FIRST AMENDMENT TO LEASE
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(HAVENGATE)
THIS FIRST AMENDMENT TO LEASE ("First Amendment") is made and entered into
as of the 22nd day of May, 2002, by and between ARDEN REALTY LIMITED
PARTNERSHIP, a Maryland limited partnership ("Landlord") and ALLCOM USA, INC., a
Nevada corporation ("Tenant").
R E C I T A L S :
- - - - - - - -
A. Landlord and Tenant entered into that certain Standard Office Lease
dated as of November 27, 2001 (the "Lease"), whereby Tenant leases from Landlord
certain office space located in that certain building located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Building").
B. By this First Amendment, Landlord and Tenant desire that Tenant
lease additional space within the Building, extend the Term and to otherwise
modify the Lease as provided herein.
C. Unless otherwise defined herein, capitalized terms as used herein
shall have the same meanings as given thereto in the Lease.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
A G R E E M E N T :
- - - - - - - - -
1. The Existing Premises. Landlord and Tenant hereby acknowledge
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that Tenant currently leases from Landlord that certain office space in the
Building containing 2,422 rentable square feet located on the second (2nd) floor
of the Building and known as Suite 250 (the "Existing Premises"), as outlined on
Exhibit "A" to the Lease.
2. Expansion Space. That certain space located on the second
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(2nd) floor of the Building consