. Notwithstanding
anything to the contrary contained in this Article, in no
event shall the Base Rent of the Premises for the Second
Renewal Term be less than the Base Rent (exclusive of
temporary abatements) payable by Lessee under the terms of
this Lease immediately prior to commencement of such Second
Renewal Term.
(c) That Lessee shall exercise its right to the Second Renewal
Term provided herein, if at all, by notifying Lessor in
writing of its election to exercise the right to renew the
term of this Lease no later than twelve (12) months prior to
end of the First Renewal Term. Upon notification with respect
to such renewal, and for a period of thirty (30) days
thereafter, the parties hereto
Scottsdale Northsight/JDA Software
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Exhibit C
(Page 5 of 14)
shall make a good faith effort to agree upon the Fair Market
Value for Base Rent of the Premises for such Second Renewal
Term. In the event that Lessor and Lessee fail to agree within
the thirty (30) day time period set forth in this subparagraph
(c), the Fair Market Value for Base Rent of the Premises for
such Second Renewal Term shall be determined by appraisal in
the manner set forth in Article XXXIV hereof. Any
determination by appraisal or any agreement reached by the
parties hereto with respect to such Fair Market Value for Base
Rent and resulting Base Rent of the Premises for such Second
Renewal Term shall be expressed in writing and shall be
executed by the parties hereto, and a copy thereof delivered
to each of the parties.
ARTICLE XXXIII. THIRD OPTION TO EXTEND. If and only if Lessee has exercised its
option to extend the term of this Lease for the Second Renewal Terms and this
Lease is in full force and effect, Lessee shall have the right, subject to the
provisions hereinafter provided, to further extend the term of this Lease for
one (1) period of five (5) years on the terms and provisions of this Article
XXXIII. Such five-year renewal period, which is sometimes hereinafter referred
to as the "Third Renewal Term", shall commence on the day after the expiration
of the Second Renewal Term. The conditions of such Third Renewal Term shall be
as follows:
(a) That this Lease is in full force and effect and Lessee is not
in default in the performance of any of the terms, covenants
and conditions herein contained, in respect to which notice of
default has been given hereunder which has not been or is not
being remedied in the time limited in this Lease, at the time
of exercise of the right of renewal, but Lessor shall have the
right at its sole discretion to waive the non-default
conditions herein.
(b) That such Third Renewal Term shall be on the same terms,
covenants and conditions as in this Lease; provided, however,
the annual Base Rent for such Third Renewal Term shall be an
amount equal to ninety-five percent (95%) of the Fair Market
Value for Base Rent rate for such space on the date such
renewal term shall commence in relation to comparable (in
quality, location and size) office space located in
Scottsdale, Arizona. The determination of such Fair Market
Value for Base Rent for the Premises shall be made no later
than the date that is twelve (12) months prior to the end of
the Second Renewal Term. Provided Lessee has properly elected
to renew the term of this Lease, and if Lessor and Lessee fail
to agree at least eleven (11) months prior to the end of the
Second Renewal Term upon the Fair Market Value for Base Rent
of the Premises, the Fair Market Value for Base Rent of the
Premises shall be determined by appraisal in accordance with
the provisions of Article XXXIV hereof. Notwithstanding
anything to the contrary contained in this Article, in no
event shall the Base Rent of the Premises for the Third
Renewal Term be less than the Base Rent (exclusive of
temporary abatements) payable by Lessee under the terms of
this Lease immediately prior to commencement of such Third
Renewal Term.
(c) That Lessee shall exercise its right to the Third Renewal Term
provided herein, if at all, by notifying Lessor in writing of
its election to exercise the right to renew the term of this
Lease no later than twelve (12) months prior to end of the
Second Renewal Term. Upon notification with respect to such
renewal, and for a period of thirty (30) days thereafter, the
parties hereto shall make a good faith effort to agree upon
the Fair Market Value for Base Rent of the Premises for such
Third Renewal Term. In the event that Lessor and Lessee fail
Scottsdale Northsight/JDA Software
04/26/98: 531637.1827-0801
Exhibit C
(Page 6 of 14)
to agree within the thirty (30) day time period set forth in
this subparagraph (c), the Fair Market Value for Base Rent of
the Premises for such Third Renewal Term shall be determined
by appraisal in the manner set forth in Article XXXIV hereof.
Any determination by appraisal or any agreement reached by the
parties hereto with respect to such Fair Market Value for Base
Rent and resulting Base Rent of the Premises for such Third
Renewal Term shall be expressed in writing and shall be
executed by the parties hereto, and a copy thereof delivered
to each of the parties.
ARTICLE XXXIV. APPRAISAL: Within seven (7) days after the expiration of the
period within which Lessor and Lessee were to reach agreement on the Fair Market
Value for Base Rent as provided in Article XXXII, Article XXXIII or Article
XXXV, Lessor and Lessee shall mutually appoint an appraiser that has at least
five (5) years full-time commercial appraisal experience and is a member of the
American Institute of Real Estate Appraisers. If Lessor and Lessee are unable to
agree upon an appraiser, either of the parties to this Lease, after giving five
(5) days prior written notice to the other party, may apply to the then
president of the Phoenix Board of Realtors for the selection of an appraiser who
meets the foregoing qualifications, which selection shall be made within fifteen
(15) days. The appraiser selected by the president of the Board of Realtors
shall be a person who has not previously acted in any capacity for either party,
its affiliates or leasing agents and who meets the above experience
qualifications. Lessor and Lessee shall each, within seven (7) days of the
appointment (either by agreement or selection) of the appraiser, submit to the
appraiser such parties' determination of the Fair Market Value for Base Rent for
purposes of Article XXXII, Article XXXIII or Article XXXV, as the case may be.
Within twenty (20) days after the conclusion of the above-referenced seven-day
period, the appraiser shall review each of the Lessor's and Lessee's submittals
and shall review such other information as such appraiser shall deem necessary
(a party may furnish the appraiser with any information it deems relevant) and
shall determine which of the two submittals is the more reasonable. The
appraiser shall immediately notify the parties of his or her selection, and such
selection shall be the Base Rent of the Premises for the Second Renewal Term or
the Third Renewal Term, as the case may be. If, upon the expiration of the
above-referenced seven-day period, the appraiser shall have received one of the
party's submittals as to the Fair Market Value for Base Rent, but not both, the
appraiser shall designate the submitted item as the Base Rent for the Second
Renewal Term or the Third Renewal Term, as the case may be, and the appraiser
shall immediately notify the parties of same. Notwithstanding the foregoing two
sentences, in no event shall the Base Rent of the Premises for the Second
Renewal Term or the Third Renewal Term be less than the Base Rent (exclusive of
temporary abatements) payable by Lessee under the terms of this Lease
immediately prior to commencement of the applicable renewal term.
For purposes of this Lease, the parties intend for the "Fair Market
Value" for Base Rent to be the prevailing rental rate then being obtained by
Lessor (or that Lessor would then be able to obtain) under leases of comparable
space within the Office Complex for a comparable term (including any renewal
terms that have then been exercised by Lessee). In determining the Fair Market
Value, the parties shall consider the prevailing rental rate that is then being
obtained (or would be able to be obtained) by other landlords of buildings
similar to the Office Complex located in the same regional Scottsdale area under
leases of comparable space for a comparable term. In determining the Fair Market
Value, adjustments shall be made to account for (a) the difference, if any,
between (i) the amount of tenant improvement allowance, free rent and other
tenant inducements that Lessor and such other landlords are (or would be)
required to grant under leases, and (ii) the amount of tenant improvement
allowance, free rent and other tenant
Scottsdale Northsight/JDA Software
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Exhibit C
(Page 7 of 14)
inducements to which Lessee will be entitled under this Lease for the subject
space and term (and, for purposes of such adjustment when determining the Fair
Market Value for any renewal term, Lessor shall be deemed to have granted Lessee
a tenant improvement allowance in an amount equal to the replacement value of
the then-existing leasehold improvements in the Premises); and (b) the amount of
Operating Expenses and Real Estate Taxes per square foot of rentable area that
Lessor and such other landlords are (or would be) required to pay under the
leases at such prevailing rental rate.
ARTICLE XXXV. FIRST RIGHT OF OFFER. Subject to the terms and conditions set
forth in this Article XXXV, Lessor hereby grants to Lessee the first right
("First Right") to be offered by Lessor to lease certain portions of the
Building. However, except for the Premises leased to Lessee at the commencement
of the term of this Lease, Lessee agrees that the First Right shall apply only
to the balance of the leasable area in the Building (not so leased by Lessee)
and only after the expiration or earlier termination of leases with third party
tenants, procured by Lessor as the initial or subsequent occupants of such
balance. If, at any time while this First Right is in effect, Lessor should
intend to lease such space to a third party tenant subsequent to the initial
third party tenant, then Lessor shall first offer to lease such space to Lessee.
In the event Lessor offers to Lease such space to Lessee pursuant to this
Article XXXV, Lessee shall notify Lessor in writing within thirty (30) days of
its receipt of Lessor's notice whether Lessee desires to offer to lease such
space from Lessor. If Lessee notifies Lessor in writing within such thirty-day
period that Lessee does not desire to lease such space, or if Lessee does not
respond in writing to Lessor's notice within such thirty-day period, then, in
either of the above instances, Lessor's obligations under this Article XXXV
shall automatically terminate as to that space at that time and Lessor shall
thereafter be entitled to lease such space. If Lessee notifies Lessor in writing
within such thirty-day period that Lessee desires to lease such space from
Lessor, the parties shall thereafter negotiate for Lessee's lease of the space
from Lessor; provided, however, that if Lessor and Lessee fail to mutually agree
upon the terms of Lessee's lease of such space and to execute a written
amendment to this Lease within ten (10) business days of the date of Lessee's
receipt of written notice (which amendment shall contain the terms mutually
agreed to by the parties for Lessee's lease of such space), then Lessor's
obligations under this Article XXXV shall automatically terminate and be of no
further force or effect at the end of such ten (10) business days period with
respect to such space, until after it has again been leased to a third party
tenant. This First Right described herein is intended by the parties to be valid
throughout the term of this Lease, including any renewals of said term, however,
the terms of any amendment to include any additional space within the "Premises"
shall consider the remaining term of this Lease, and to appropriately prorate
(and thereby reduce) any concessions or allowances otherwise made by Lessor, so
as to result in a realization by Lessor of a substantially equivalent economic
return in regard to the additional space. The purpose of this Article is to
provide notice to Lessee so that Lessee may be in a position to offer to lease
such space on a competitive basis with others, and, notwithstanding anything to
the contrary contained in this Article XXXV, nothing in this Article XXXV shall
be deemed to be an option or right of first refusal.
ARTICLE XXXVI. SIGNAGE AND NAMING RIGHTS: Provided Lessee at its cost receives
all necessary governmental and quasi-governmental approvals therefor, Lessor
shall allow Lessee to erect a sign on the exterior of the Office Complex, in a
location designated by Lessor, which sign shall be Lessee's name and the
building designation sign. Lessee shall also have the right to designate the
name for the Office Complex. Lessor shall pay for the procurement and
installation of such signage to the extent the
Scottsdale Northsight/JDA Software
04/26/98: 531637.1827-0801
Exhibit C
(Page 8 of 14)
plans and specifications set forth in Exhibit "F" require Lessor to procure or
install such signage. Lessee shall pay all annual and other permit fees
therefor, shall pay all costs of maintenance thereof, shall keep same in good
condition, order and repair at its sole cost and expense, shall remove same
prior to termination of this Lease, and shall repair and restore any damage to
the Office Complex caused by such installation and/or removal. Any such sign,
and the display of Lessee's name thereon, shall be subject to the terms of any
restrictive covenants applicable thereto and all applicable laws, ordinances
and regulations. Lessor and Lessee shall approve the comprehensive sign program
to be submitted to the City of Scottsdale for approval. Lessor expressly
reserves the right to erect additional signs on the exterior of the Office
Complex, for the benefit of the other tenants, however, the size, location and
appearance of such signage shall be subject to Lessee's approval, which shall
not be unreasonably withheld, delayed or conditioned. The signage rights of
Lessee and of Lessor shall be proportionate, in area, based upon the relative
areas of the Office Complex (i) of the Premises, and (ii) of the remainder of
the rentable area of the Office Complex.
ARTICLE XXXVII. TENANT IMPROVEMENTS:
A. Lessor is providing the existing base building (pursuant to
the schedule of base building plan attached hereto as Exhibit "F") and a tenant
improvement allowance of $30.00 per usable square foot (the "Tenant Improvement
Allowance") for the tenant improvements to be constructed by Lessor at the
Premises. All improvements to the existing base building will be so-called
"Tenant Improvements" to be installed by Lessor but to be selected by Lessee as
hereinafter provided and paid for by Lessee subject to Lessor providing an
allowance in the aforesaid amount. Included within the Tenant Improvement
Allowance shall be all costs for space planning, construction document
preparation, design work and construction drawing work and all costs of
obtaining permits. In the event Lessee desires any Tenant Improvements having a
price in excess of the Tenant Improvement Allowance, Lessee shall pay Lessor in
cash for such excess amount or, at Lessee's option, such excess amount (up to
$7.00 per rentable square foot of the Premises) may be paid by Tenant in equal
monthly installments over the Initial Term, with an annual interest rate thereon
of nine percent (9%), in which case, such excess amount shall be deemed to be
included in the Tenant Improvement Allowance. If Lessee requests a higher grade
or quality of any component of the Tenant Improvements (if any) otherwise
provided by Lessor pursuant to the plans and specifications of Exhibit "F",
Lessor will allow a credit for the cost of the component replaced. The balance
of the amount by which the cost of the Tenant Improvements exceeds the Tenant
Improvement Allowance shall be paid for in cash by Lessee to Lessor upon
substantial completion of the Tenant Improvements. In the event the actual cost
of the Tenant Improvements is less than the Tenant Improvement Allowance
(without regard to the $7.00 per rentable square foot additional amount), the
difference between the actual cost of such Tenant Improvements and the Tenant
Improvement Allowance shall be available to Lessee as a credit against Base Rent
due from Lessee to Lessor. Opus West Construction Corporation shall be the
general contractor for all Tenant Improvement work. All major subcontracts shall
be competitively bid.
B. On or before June 17, 1998, Lessee shall provide to Lessor a
space plan for the Tenant Improvements to be constructed by Lessor, which space
plan shall have received final approval of Lessee and which shall be adequate
for preparation by Lessor of working drawings for construction of such Tenant
Improvements. Such space plan shall show in reasonable detail the design and
appearance of the tenant finishing materials to be used in the construction
thereof, and such other detail or description as may be necessary to adequately
outline the scope of the Tenant Improvements. If Lessee shall provide Lessor
with Lessee's space plan after June 17, 1998, then the Target Commencement Date
(April
Scottsdale Northsight/JDA Software
04/26/98: 531637.1827-0801
Exhibit C
(Page 9 of 14)
1, 1999) shall be automatically extended day-for-day for each day of delay after
June 17, 1998.
X. Xxxxxx'x architect (which shall be selected by Lessee from the
list of architects already approved by Lessor) shall prepare the final working
drawings and specifications for the construction and installation of the Tenant
Improvements. Lessee shall approve or disapprove the final working drawings and
specifications within ten working days after receipt of same, and if Lessee
fails to approve or disapprove same within such ten working day period, Lessee
shall be deemed to have approved the final working drawings and specifications.
Lessee agrees that it will not withhold its approval except for just and
reasonable cause and will not act in an arbitrary or capricious manner with
respect to the approval of the final working drawings and specifications.
Lessor's architect shall review and seal said plans and submit the plans for
permits and construction bids.
D. Subject to the provisions of Article XXXVII.G., below, if
Lessee desires to make revisions to the final working drawings and
specifications once they have been approved, Lessee shall request that Lessor's
architect prepare, and submit to Lessor for approval, proposed working drawings
and specifications containing all such desired revisions. Upon approval by
Lessor of any revisions, Lessor shall obtain promptly from its contractor the
amount of any adjustment in the Tenant Improvement costs resulting from such
revisions and the amount of any delay that would result from constructing such
proposed revisions, and Lessor shall submit the amount thereof and the
contemplated delay caused thereby to Lessee for Lessee's approval. Lessee shall
approve or disapprove the amount of such adjustment and the delay caused thereby
within two working days after submission thereof to Lessee by Lessor, and if
Lessee fails to notify Lessor of its disapproval within such two working day
period, Lessee shall be deemed to have given Lessee's approval thereto. If
Lessee disapproves either the amount of such adjustment or the delay resulting
therefrom, then such proposed revision shall be deemed withdrawn by Lessee and
Lessor shall have no obligation to cause the construction of such revision. Once
any adjustment and the resulting delay have been approved, Lessee shall be
deemed to have given full authorization to Lessor to proceed with the work of
constructing and installing the Tenant Improvements in accordance with the final
working drawings and specifications, as revised.
X. Xxxxxx shall use its best faith efforts to cause the
construction of the Office Complex, the Premises or the Tenant Improvements to
be substantially completed, subject only to completion of punchlist items, on or
before fifteen (15) days prior to the Target Commencement Date; provided,
however, that if any delay is caused or contributed to by Lessee (which shall
include delays described above relating to the failure of Lessee to submit the
required plans by June 17, 1998 or to respond timely to approve the final
working drawings and specifications and shall also include any delays caused by
any Lessee-proposed revisions to the final working drawings and specifications),
or in the event performance by Lessor is delayed due to force majeure, which
shall include, without limitation, act or neglect of Lessee or those acting for
or under Lessee ("Lessee Delay"), labor disputes, casualties, acts of God or the
public enemy, governmental embargo restrictions, shortages of fuel, labor or
building materials, action or nonaction of public utilities, or of local, state
or federal governments affecting the Tenant Improvements or other causes beyond
Lessor's reasonable control), then the Target Commencement Date shall be
automatically extended day-for-day for each day of any such delay.
F. The price charged by Lessor to Lessee for the Tenant
Improvements shall be all direct and indirect costs thereof plus three percent
(3%) as a development fee, five percent (5%) for Lessor's overhead and profit
and five percent (5%) as a fixed-fee
Scottsdale Northsight/JDA Software
04/26/98: 531637.1827-0801
Exhibit C
(Page 10 of 14)
general conditions cost, in connection with the construction of the Tenant
Improvements. Lessee shall be responsible for Lessor's costs (including lost
rent) arising out of delays in completing the Tenant Improvements caused by
Lessee. Lessee also agrees to refrain from ordering long lead time items which
would delay substantial completion of the Tenant Improvements. For purposes of
this Article, "long lead time items" shall mean items required to complete the
Tenant Improvements that may delay substantial completion beyond the date which
is fifteen (15) days prior to the Target Commencement Date due to causes such as
an extended length of time necessary for the supplier of the item to manufacture
same or due to a lengthy shipping time. Lessor shall give notice to Lessee as
soon as practicable, to identify any items constituting "long lead time items."
G. From time to time, Lessee may request reasonable modifications
of the plans and specifications of the final working drawings for the Tenant
Improvements, or to the plans and specifications set forth on Exhibit "F"
attached hereto. Lessor reserves the right to reject such request if the request
requires a substantial modification of the structural aspects or primary systems
of the Building, a substantial delay in the completion of the construction, or a
substantial increase in the costs of construction. As soon as reasonably
possible after receipt of such request (if not rejected for the foregoing
reasons), Lessor shall prepare a change order which shall describe the
modification requested and the additional costs and delays, if any, which shall
result and the time period for Lessee to review and accept the change order.
Further, Lessor shall be entitled to propose, as a condition to Lessor's
agreement to the change order, a modification of the provisions of Article IV,
so that as a result of the delays anticipated to be caused by the change order,
Lessor's liability for the Reimbursement Obligation shall not be increased. If
Lessee accepts the change order (and by implication, all modifications to the
Lease required, as proposed by Lessor and necessitated thereby), then Lessor
shall diligently proceed to construct the proposed change order improvements.
Lessee shall pay any such costs upon demand by Lessor and completion of such
change order improvements, including the fees and charges allowed in Article
XXXVII.F., above.
ARTICLE XXXVIII. TERMINATION RIGHT: Provided (a) Lessee is free from default
under the terms of this Lease on both the date Lessee delivers written notice to
Lessor as provided in subparagraph (b) of this sentence and on the last day of
the eighty-fourth (84th) month of the initial ten-year term of this Lease, and
(b) on or before the last day of the seventy-second (72nd) month of the initial
term, Lessee delivers written notice to Lessor advising Lessor that Lessee
desires to terminate this Lease as of the end of the eighty-fourth (84th) month
of the initial term, together with a payment in good funds (as a termination
payment and not as advance rent) equal to the Base Rent and Additional Rent
required to be paid by Lessee pursuant to the terms of this Lease, for the
twelve (12) month period ending on the last day of such eighty-fourth (84th)
month, plus, an amount equal to the unamortized balance of the Tenant
Improvement Allowance in excess of the $30.00 per usable square foot (provided
in Article XXXVII.A. and which is being amortized over the Initial Term at nine
percent (9%) per annum), if any, projected to exist at the end of said
eighty-fourth (84th) month, and (c) pays the Base Rent and Additional Rent when
and as due through said eighty-fourth (84th) month, then this Lease shall be
deemed to terminate on the last day of the eighty-fourth (84th) month of the
initial term.
ARTICLE XXXIX. RIGHT TO EXAMINE BOOKS AND RECORDS OF LESSOR: Lessor hereby
agrees, at Lessee's request, to make available to Lessee for its inspection and
examination all of the books and records that relate to Lessor's statement as to
Lessee's Pro Rata Share of Real Estate Taxes and Lessee's Pro Rata Share of
Operating Expenses. Lessor also agrees to make the aforementioned books and
records available to a certified public accountant, selected by Lessee, for
review and audit if Lessee so elects. If Lessee elects to audit such costs and
expenses and Lessor's statement is found to be in error, the appropriate party
shall pay to the other such payment as may be required based upon such audit.
Further, if Lessee elects to audit such costs and expenses as provided above and
Lessor's statement is found to be in error by more than ten
Scottsdale Northsight/JDA Software
04/30/98: 532732.1827-0801
Exhibit C
(Page 11 of 14)
percent (10%), then Lessor shall pay the reasonable costs of such audit not to
exceed $2,500. Lessee's right to audit and obtain reimbursement of any
erroneously charged amount of Real Estate Taxes or Operating Expenses for any
given Lease Year, shall expire as of December 31 of the following calendar year.
ARTICLE XL. CONSTRUCTION WARRANTY: Lessor shall cause Opus West Construction
Corporation ("Opus West") to guarantee the Tenant Improvements against defective
workmanship and/or materials for a period of one (1) year from the date of
substantial completion of the Tenant Improvements and Lessor shall cause Opus
West to guarantee also the Building and the Office Complex against defective
workmanship and/or materials for a period of one (1) year from the substantial
completion thereof. Lessor agrees to cause Opus West to repair or replace any
defective item in the Tenant Improvements or such other improvements occasioned
by poor workmanship and/or materials during the applicable one-year period, and
Opus West's performance of such one-year guarantee shall be the sole and
exclusive obligation of Lessor or Opus West with respect to such defective
workmanship and/or materials, and Lessee's rights to enforce such one-year
guarantee against Opus West shall be Lessee's sole and exclusive remedy with
respect to such defective workmanship and/or materials in limitation of any
contract, warranty or other rights, whether express or implied, that Lessee may
otherwise have under applicable law. To the extent warranties of any of Lessor's
subcontractors or suppliers remain enforceable after the expiration of Lessor's
one (1) year guarantee described above, Lessor shall cooperate with Lessee to
enforce same for the parties' mutual benefit. Lessor agrees to obtain a ten (10)
year warranty or bond on the roof membrane and structure from the roof supplier
and contractor.
Subject to Articles II, XII and XIII hereof and to Lessee's obligations
hereunder, except to the extent of any damage caused by the fault or negligence
of Lessee, Lessor shall maintain and keep in good order, condition and repair
the structural components (defined as the footings and foundation, support walls
and columns and the roof structure (exclusive of the roof membrane)) of the
Building in which the Premises is located. All costs and expenses incurred in
connection therewith shall be included in Operating Expenses, except for any
capital improvements that are excluded pursuant to Article II, which excluded
capital improvements shall not be included in Operating Expenses.
ARTICLE XLI. FIXTURIZATION PERIOD: Lessor shall permit Lessee, during the
fifteen (15) day period following substantial completion of the Tenant
Improvements and prior to the commencement date of this Lease (as to all, or a
portion of the Premises if the delivery by Lessor is in phases), to commence
installing Lessee's furniture, fixtures and equipment in the Premises; provided,
however, that Lessee shall not interfere with any Tenant Improvement work then
being completed by Lessor, and provided further, however, that Lessee shall not
commence doing business in the Premises during such fifteen-day period. During
such early move-in period, Lessee agrees to comply with all provisions of this
Lease (except for the provisions relating to the payment of rent, which shall
not become effective until the commencement date of this Lease as to all, or a
portion of the Premises if the delivery by Lessor is in phases). Prior to
entering the Premises during such early move-in period, Lessee agrees that all
insurance required to be maintained by Lessee under Article VI of this Lease
shall be in full force and effect, and Lessee agrees to deliver certificates of
insurance to Lessor evidencing such insurance. All improvements, alterations,
additions and installations made by Lessee prior to the commencement date of
this Lease shall be made in strict compliance with the provisions of Article
VIII of this Lease.
ARTICLE XLII. HOLDOVER RIGHT: Lessee shall have the right, subject to the
provisions hereinafter provided, to extend the term of this Lease for one (1)
period of three (3) months after the
Scottsdale Northsight/JDA Software
04/26/98: 531637.1827-0801
Exhibit C
(Page 12 of 14)
expiration of the initial ten-year term (or after any renewal options
thereafter) on the terms and provisions of this Article. Such three-month
renewal period is sometimes herein referred to as the "Holdover Period". The
conditions of Lessee's lease of the Premises during the Holdover Period shall be
as follows:
(a) That this Lease is in full force and effect and Lessee is not
in default in the performance of any of the terms, covenants
and conditions herein contained, in respect to which notice
of default has been given hereunder which has not been or is
not being remedied in the time limited in this Lease, at the
time of exercise of the right of renewal, but Lessor shall
have the right at its sole discretion to waive the non-default
conditions herein.
(b) That Lessee's lease of the Premises during the Holdover Period
shall be on the same terms, covenants and conditions as in
this Lease; provided, however, the monthly Base Rent for such
Holdover Period shall be an amount equal to the Base rent
amount, in effect immediately prior to the Holdover Period,
multiplied by 125%.
(c) That Lessee shall exercise its right to remain in possession
of the Premises during the Holdover Period, if at all, by
notifying Lessor in writing of its election to do so no later
than six (6) months prior to end of the initial ten-year term,
or any applicable and exercised renewal term.
If the Premises are not surrendered at the end of the term (as may be extended
by the preceding provisions of this Article) or sooner termination thereof,
Lessee shall indemnify Lessor against loss or liability resulting from delay by
Lessee in so surrendering the Premises, including, without limitation, claims
made by any succeeding tenants founded on such delay and any attorneys' fees
resulting therefrom.
In the event Lessee remains in possession of the Premises after
expiration of this Lease and without the execution of a new lease and without
Lessor's written consent, Lessee shall be deemed to be occupying the Premises
without claim of right and Lessee shall pay Lessor for all costs arising out of
loss or liability resulting from delay by Lessee in so surrendering the Premises
as above provided and shall pay a charge for each day of occupancy in an amount
equal to double the Base Rent and Additional Rent (on a daily basis) payable by
Lessee under this Lease immediately prior to the expiration of this Lease.
ARTICLE XLIII. PARKING: Lessor shall construct not less than six (6) vehicular
parking spaces on the Property per 1,000 rentable square feet in the Office
Complex. Lessee (and its employees, invitees and visitors) shall be entitled to
use, without charge, six (6) vehicular parking spaces per 1,000 rentable square
feet in the Premises, of which spaces, approximately thirty-five percent (35%)
shall be covered. Subject to Lessor's approval (which shall not be unreasonably
withheld), Lessee may request Lessor to provide covered parking with respect to
a certain number of additional parking spaces to be designated by Lessee. In the
event Lessee desires and Lessor approves such covered parking, the cost incurred
by Lessor in connection with such covered parking shall be paid by Lessee within
thirty (30) days after Lessee's receipt of Lessor's written request therefor.
Lessee and Lessor shall cooperate in the designation of "reserved" and "visitor"
spaces for the exclusive benefit of Lessee and in the location of the parking;
however, any costs in such designation shall be borne solely by Lessee, and
Lessor shall have no obligation regarding the enforcement of Lessee's rights to
such parking. Lessee shall determine the number of "reserved" covered parking
spaces allocated to Lessee.
Scottsdale Northsight/JDA Software
04/26/98: 531637.1827-0801
Exhibit C
(Page 13 of 14)
ARTICLE XLIV. ACQUISITION CONTINGENCIES: This Lease, and Lessor's obligations
hereunder are expressly conditioned upon Lessor's acquisition of the Property
on terms and conditions acceptable to Lessor in its absolute discretion, on or
before July 1, 1998. Accordingly, if Lessor shall notify Lessee on or before
July 15, 1998, to the effect that Lessor has failed to acquire the Property,
then in such case this condition subsequent shall be deemed failed and this
Lease shall terminate, and neither party shall have any obligation or liability
to the other. Lessee acknowledges receipt of that letter of intent by and
between Lessor and Treaccar, dated March 23, 1998,' and Lessee confirms the
acceptability thereof. Such agreement shall also include an option right to
acquire a parcel of approximately 5 acres in size, adjacent to the Property,
and such option shall provide that it shall be freely assignable from Lessor to
Lessee, upon mere notice by Lessee.
ARTICLE XLV. INDEMNITY BY LESSOR: Lessor agrees to indemnify and save Lessee
harmless against and from any and all claims, loss, damage and expense by or on
behalf of any person or persons, firm or firms, corporation or corporations,
arising from any breach or default on the part of Lessor in the performance of
any covenant or agreement on the part of Lessor to be performed, pursuant to
the terms of this Lease, or arising from any negligence or wilful misconduct on
the part of Lessor or its agents, contractors, servants, employees or
licensees, or arising from any accident, injury or damage to the extent caused
by the negligence or wilful misconduct of Lessor or its agents or employees to
any person, firm or corporation occurring during the term of this Lease or any
renewal thereof, in or about the Premises and the Office Complex, and from and
against all costs, reasonable counsel fees, expenses and liabilities incurred
in or about any such claim or action or proceeding brought thereon; and in case
any such action or proceeding be brought against Lessee by reason of any such
claim, Lessor, upon notice from Lessee, covenants to resist or defend such
action or proceeding by counsel reasonably satisfactory to Lessee; provided,
however, that notwithstanding anything to the contrary contained in this
Article, Lessor shall not be liable for, and Lessor shall not indemnify Lessee
against or from, (a) any consequential damages of Lessee, which shall include
without limitation any loss of business or loss of profits, or (b) any claim
which Lessee has waived pursuant to Article VI of this Lease, or (c) any claim
which is not covered by, or exceeds the limits of, Lessor's general public
liability insurance policy.
Exhibit C
(Page 14 of 14)
FIRST AMENDMENT TO OFFICE LEASE
SCOTTSDALE NORTHSIGHT
This First Amendment to Office Lease (the "Amendment") dated as of the
30th day of June, 1998, by and between OPUS WEST CORPORATION, a Minnesota
corporation ("Lessor") and JDA SOFTWARE GROUP, INC., a Delaware corporation
("Lessee").
RECITALS
1. By that Lease dated as of April 30, 1998 (the "Lease") by and
between Lessor and Lessee, the parties agreed to lease approximately 95,000
rentable square feet (the "Premises"), within that Office Complex to be
constructed by Lessor, west and contiguous to 00xx Xxxxxx and South of Raintree
Drive in Scottsdale, Arizona;
2. Pursuant to Article XXI. DETERMINATION OF AREA OF PREMISES OF
THE LEASE, Lessee has the right to give notice to Lessor, prior to the date of
the construction permit, to designate additional areas on the first floor of the
Building to be included as part of the Premises, and accordingly, this Amendment
shall constitute said notice by Lessee, and a revision of the area intended to
be the Premises.
THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
A. Notwithstanding any provision in the Lease to the contrary,
the parties agree that the Premises shall be comprised of the entire second
(2nd) and third (3rd) floor of the Building, plus (approximately) 20,000
rentable square feet located in the first floor of the Building. Exhibit A-l
attached to this Amendment sets forth the conceptual depiction and location of
the Premises as expanded hereby. Such adjustment in the rentable area of the
Premises shall be effective for all purposes referenced in the Lease, including,
without limitation, in the determination of the Lessee's Pro Rata Share of Real
Estate Taxes and Operating Expenses, the Tenant Improvement Allowance (although
said amount shall continue to be computed based upon usable square feet), the
allocation of parking rights pursuant to Article XLIII (i.e. at the rate of six
(6) spaces per 1,000 rentable square feet), and for other purposes set forth in
the Lease. Notwithstanding the foregoing, the commencement date memorandum to be
executed by the parties pursuant to Article XXVIII of the Lease shall control as
to the exact amount of rentable and usable area for the Premises.
B. Except as specifically modified or amended hereby, the parties
confirm and ratify the Lease as enforceable and binding in accordance with its
terms and provisions. All capitalized terms not otherwise defined herein shall
have the meanings provided in the Lease.
IN WITNESS WHEREOF, the undersigned parties have executed this
Amendment to be effective as of the date first written above.
LESSOR: LESSEE:
OPUS WEST CORPORATION, a JDA SOFTWARE GROUP, INC., a
Minnesota corporation Delaware corporation
By /s/ Xxxxxx X. Xxxxxxx By /s/ Xxxxx X. Xxxxxxx
---------------------- ------------------------
Xxxxxx X. Xxxxxxx Name XXXXX X. XXXXXXX
Its President Print XXXXX X. XXXXXXX
Its : CHIEF EXECUTIVE OFFICER
EXHIBIT A-1
FLOOR PLAN
[FIRST FLOOR PLAN]
Exhibit A-1
(Page 1 of 3)
EXHIBIT A-1
FLOOR PLAN
[SECOND FLOOR PLAN]
Exhibit A-1
(Page 2 of 3)
EXHIBIT A-1
FLOOR PLAN
[THIRD FLOOR PLAN]
Exhibit A-1
(Page 3 of 3)
EXHIBIT E
TOTAL PROJECT COSTS
NOTE: The five percent (5%) risk factor premium imposed upon the land cost to
compensate Lessor for the risk of Lessor's future expansion and the
corresponding speculative space shall be proportionately reduced if the portion
of the Building which is not initially leased by Lessee diminishes from 30.15%.
NORTHSIGHT
DEVELOPMENT COST BREAKDOWN
JDA SOFTWARE
MARCH 10, 1998
JDA
INITIAL
REQUIREMENT
95,000 RSF
-----------
95,000
69.85%
LAND 435,600 SF @ $9.50
$4,138,200 X 74.85%* $ 3,097,564
BUILDING
Shell Design 98,835 GSF @ $ 3.00 $ 296,504
Shell Building 98,835 GSF @ $46.18 $ 4,564,185
Tenant Improvements 90,000 USF @ $30.00 $ 2,700,000
-----------
TOTAL BUILDING COSTS $ 7,560,689
DEVELOPMENT COSTS
Survey $ 3,493
Soil & Environmental $ 6,985
Real Estate Taxes $ 46,463
Legal Expenses $ 52,390
Advertising & Marketing $ 0
Development Fee @ 3% $ 366.406
-----------
TOTAL DEVELOPMENT COSTS $ 475,737
FINANCING COSTS
Land Carry - 11 Mos. @ 8% $ 227,155
Construction Loan - 10.5 Mos. @ 8% $ 295,310
Financing Charge @ 1/2% $ 61.068
TOTAL FINANCING COSTS $ 583,532
COMMISSIONS 95,000 RSF @ 4% (1-5) & 2% (6-10) $ 400,995
DEVELOPMENT CONTINGENCY $ 95,000
-----------
TOTAL PROJECT COSTS 95,000 SF @ $128.56 $12,213,517
RATE RETURN @ 10.42% x 10.42%
-----------
ANNUAL NET RENT $ 1,272,649
NET RENT BASED ON 95,000 RSF $ 13.40
* LANDLORD TO APPLY A FIVE PERCENT (5%) ADJUSTMENT TO THE JDA LAND ALLOCATION TO
JUSTIFY RISK ASSOCIATED WITH TENANT'S FUTURE EXPANSION REQUIREMENT AND
CORRESPONDING SPECULATIVE SPACE.
Exhibit E
(Page 1 of 1)
EXHIBIT F
BASE BUILDING PLANS
[OPUS LOGO]
CONCORDE COMMERCE CENTER- DRAWING LIST
No. DESCRIPTION DATE
--- ----------- ----
CIVIL
-----
C1 COVER SHEET GRADING AND DRAINAGE PLAN 4/28/97
C2 GRADING AND DRAINAGE PLAN 4/28/97
C3 GRADING AND DRAINAGE PLAN 4/28/97
C4 GRADING AND DRAINAGE PLAN 4/28/97
C5 GRADING AND DRAINAGE PLAN 4/28/97
C6 GRADING AND DRAINAGE PLAN DETAILS 4/28/97
C7 COVER SHEET WATER AND SEWER PLAN 4/28/97
C8 WATER AND SEWER PLAN 4/28/97
C9 COVER SHEET PRIVATE FIRELINE PLAN 4/28/97
C10 PRIVATE FIRELINE PLAN 4/28/97
C11 PRIVATE FIRELINE PLAN 4/28/97
C12 PRIVATE FIRELINE PLAN 4/28/97
LANDSCAPE
---------
LA1 COVER SHEET 5/7/97
XX0 XXXXXXXXX PLANS 5/7/57
LA3 LANDSCAPE PLANS 5/7/97
LA4 LANDSCAPE PLANS 5/7/97
LA5 IRRIGATION PLANS 5/7/97
LA6 IRRIGATION PLANS 5/7/97
LA7 IRRIGATION PLANS 5/7/97
LA8 DETAIL SHEET 5/7/97
LA9 SPECIFICATIONS 5/7/97
ARCHITECTURAL
-------------
T1.1 TITLE SHEET 9/22/97
A1.l SITE PLAN 9/22/97
A1.2 SITE DETAILS 9/22/97
A2.1 LEVEL ONE FLOOR PLAN 9/22/97
A2.2 LEVEL TWO FLOOR PLAN 9/22/97
A2.3 LEVEL THREE FLOOR PLAN 9/22/97
A2.4 ROOF PLAN 9/22/97
A2.5 CORE PLAN LEVEL ONE/ENLARGED STAIR PLANS 9/22/97
A2.6 ENLARGED CORE PLANS LEVELS TWO & THREE 9/22/97
A2.7 ENLARGED FINISH PLAN/FINISH SCHEDULE 9/22/97
A3.1 EXTERIOR ELEVATIONS 9/22/97
A3.2 ENLARGED ELEVATIONS 9/22/97
A4.1 STAIR/ELEVATOR SECTIONS/SECTION DETAILS 9/22/97
A4.2 STAIR/SECTION DETAILS 9/22/97
A4.3 WALL SECTIONS 9/22/97
A4.4 SECTIONS DETAILS 9/22/97
A5.1 CONSTRUCTION DETAILS 9/22/97
A5.2 FIRE RESISTIVE CONSTRUCTION DETAILS 9/22/97
A6.1 DOOR SCHEDULE/INTERIOR DETAILS 9/22/97
A7.1 INTERIOR ELEVATIONS 9/22/97
A7.2 INTERIOR ELEVATIONS 9/22/97
A9.1 REFLECTED CEILING PLANS 9/22/97
Exhibit F
(Page 1 of 2)
EXHIBIT F
BASE BUILDING PLANS
Page 2 of 2
STRUCTURAL
----------
S1 TITLE SHEET 2/6/98
S2.1 FOUNDATIONS PLAN 2/6/98
S2.2 LEVEL TWO FRAMING PLAN 2/6/98
S2.3 LEVEL THREE FRAMING PLAN 2/6/98
S2.4 ROOF FRAMING PLAN 2/6/98
S3.1 SECTIONS AND DETAILS 2/6/98
S3.2 SECTIONS AND DETAILS 2/6/98
S3.3 SECTIONS AND DETAILS 2/6/98
S3.4 STAIR PLANS AND SECTIONS 2/6/98
MECHANICAL
----------
Ml.l LEGEND AND SYMBOLS 9/22/97
M2.1 FIRST FLOOR PLAN - MECHANICAL 9/22/97
M2.2. SECOND FLOOR PLAN - MECHANICAL 9/22/97
M2.3 THIRD FLOOR PLAN - MECHANICAL 9/22/97
M3.1 ENLARGED MECHANICAL PLANS - FIRST LEVEL 9/22/97
M3.2 ENLARGED MECHANICAL PLANS - SECOND LEVEL 9/22/97
M3.3 ENLARGED MECHANICAL PLANS - THIRD LEVEL 9/22/97
M4.1 SECTIONS 9/22/97
M5.1 CONTROLS - DIAGRAMS 9/22/97
M6.1 SCHEDULES 9/22/97
M7.1 DETAILS 9/22/97
P2.1 LEVEL ONE FLOOR PLAN PLUMBING PLANS 5/22/97
P2.2 LEVEL TWO FLOOR PLAN PLUMBING PLANS 5/22/97
P2.3 LEVEL THREE FLOOR PLAN PLUMBING PLAN 5/22/97
P3.1 ENLARGED PLUMBING PLANS/WATER PIPING 5/22/97
P3.2 ENLARGED PLUMBING PLANS/WATER PIPING 5/22/97
P4.1 WASTE AND VENT SCHEMATICS 5/22/97
ELECTRICAL
----------
E1.1 ELECTRICAL SITE PLAN 6/26/97
E2.1 FIRST FLOOR ELECTRICAL PLAN 5/21/97
E2.2 SECOND FLOOR ELECTRICAL PLAN 5/21/97
E2.3 THIRD FLOOR ELECTRICAL PLAN 5/21/97
E2.4 FIRST FLOOR LIGHTING PLAN 10/9/97
E2.5 SECOND AND THIRD FLOOR LIGHTING PLAN 10/9/97
E2.6 FIRST FLOOR POWER PLAN 10/9/97
E2.7 SECOND AND THIRD FLOOR POWER PLANS 10/9/97
E4.1 ELECTRICAL SINGLE-LINE DIAGRAM 5/21/97
E4.2 ELECTRICAL SINGLE-LINE DIAGRAM 5/21/97
E4.3 ELECTRICAL SYMBOLS & RISER DIAGRAMS 5/21/97
E5.1 ELECTRICAL SCHEDULES 5/21/97
Exhibit F
(Page 2 of 2)
JDA SOFTWARE
Revised - August 14, 1998
INITIAL REVISED PROJECT
REQUIREMENT REQUIREMENT TOTALS
95,000 RSF 11 5,000 RSF 136,000 RSF
----------- ------------ -----------
95,000 115,000 136,000
69.85% 84.56% 100%
LAND 435,600 SF @ $9.50 New Factor Total Factor
$4,138,200 X 74.85%* $ 3,097,564 x87.12* $ 3,605,192 x100% $ 4,138,200
BUILDING
Shell Design 98,835 GSF @ $ 3.00 $ 296,504 119,642 GSF $ 358,926 141,490 GSF $ 424,470
Shell Building 98,835 GSF @ $46.18 4,564,185 119,642 GSF 5,525,068 141,490 GSF 6,534,008
Tenant Improvements 90,000 USF @ $30.00 2,700,000 108,947 USF 3,268.410 128,842 USF 3,865,260
----------- ------------ -----------
TOTAL BUILDING COSTS $ 7,560,689 $ 9,152,404 $10,823,738
DEVELOPMENT COSTS
Survey $ 3,493 $ 4,228 $ 5,000
Soil & Environmental 6,985 8,456 10,000
Real Estate Taxes 46,463 54,078 62,073
Legal Expenses 52,390 63,419 75,000
Advertising & Marketing 0 0 0
Development Fee @ 3% $ 366,406 443,666 524,538
----------- ------------ -----------
TOTAL DEVELOPMENT COSTS $ 475,737 $ 573,847 $ 676,711
FINANCING COSTS
Land Carry - 11 Mos. @ 8% $ 227,155 $ 264,381 $ 303,468
Construction Loan - 10.5 Mos. @ 8% 295,310 357,406 422,604
Financing Charge @ 1/2% 61,068 73,924 87,423
----------- ------------ -----------
TOTAL FINANCING COSTS $ 583,532 $ 695,711 $ 813,495
COMMISSIONS 95,000 RSF @ 4% (1-5) & 2% (6-10) $ 400,995 485,415 $ 574,056
DEVELOPMENT CONTINGENCY $ 95,000 272,217 458,515
----------- ------------ -----------
TOTAL PROJECT COSTS 95,000 SF @ $128.56 $12,213,517 $ 14,784,785 $17,484,616
RATE RETURN @ 10.42% x 10.42% x 10.42% x 10.42%
----------- ------------ -----------
ANNUAL NET RENT $ 1,272,649 $ 1,540,575 $ 1,821,897
NET RENT BASED ON 95,000 RSF $ 13.40 115,000 RSF $ 13.40 136,000 RSF $ 13.40
* Landlord to apply a two point five six percent (2.56%) adjustment to the JDA
land allocation to justify risk associated with Tenant's future expansion
requirement and corresponding speculative space. Factor was reduced from 5% to
2.56% to correspond with the reduction in the remaining speculative space.
SECOND AMENDMENT TO OFFICE LEASE
SCOTTSDALE NORTHSIGHT
This Second Amendment to Office Lease (the "Amendment") dated as of the
23 day of November, 1998, by and between OPUS WEST CORPORATION, a Minnesota
corporation ("Lessor") and JDA SOFTWARE GROUP, INC., a Delaware corporation
("Lessee").
RECITALS
1. By that Lease dated as of April 30, 1998 (the "Lease") by and
between Lessor and Lessee, the parties agreed to lease approximately 95,000
rentable square feet (the "Premises"), within that Office Complex to be
constructed by Lessor, west and contiguous to 00xx Xxxxxx and South of Raintree
Drive in Scottsdale, Arizona;
2. By that First Amendment to Office Lease dated June 30, 1998
(herein, the "First Amendment" ), Lessor and Lessee amended the Lease to provide
that the Premises shall be comprised of the entire second (2nd) and third (3rd)
floor of the Building, plus (approximately) 20,000 rentable square feet located
in the first floor of the Building. Said First Amendment constituted Lessee's
election under Article XXI of the Lease, to increase the size of the Premises by
notice to Lessor given prior to the issuance of the Permit Date (as defined
therein) to an area not to exceed 115,000 rentable square feet.
3. By this Amendment, Lessee and Lessor intend to increase again,
the size of the Premises, such that the total area shall be 121,141 rentable
square feet of space.
THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
A. Notwithstanding any provision in the Lease to the contrary,
the parties agree that the Premises shall be comprised of the entire second
(2nd) and third (3rd) floor of the Building, plus that portion of the first
floor, such that the total area of the Premises shall be (approximately) 121,141
rentable square feet. Exhibit A-l attached to this Amendment sets forth the
conceptual depiction and location of the Premises as expanded hereby. Such
adjustment in the rentable area of the Premises shall be effective for all
purposes referenced in the Lease, including, without limitation, in the
determination of the Lessee's Pro Rata Share of Real Estate Taxes and Operating
Expenses, the Tenant Improvement Allowance (although said amount shall continue
to be computed based upon usable square feet), the allocation of parking rights
pursuant to Article XLIII (i.e. at the rate of six (6) spaces per 1,000 rentable
square feet), and for other purposes set forth in the Lease. Notwithstanding the
foregoing, the commencement date memorandum to be executed by the parties
pursuant to Article XXVIII of the Lease shall control as to the exact amount of
rentable and usable area for the Premises.
B. Exhibit E, TOTAL PROJECT COSTS, attached to the Lease, is
hereby replaced with Exhibit E, attached hereto.
C. Except as specifically modified or amended hereby, the parties
confirm and ratify the Lease, as amended by the First Amendment and this
Amendment, as enforceable and binding in accordance with its terms and
provisions. All capitalized terms not otherwise defined herein shall have the
meanings provided in the Lease.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the undersigned parties have executed this
Amendment to be effective as of the date first written above.
LESSOR: LESSEE:
OPUS WEST CORPORATION, a JDA SOFTWARE GROUP, INC., a
Minnesota corporation Delaware corporation
By /s/ Xxxxxx X. Xxxxxxx By /s/ XXXXXXX X XXXXXXXX
---------------------- -----------------------------
Xxxxxx X. Xxxxxxx Name XXXXXXX X XXXXXXXX
Its President Print________________________
Its: CHIEF FINANCIAL OFFICER
[THIRD FLOOR PLAN]
EXHIBIT A-1
PAGE 1 of 3
[SECOND FLOOR PLAN]
EXHIBIT A-1
PAGE 2 of 3
[FIRST FLOOR PLAN]
EXHIBIT A-1
PAGE 3 of 3
REVISED AND RESTATED
THIRD AMENDMENT TO LEASE AGREEMENT
This Revised and Restated Third Amendment to Lease Agreement
(the "Amendment") is dated to be effective as of this 20th day of October, 1999,
by and between JDA SOFTWARE GROUP, INC., a Delaware corporation ("Lessee") and
OPUS WEST CORPORATION, a Minnesota corporation ("Lessor").
RECITALS
A. WHEREAS, Lessee and Lessor entered into that Lease
Agreement dated April 30, 1998, as amended by that First Amendment to Office
Lease dated June 30, 1998, and that Second Amendment to Office Lease dated
November 23, 1998 (collectively, said Lease Agreement and the amendments thereto
are referred to as the "Lease"), all in regard to the leasing by Lessee from
Lessor of certain premises at that project known as Scottsdale Northsight,
located west and contiguous to 87th Street, and south of Raintree Drive in
Scottsdale, Arizona; and
B. WHEREAS, said Lease allows the Lessee to make certain
improvements and alterations, but only to its Premises, and notwithstanding, the
Lessee has installed certain cables and conduits in portions of the Building
which are outside the Premises; and
C. WHEREAS, Lessor is willing to allow said improvements
to remain in their existing location, but only subject to the provisions of this
Amendment;
D. WHEREAS, the parties entered into that Third
Amendment to Lease Agreement, dated October 8, 1999, and intend, by the
execution of this Amendment to supercede and replace, in its entirety said Third
Amendment with this Amendment;
THEREFORE, for valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Notwithstanding anything in the Lease to the
contrary, the existing cables, wires and conduits installed by the Lessee in
portions outside the Premises at the Building (the "Cables") shall be allowed to
remain in their present, existing locations, and in this regard, the Lessor
grants its consent to the placement of such cables.
2. Lessee agrees that Lessor, and its contractors,
affiliates, employees and agents (collectively, the "Lessor Parties") shall have
no responsibility or liability in regard to the repair, maintenance or
replacement of said Cables, however, Lessor agrees that the Lessor Parties shall
not intentionally nor willfully damage or interfere with the Cables, and Lessor
shall not intentionally permit any other tenant at the Building to damage or
interfere with the Cables.
3. Further, Lessor and any occupant (including tenants)
of portions of the Building in which the cables, wires and conduits are placed
shall have a right superior to that of Lessee in regard to possession and access
to the areas of the Building in which said cables, wires and conduits are
located. Lessee must first obtain the consent of any such occupant, in addition
to the consent of the Lessor (which consent shall not be unreasonably withheld),
prior to entering into such portions of the Building in which the Cables exist,
for the purpose of repair, maintenance, replacement thereof, or any other
purpose. Lessor agrees to cooperate with Lessee in obtaining the consent of such
occupant, and to exercise any rights reserved by Lessor under the lease with any
such occupant, in order to provide access to such areas for Lessee's benefit.
4. Except as expressly consented to by Lessor herein,
Lessee agrees to adhere to the provisions of the Lease, and to not place any
cables, wires or conduits or any other improvements outside of the Premises
without the express prior written consent of the Lessor, which consent shall not
be unreasonably withheld.
5. The provisions of Article I. Base Rent of the Lease,
which provide for an adjustment to the Base Rent in the event the Total Project
Costs actually incurred vary from the Total Project Costs pursuant to the
project budget are hereby irrevocably waived by the parties. Accordingly, there
shall be no adjustment in the Base Rent and the parties confirm and agree that
the Base Rent will be the product of $13.40 or $15.41 (as the case may be, and
for the applicable periods, as provided in Article I. Base Rent) times the
rentable square feet of the Premises.
6. Except as expressly modified hereby, the parties
hereby confirm and ratify the provisions of the Lease, as being enforceable and
binding in accordance with its terms. Any capitalized terms used herein and not
otherwise defined shall have the meanings provided in the Lease.
IN WITNESS WHEREOF, the undersigned parties have executed this
Amendment to be effective as of the date first written above.
JDA SOFTWARE GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Its: VICE PRESIDENT
OPUS WEST CORPORATION,
a Minnesota corporation
BY: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Its: XXXXXX X. XXXXXXX
PRESIDENT
05/01/01
05/07/01
05/15/01
05/22/01
FOURTH AMENDMENT TO OFFICE LEASE
SCOTTSDALE NORTHSIGHT
THIS FOURTH AMENDMENT TO OFFICE LEASE (the "Fourth Amendment")
is made and entered into as of the 30 day of May, 2001, by and between OPUS REAL
ESTATE ARIZONA II, L.L.C., a Delaware limited liability company ("Lessor"), and
JDA SOFTWARE GROUP, INC., a Delaware corporation ("Lessee").
WHEREAS, Opus West Corporation, a Minnesota corporation,
predecessor in interest to Lessor, and Lessee entered into that certain Office
Lease dated April 30, 1998, as amended by that certain First Amendment to Office
Lease dated June 30, 1998, that certain Second Amendment to Office Lease dated
November 23, 1998, that certain Third Amendment to Lease Agreement dated October
8, 1999, and that certain Revised and Restated Third Amendment to Lease
Agreement dated October 20, 1999 (as amended, the "Lease"), all in regard to the
leasing by Lessee from Lessor of certain premises at that certain project known
as Scottsdale Northsight, located west of and contiguous to 87th Street, and
south of Raintree Drive, in Scottsdale, Arizona; and
WHEREAS, the parties desire to modify the Lease as hereinafter
set forth in this Fourth Amendment.
NOW, THEREFORE, in consideration of the premises herein
contained and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. The terms and provisions of this Fourth Amendment
shall be effective on the date of this Fourth Amendment. All capitalized terms
used in this Fourth Amendment, unless otherwise defined herein, shall have the
same meanings given to them in the Lease.
2. The second sentence of Article X of the Lease is
hereby deleted in its entirety and the following sentence is hereby substituted
in its place:
Notwithstanding the foregoing, a sublease or
assignment to a subsidiary of Lessee, or a
sale of all or substantially all of Lessee's
assets or an arrangement resulting from a
merger or reorganization in which the
purchasing or surviving entity, as the case
may be, has a "Tangible Net Worth" (defined
in Article VI) of not less than Lessee's
immediately prior to the purchase, merger or
reorganization, shall not require the consent
of Lessor.
3. Except as otherwise expressly modified in this Fourth
Amendment, the terms and provisions of the Lease are and shall remain in full
force and effect. In the event of
any conflict or inconsistency between the terms and provisions of the Lease and
the terms and provisions of this Fourth Amendment, the terms and provisions of
this Fourth Amendment shall govern and control.
4. This Fourth Amendment may be executed in any number
of counterparts, all of which together shall be deemed to constitute one
instrument, and each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Fourth
Amendment to Office Lease as of the day and year first above written.
Lessor: Lessee:
OPUS REAL ESTATE ARIZONA II, L.L.C., a JDA SOFTWARE GROUP, INC., a
Delaware limited liability company Delaware corporation
By /s/ Xxxx Xxx By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------- ----------------------------
Name: XXXX XXX Name: _________________________
Title: VICE PRESIDENT Title:_________________________
2
05/22/01
05/23/01
FIFTH AMENDMENT TO OFFICE LEASE
SCOTTSDALE NORTHSIGHT
THIS FIFTH AMENDMENT TO OFFICE LEASE (the "Fifth Amendment")
is made and entered into as of the 31 day of May, 2001, by and between OPUS REAL
ESTATE ARIZONA II, L.L.C., a Delaware limited liability company ("Lessor"), and
JDA SOFTWARE GROUP, INC., a Delaware corporation ("Lessee").
WHEREAS, Opus West Corporation, a Minnesota corporation,
predecessor in interest to Lessor, and Lessee entered into that certain Office
Lease dated April 30, 1998, as amended by that certain First Amendment to Office
Lease dated June 30, 1998, that certain Second Amendment to Office Lease dated
November 23, 1998, that certain Third Amendment to Lease Agreement dated October
8, 1999, that certain Revised and Restated Third Amendment to Lease Agreement
dated October 20, 1999, and Lessor and Lessee entered into that certain Fourth
Amendment to Office Lease dated May 30, 2001 (as amended, the "Lease"), all in
regard to the leasing by Lessee from Lessor of certain premises at that certain
project known as Scottsdale Northsight, located west of and contiguous to 87th
Street, and south of Raintree Drive, in Scottsdale, Arizona; and
WHEREAS, pursuant to Article XXIX of the Lease ("Future
Development"), Lessor and Lessee acknowledge that (i) the Office Complex as
initially constructed is the first phase of a proposed two-phase integrated
commercial real estate development, and (ii) as an accommodation to Lessee and
the developer of that parcel, Lessor shall cooperate with Lessee and such
developer in the construction of said second phase development on the terms set
forth herein.
NOW, THEREFORE, in consideration of the premises herein
contained and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. The terms and provisions of this Fifth Amendment
shall be effective on the date of this Fifth Amendment. All capitalized terms
used in this Fifth Amendment, unless otherwise defined herein, shall have the
same meanings given to them in the Lease.
2. The parties acknowledge that Opus West Corporation, a
Minnesota corporation, or its designee (collectively, "Developer"), may, but has
no obligation to, commence construction of a parking structure (the "Parking
Structure") that will serve the Office Complex on an approximate 5-acre parcel
that is north of and adjacent to the Property (the "Adjacent Parcel"). Such
Parking Structure will (i) consist of two parking levels, (ii) be located
entirely on the Adjacent Parcel, and (iii) be set back a minimum of seventy (70)
feet from 00xx Xxxxxx.
3. Lessor intends to permit Developer to stage its
construction activities in connection with the construction of such Parking
Structure on the Property. Lessor will provide Lessee with notice that Lessor
has given such permission to Developer prior to the
commencement of any such staging activities by Developer. Lessee acknowledges
that such staging activities may create a disruption to Lessee's access to
parking within the Office Complex and utilization of the Premises. During such
construction, Lessor will cause Developer to take commercially reasonable steps
to minimize the disruption to Lessee's access to parking on the Property and
utilization of the Premises; provided, however, that in no event will Lessor
permit Developer to prohibit access to the parking areas serving the Property.
Lessor will also not permit Developer to occupy parking spaces on the Property
without first (i) obtaining Lessee's consent as to the location and
configuration of the parking spaces to be occupied by the Developer, which
consent shall not be unreasonably withheld, and (ii) if the parking spaces so
occupied are covered parking spaces, providing for substitute covered parking
spaces on the Property for the duration of the time Developer occupies such
assigned covered parking spaces.
4. If Developer elects to construct the Parking
Structure, then at such time as construction of the Parking Structure is
completed, Lessor and Developer intend to swap the Adjacent Parcel for a portion
of the Property (the "Exchange") so that Developer can construct an additional
office building thereon (such portion of the Property is referred to herein as
"Phase II"). At such time as Lessor obtains title to the Adjacent Parcel and
Developer obtains title to Phase II (the "Exchange Date"), the site plan
attached to the Lease as Exhibit A will be deemed deleted and replaced with the
site plan attached hereto as Exhibit A. From and after the Exchange Date, Lessee
acknowledges and agrees that (i) the phrase "Property" in the Lease will
thereafter refer to the Adjacent Parcel and all of the original Property less
Phase II, and (ii) the phrase "Office Complex" in the Lease will thereafter
refer to the "Property", as amended, and all buildings and improvements and
personal property of Lessor used in connection with the operation or maintenance
thereof located therein and thereon and the appurtenant parking facilities,
including the Parking Structure.
5. At such time as Lessor obtains title to the Adjacent
Parcel, Lessor shall give Lessee written notice thereof and the parties agree
that Lessor will relocate all of Lessee's parking from the existing surface
parking location on the Property to the Parking Structure, which spaces will be
located generally within the area depicted on Exhibit B attached hereto.
6. As described above, the parties acknowledge that
Developer may commence construction of an office building and related
improvements ("Phase II Office Building") on Phase II; provided, however, that
Lessor will not permit Developer to construct such Phase II Office Building
until such time as Developer has completed construction of the Parking Structure
and the Exchange has been completed.
7. The parties acknowledge that this Fifth Amendment has
been executed by Lessor and Lessee in anticipation of (i) Developer acquiring
title to the Adjacent Parcel, (ii) Developer constructing the Parking Structure
thereon, (iii) Developer and Lessor entering into an agreement to swap the
Adjacent Parcel for a portion of the Property, and (iv) Developer constructing
the Phase II Office Building on Phase II. As a result, the parties agree that
the provisions of this Fifth Amendment shall be contingent upon (i) Developer
acquiring title to the Adjacent Parcel on or before December 31, 2001, and (ii)
Developer and Lessor entering into an agreement to swap the Adjacent Parcel for
a portion of the Property on or before December 31, 2001. In the event either of
these conditions are not timely satisfied, then in that event the terms and
provisions of this Fifth Amendment shall automatically and without further
action of the parties be null, void and of no further force or effect.
2
8. Except as otherwise expressly modified in this Fifth
Amendment, the terms and provisions of the Lease are and shall remain in full
force and effect. In the event of any conflict or inconsistency between the
terms and provisions of the Lease and the terms and provisions of this Fifth
Amendment, the terms and provisions of this Fifth Amendment shall govern and
control.
9. This Fifth Amendment may be executed in any number of
counterparts, all of which together shall be deemed to constitute one
instrument, and each of which shall be deemed an original.
[SIGNATURES APPEAR ON NEXT PAGE]
3
IN WITNESS WHEREOF, the parties have executed this Fifth
Amendment to Office Lease as of the day and year first above written.
Lessor: Lessee:
OPUS REAL ESTATE ARIZONA II, L.L.C., JDA SOFTWARE GROUP, INC., a
a Delaware limited liability company Delaware corporation
By /s/ Xxxx Xxx By /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------- --------------------------
Name: XXXX XXX Name: Xxxxxxx X. Xxxxxxxx
Title: VICE PRESIDENT Title: EXEC. VP/CFO
4
EXHIBIT A
SITE PLAN
[CONCEPTUAL SITE PLAN]
Exhibit A
(Page 1 of 1)
EXHIBIT B
PARKING STRUCTURE SITE PLAN
[PARKING EXHIBIT]
Exhibit B
(Page 1 of 1)
SIXTH AMENDMENT TO OFFICE LEASE
SCOTTSDALE NORTHSIGHT
THIS SIXTH AMENDMENT TO OFFICE LEASE (the "Sixth Amendment")
is made and entered into as of the ________________ day of August, 2001, by and
between OPUS REAL ESTATE ARIZONA II, L.L.C., a Delaware limited liability
company ("Lessor"), and JDA SOFTWARE GROUP, INC., a Delaware corporation
("Lessee").
WHEREAS, Opus West Corporation, a Minnesota corporation,
predecessor in interest to Lessor, and Lessee entered into that certain Office
Lease dated April 30, 1998, as amended by that certain First Amendment to Office
Lease dated June 30, 1998, that certain Second Amendment to Office Lease dated
November 23, 1998, that certain Third Amendment to Lease Agreement dated October
8, 1999, that certain Revised and Restated Third Amendment to Lease Agreement
dated October 20, 1999, that certain Fourth Amendment to Office Lease dated May
30, 2001, and that certain Fifth Amendment to Office Lease (the "Fifth
Amendment") dated May 31, 2001 (as amended, the "Lease"), all in regard to the
leasing by Lessee from Lessor of certain premises at that certain project known
as Scottsdale Northsight, located west of and contiguous to 87th Street, and
south of Raintree Drive, in Scottsdale, Arizona; and
WHEREAS, the parties desire to modify the Lease as hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises herein
contained and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. The terms and provisions of this Sixth Amendment shall be
effective on the date of this Sixth Amendment. All capitalized terms used in
this Sixth Amendment, unless otherwise defined herein, shall have the same
meanings given to them in the Lease.
2. Lessor or Developer (as defined in the Fifth Amendment), may,
but have no obligation to, construct the proposed Phase II Office Building (as
defined in the Fifth Amendment).
3. The Phase II Office Building, if and when constructed, may
consist of a two- or three-story office building in generally the configuration
shown on Exhibit "A" attached hereto and incorporated herein.
4. The Parking Structure, if and when constructed by Lessor or
Developer and acquired by Lessor, will contain not less than 426 parking spaces,
of which at least 200 will be covered.
5. Article XLIII grants Tenant the right to six (6) parking
spaces per one thousand (1,000) rentable square feet of the Premises. The Second
Amendment to Office Lease dated November 23, 1998 indicates that, for purposes
of Article XLIII, the Premises consists of 121,141 rentable square feet. Tenant
is currently entitled to 726 parking spaces of which 298 are covered parking
spaces. If Developer and Lessor consummate the "Exchange", as described in
the Fifth Amendment, Article XLIII of the Lease is automatically amended as of
the Exchange Date to:
(a) reduce the number of parking spaces the Lessor is
obligated to construct on the Property and provide to Lessee from 6 per
1,000 rentable square feet in the Premises to 5.5 per 1,000 rentable
square feet in the Premises; and
(b) the number of the parking spaces Lessor is obligated
to provide to Lessee which must be covered parking spaces remains 298
and may be increased to 328 pursuant to Section 6 below.
If Lessee rents additional space from Lessor pursuant to Article XXX of the
Lease, Lessor must provide Lessee 5.5 parking spaces per 1,000 rentable square
feet in the additional space and approximately thirty-five percent (35%) of such
parking spaces must be covered parking spaces.
6. Section 5 of the Fifth Amendment is hereby deleted in its
entirety and replaced with the following:
5. Prior to commencement of construction of the Phase II
Building, Lessor shall give Lessee written notice thereof and
Lessee's parking spaces will automatically be relocated from
the surface parking lot located on the Property to a surface
parking lot Developer or Lessor will construct on Phase II
prior to the Exchange and to the Parking Structure. Lessor
must relocate at least 200 of Lessee's covered parking spaces
to covered parking spaces in the Parking Structure. The 200
covered parking spaces in the Parking Structure must be
located in the easternmost portions of the Parking Structure.
Lessor may relocate the remaining 98 covered spaces Lessor is
obligated to provide to Lessee either to covered spaces in the
Parking Structure or to covered spaces on the surface parking
lot to be constructed on Phase II. If Lessor does not relocate
all 298 of the covered parking spaces Lessor is obligated to
provide to Lessee to covered spaces in the Parking Structure,
Lessor must, at no cost to Lessee, increase the number of
covered parking spaces Lessor provides to Lessee from 298 to
328. If Lessor is obligated to increase the number of covered
parking spaces Lessor provides to Lessee from 298 to 328,
Lessor is not obligated to increase the number of total
parking spaces Lessor provides to Lessee, so Lessee will have
30 fewer uncovered parking spaces.
7. Except as otherwise expressly modified in this Sixth
Amendment, the terms and provisions of the Lease are and shall remain in full
force and effect. In the event of any conflict or inconsistency between the
terms and provisions of the Lease and the terms and provisions of this Sixth
Amendment, the terms and provisions of this Sixth Amendment shall govern and
control.
2
8. This Sixth Amendment may be executed in any number of
counterparts, all of which together shall be deemed to constitute one
instrument, and each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Sixth
Amendment to Office Lease as of the day and year first above written.
Lessor: Lessee:
OPUS REAL ESTATE ARIZONA II, JDA SOFTWARE GROUP, INC., a
L.L.C., a Delaware limited liability Delaware corporation
company
By /s/ Xxxx Xxx By /s/ Xxxxxxx X. Xxxxxxxx
------------------ ----------------------------
Name: XXXX XXX Name: XXXXXXX X. XXXXXXXX
Title: VICE PRESIDENT Title: EXECUTIVE VICE PRESIDENT
3
[CONCEPTUAL SITE PLAN]
EXHIBIT A
SEVENTH AMENDMENT TO OFFICE LEASE
SCOTTSDALE NORTHSIGHT
THIS SEVENTH AMENDMENT TO OFFICE LEASE (the "Seventh
Amendment") is made and entered into as of the 30th day of June, 2003, by and
between OPUS REAL ESTATE ARIZONA II, L.L.C., a Delaware limited liability
company ("Lessor"), and XXX SOFTWARE GROUP, INC., a Delaware corporation
("Lessee").
WHEREAS, Opus West Corporation, a Minnesota corporation,
predecessor in interest to Lessor, and Lessee entered into that certain Office
Lease dated April 30, 1998, as amended by that certain First Amendment to Office
Lease dated June 30, 1998, that certain Second Amendment to Office Lease dated
November 23, 1998, that certain Third Amendment to Lease Agreement dated October
8, 1999, that certain Revised and Restated Third Amendment to Lease Agreement
dated October 20, 1999, that certain Fourth Amendment to Office Lease dated May
30, 2001, that certain Fifth Amendment to Office Lease (the "Fifth Amendment")
dated May 31, 2001, and that certain Sixth Amendment to Office Lease dated as of
August 31, 2001 (the "Sixth Amendment") (as amended, the "Lease"), all in regard
to the leasing by Lessee from Lessor of certain premises at that certain project
known as Scottsdale Northsight, located west of and contiguous to 87th Street,
and south of Raintree Drive, in Scottsdale, Arizona; and
WHEREAS, the parties desire to modify the Lease as hereinafter
set forth.
NOW, THEREFORE, in consideration of the premises herein
contained and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
1. The terms and provisions of this Seventh Amendment shall be
effective on the date of this Seventh Amendment. All capitalized terms used in
this Seventh Amendment, unless otherwise defined herein, shall have the same
meanings given to them in the Lease.
2. The second reference to "December 31, 2001" within Section 7
of the Fifth Amendment is hereby deleted and the phrase "August 31, 2003" is
substituted in its place. Accordingly, notwithstanding anything to the contrary
contained in the Fifth Amendment or elsewhere in the Lease, the terms and
provisions of the Fifth Amendment shall not be deemed null, void and of no force
or effect pursuant to the provisions of Section 7 of the Fifth Amendment unless
and until Developer and Lessor fail to enter into an agreement to swap the
Adjacent Parcel for a portion of the Property on or before August 31, 2003.
3. Notwithstanding anything to the contrary contained in the
Lease, the initial term of the Lease is hereby extended through, and shall
expire on, December 31, 2014, which extension period is inclusive of the First
Renewal Term, as defined in Article XXXI of the Lease. From and after the date
of this Seventh Amendment, Article XXXI of the Lease is hereby deleted from the
Lease in its entirety; provided, however, that Lessee shall be deemed to have
exercised its option to extend the term of the Lease for the First Renewal Term
for purposes of Article XXXII of the Lease.
4. Lessee hereby waives Lessee's early termination rights under
Article XXXVIII of the Lease. From and after the date of this Seventh Amendment,
the terms and provisions of Article XXXVIII of the Lease shall be null, void and
of no further force and effect.
5. The parties hereby acknowledge and agree that Lessee timely
notified Lessor of Lessee's election to exercise Lessee's Offer Right pursuant
to Article XXX of the Lease. Lessor hereby agrees to make the remaining portions
of the rentable areas of the Building (the "Additional Space"), which consist of
approximately 15,942 rentable square feet in the aggregate, available for lease
by Lessee, and Lessee hereby agrees to lease the Additional Space from Lessor,
commencing on the date that is sixty (60) days after Lessor delivers possession
of the Additional Space to Lessee for Lessee's installation of any tenant
improvements therein in accordance with Section 8 of this Seventh Amendment (the
"Additional Space Commencement Date") and continuing thereafter throughout the
remainder of the term of the Lease. Tenant's lease of the Additional Space will
in all events be coterminous with Tenant's lease of the remainder of the
Premises, as may be extended under the Lease.
6. Commencing on the Additional Space Commencement Date and
continuing thereafter throughout the remainder of the initial term of the Lease
(as extended pursuant to Section 3 of this Seventh Amendment), (i) the Premises
shall be deemed to consist of the existing Premises and the Additional Space, or
137,083 rentable square feet of space, for all purposes under the Lease,
including, without limitation, for purposes of calculating Lessee's Pro Rata
Share of Real Estate Taxes and Operating Expenses (which pro rata share will be
equal to 100% of Real Estate Taxes and Operating Expenses for the Building), and
(ii) Lessee will pay Base Rent (based upon a Premises consisting of 137,083
rentable square feet of space) in accordance with the following schedule:
Applicable Portion Annual Rental Rate Per
of Term Rentable Square Foot
------------------ ----------------------
Additional Space Commencement $14.50
Date-12/31/09
01/01/10-12/31/14 $16.25
Prior to the Additional Space Commencement Date, the Premises shall be deemed to
consist of the existing Premises only, or 121,141 rentable square feet of space,
for all purposes under the Lease, including, without limitation, for purposes of
calculating Lessee's Pro Rata Share of Real Estate Taxes and Operating Expenses.
In the event the Additional Space Commencement Date occurs prior to January 1,
2005, then in that event Lessee will pay Base Rent (based upon a Premises
consisting of 121,141 rentable square feet of space) in accordance with Article
I of the Lease through the Additional Space Commencement Date and thereafter
Lessee will pay Base Rent in accordance with subsection (ii) of the second
preceding sentence. In the event the Additional Space Commencement Date occurs
after January 1, 2005, then in that event Lessee will pay Base Rent (based upon
a Premises consisting of 121,141 rentable square feet of space) in accordance
with Article I of the Lease through December 31, 2004, Lessee will pay Base Rent
(based upon a Premises consisting of 121,141 rentable square feet of space)
based upon an annual rental rate of $14.50 per rentable square foot of the
Premises commencing on January 1,
2
2005 through the Additional Space Commencement Date and thereafter Lessee will
pay Base Rent in accordance with subsection (ii) of the third preceding
sentence.
7. Promptly following the expiration of the existing third party
leases for portions of the Additional Space and the applicable third party's
vacation thereof, Lessor agrees to deliver such portions of the Additional Space
to Lessee for Lessee's installation of any tenant improvements therein, which
tenant improvements, if any, will in all events be considered "Work" for
purposes of Article VIII of the Lease. Notwithstanding anything to the contrary
contained in the Lease, Lessor shall have no obligation to construct, or pay any
portion of the cost of, any tenant improvements installed in the Additional
Space or any portion of the existing Premises in connection with any build out
of the Additional Space by Lessee. Lessor hereby agrees to use commercially
reasonable efforts to cause those certain third party tenants occupying the
Additional Space as of the date of this Seventh Amendment to vacate such
tenants' respective spaces promptly following the expiration of such tenants'
leases for such spaces. Lessor further agrees that Lessor will not consent to
any holdovers by any such tenants in such spaces after the expiration of the
respective leases.
8. Pursuant to Section 5 of the Sixth Amendment, from and after
the Additional Space Commencement Date, in addition to those parking spaces
provided to Lessee based upon a Premises consisting of the existing Premises
only, Lessor will provide to Lessee 5.5 parking spaces per 1,000 rentable square
feet of the Additional Space, thirty-five percent (35%) of which will be covered
parking spaces (or 88 total additional parking spaces [31 of which will be
covered parking spaces] based upon an Additional Space consisting of 15,942
rentable square feet). Except as expressly set forth to the contrary in this
Section 8, all such parking spaces will be provided to Lessee pursuant to the
terms and provisions of the Lease, including, without limitation, Article XLIII
thereof.
9. Commencing on the Additional Space Commencement Date, based
upon the additional parking spaces to be provided to Lessee pursuant to Section
8 of this Seventh Amendment, Section 6 of the Sixth Amendment is hereby deleted
in its entirety and the following text is substituted in its place:
6. Prior to commencement of construction of the Phase II
Building, Lessor shall give Lessee written notice thereof and
Lessee's parking spaces will automatically be relocated from
the surface parking lot located on the Property to a surface
parking lot Developer or Lessor will construct on Phase II
prior to the Exchange and to the Parking Structure. Lessor
must relocate at least 210 of Lessee's covered parking spaces
to covered parking spaces in the Parking Structure. The 210
covered parking spaces in the Parking Structure must be
located in the easternmost portions of the Parking Structure.
Lessor may relocate the remaining 119 covered spaces Lessor is
obligated to provide to Lessee either to covered spaces in the
Parking Structure or to covered spaces on the surface parking
lot to be constructed on Phase II. If Lessor does not relocate
all 329 of the covered parking spaces Lessor is obligated to
provide to Lessee to covered spaces
3
in the Parking Structure, Lessor must, at no cost to Lessee,
increase the number of covered parking spaces Lessor provides
to Lessee from 329 to 359. If Lessor is obligated to increase
the number of covered parking spaces Lessor provides to Lessee
from 329 to 359, Lessor is not obligated to increase the
number of total parking spaces Lessor provides to Lessee, so
Lessee will have 30 fewer uncovered parking spaces.
10. Tenant represents that Tenant has dealt with no brokers in
connection with this Seventh Amendment other than Xxx & Associates Arizona
Commercial Real Estate Services Com. and Opus West Management Corporation
(collectively, the "Brokers") and that insofar as Tenant knows, no other broker
negotiated or participated in negotiations of this Seventh Amendment or is
entitled to any commission in connection therewith. Landlord and Tenant agree
that no broker (other than the Brokers) shall be entitled to any commission in
connection with the expansion of the Premises. Tenant shall defend, indemnify
and hold harmless Landlord from and against any and all claims of brokers,
finders or any like third party claiming any right to commission or compensation
by or through acts of Tenant in connection herewith other than the Brokers.
Landlord shall pay the Brokers pursuant to a separate agreement and shall
defend, indemnify and hold harmless Tenant from and against any and all claims
of brokers, finders or any like third party claiming any right to commission or
compensation by or through acts of Landlord in connection herewith including the
Brokers.
11. Except as otherwise expressly modified in this Seventh
Amendment, the terms and provisions of the Lease are and shall remain in full
force and effect. In the event of any conflict or inconsistency between the
terms and provisions of the Lease and the terms and provisions of this Seventh
Amendment, the terms and provisions of this Seventh Amendment shall govern and
control.
12. This Seventh Amendment may be executed in any number of
counterparts, all of which together shall be deemed to constitute one
instrument, and each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Seventh
Amendment to Office Lease as of the day and year first above written.
Lessor: Lessee:
OPUS REAL ESTATE ARIZONA II, JDA SOFTWARE GROUP, INC., a
L.L.C., a Delaware limited liability Delaware corporation
company
By /s/ Xxxxxx X. Xxxxxx By /s/ Xxxxxxx X. Xxxxxxxx
-------------------- -----------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President Title: EVP/CFO
4
[OPUS LETTERHEAD]
June 30, 2003
VIA FEDERAL EXPRESS
JDA Software Group, Inc.
00000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, CFO
Re: Office Lease Scottsdale Northsight II dated May 25,
2001 by and between Opus West Corporation, a
Minnesota corporation ("Opus West"), and JDA Software
Group, Inc., a Delaware corporation ("JDA"), as
terminated by that certain Letter Agreement dated
September 19, 2001 between Opus West and JDA (as
terminated, the "Lease")
Ladies and Gentlemen:
You will recall that Articles XXIX (Expansion Right) and XXXV
(First Right of Offer) of the Lease survived the termination thereof. In light
of the fact that Opus West presently plans to acquire the Property and construct
the Building thereon (the "Phase II Building"), the purpose of this letter
agreement (the "Letter Agreement") is to confirm the understanding between the
parties in connection with, and to restate in their entirety, JDA's surviving
rights under the Lease. Capitalized terms used in this Letter Agreement and not
otherwise defined herein shall have the meanings given to them in the Lease.
The parties hereto acknowledge and agree that the following
rights expressly survived the termination of the Lease and, assuming Opus West
acquires the Property and constructs the Phase II Building thereon, will remain
in full force and effect pursuant to the terms and provisions of this Letter
Agreement:
1. EXPANSION RIGHT: Subject to the terms and conditions set forth
in this Section 1, the owner of the Phase II Building (the
"Phase II Owner") grants to JDA the right ("Offer Right") to
be offered by the Phase II Owner the opportunity to lease an
approximately 11,000 rentable square foot contiguous block of
space in the Phase II Building (the "Expansion Space"), which
Expansion Space will be provided to JDA, if at all, between
the sixtieth (60th) and seventy-second (72nd) calendar month
after the date of issuance of all governmental approvals of
substantial completion of the Phase II Building shell (the
"Offer Right Period"). The location of such space will be
determined by Landlord in Landlord's sole and absolute
discretion. At least twelve (12) months prior to the date that
the Phase II Owner will make the Expansion Space available to
JDA, the Phase II Owner will give JDA written notice of the
availability and location thereof and the date upon which the
Expansion Space can be delivered to JDA (the "Expansion Space
Delivery Date"). At least nine (9) months prior to the
Expansion Space Delivery Date, JDA shall notify the Phase II
Owner in writing whether JDA elects to exercise its right to
lease the Expansion Space on the terms of this Section 1. If
JDA elects not to lease the Expansion Space, the provisions of
this Section 1 shall be null, void and of no further force or
effect. Failure of JDA to timely respond in writing will be
deemed an election by JDA not to lease such
[OPUS LETTERHEAD]
Expansion Space from the Phase II Owner. Within thirty (30)
days of receipt of JDA's notice indicating JDA's decision to
lease the Expansion Space, the Phase II Owner shall provide
JDA a form of lease in regard to JDA's lease of the Expansion
Space. The lease of the Expansion Space shall commence upon
delivery of the Expansion Space to JDA, shall expire on
December 31, 2014 and Base Rent for the Expansion Space will
be at $17.00 per rentable square foot of the Expansion Space
for months one (1) through thirty (30) of such term and at
$18.50 per rentable square foot of the Expansion Space for
months thirty-one (31) through the expiration of such term.
The Expansion Space will be provided to JDA in "as is"
condition without representation or warranty by the Phase II
Owner and without any obligation on the Phase II Owner's part
to construct any tenant improvements therein or to pay any
brokerage commission relating thereto. With respect to tenant
improvements, if the Expansion Space is in "shell" condition
(e.g., the Expansion Space has not previously been improved
for occupancy by a tenant on the Expansion Space Delivery
Date), the Phase II Owner shall provide to JDA a tenant
improvement allowance relating to the Expansion Space at then
fair market rates for similar buildings, taking into account
the term of the lease of the Expansion Space, the condition of
the Expansion Space as of the date of commencement of JDA's
leasing thereof, and other relevant factors. If the Expansion
Space has previously been improved for occupancy by a tenant,
no tenant improvement allowance will be payable with respect
thereto.
2. FIRST RIGHT OF OFFER: Subject to the terms and conditions set
forth in this Section 2, the Phase II Owner grants to JDA the
first right ("First Right") to be offered by the Phase II
Owner to lease all or a portion of the leasable area in the
Phase II Building. If, at any time while this First Right is
in effect, the Phase II Owner should intend to lease any
portion of such space to a third party tenant (the "Available
Space"), then the Phase II Owner shall first offer to lease
the Available Space to JDA and provide to JDA the terms of the
Phase II Owner's offer to such third party (the "Third Party
Terms"). In the event the Phase II Owner offers to Lease the
Available Space to JDA pursuant to this Section 2, JDA shall
notify the Phase II Owner in writing within ten (10) business
days of its receipt of the Phase II Owner's notice whether JDA
desires to lease the Available Space from the Phase II Owner
on the Third Party Terms. If JDA notifies the Phase II Owner
in writing within such ten-business day period that JDA does
not desire to lease the Available Space, or if JDA does not
respond in writing to the Phase II Owner's notice within such
ten-business day period, then, in either of the above
instances, the Phase II Owner's obligations under this Section
2 shall automatically and forever terminate as to the
Available Space and the Phase II Owner shall thereafter be
entitled to lease the Available Space to the existing, or any
future third party tenant, free of any rights of JDA therein.
If JDA notifies the Phase II Owner in writing within such
ten-business day period that JDA desires to lease the
Available Space from the Phase II Owner on the Third Party
Terms, the parties shall thereafter execute a form of lease in
regard to JDA's lease of the Available Space (which lease form
shall provide for JDA's lease of the Available Space on the
Third Party Terms). Subject to the termination thereof as
described in the second preceding sentence, the First Right
described herein is intended by the parties to be valid
through the end of the sixtieth (60th) calendar month after
the date of issuance of all governmental approvals of
substantial completion of the Phase II Building shell and
shall be of no further force or effect thereafter. The purpose
of this Section 2 is to provide notice to JDA so that JDA may
be in a position to lease portions of the Phase II Building on
a competitive basis with others, and, notwithstanding anything
to the contrary contained in this Section 2, nothing in this
Section shall be deemed to be an option or right of first
refusal.
Page 2
[OPUS LETTERHEAD]
3. PHASE II BUILDING NAME/SIGNAGE: The Phase II Owner hereby
agrees that the Phase II Owner will not permit the following
tenants to place signage on the Phase II Building: Accenture,
XX Xxxxxxx Corporation, Armature Ltd., GERS, Inc., i2
Technologies, Information Resources, Inc., KhiMetrics, Inc.,
Manugistics Group, Inc., Marketmax, Inc., nsb Retail Systems
PLC, Oracle Corporation, Retek, Inc., SAP AG, SVI Holdings,
Inc., TCI Solutions, Inc. Notwithstanding the foregoing, in
the event that JDA has not leased space in the Phase II
Building on or before the expiration of the sixtieth (60th)
month after the date of issuance of all governmental approvals
of substantial completion of the Phase II Building shell, then
in that event the terms and provisions of this Section 3 shall
immediately thereafter terminate automatically and without
further action of the parties.
4. TRANSFER OF PHASE II OWNER'S INTEREST: If Opus West or any
subsequent Phase II Owner transfers (other than for collateral
security purposes) its ownership interest in the Phase II
Building, the transferor is automatically relieved of all
obligations on the part of the Phase II Owner accruing under
this Letter Agreement from and after the date of such
transfer, provided that the transferee agrees in writing to
assume such obligations. The Phase II Owner's covenants and
obligations in this Letter Agreement bind each successive
Phase II Owner only during and with respect to its respective
period of ownership. In the event that Opus West elects to
transfer its ownership interest in the Phase II Building to a
third party, Opus West agrees to disclose the terms and
provisions of this Letter Agreement to such third party in
connection with such transfer.
Assuming that the foregoing rights correctly describe your
understanding of those rights granted to JDA under the Lease that expressly
survived the termination thereof, please have the appropriate JDA representative
acknowledge its agreement with the terms and provisions herein by signing this
letter in the space provided below and returning a copy thereof to my attention
via facsimile at 000-000-0000.
Page 3
[OPUS LETTERHEAD]
If you have questions or comments concerning any of the
matters contained herein, do not hesitate to contact me.
Very truly yours,
OPUS WEST CORPORATION, a Minnesota
corporation
By /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
AGREED AND ACKNOWLEDGED this 30th day
of June, 2003:
JDA SOFTWARE GROUP, INC., a Delaware
corporation
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: EVP/CFO
cc: Xxxxxx X. Xxxx, Esq. (via interoffice delivery)
Mr. Xxxx Xxxxxxx (via interoffice delivery)
Xx. Xxxxxx Xxxxxxxx (via interoffice delivery)
Xx. Xxxxxxx X. Xxxx (via facsimile: 602-530-8500)
Page 4
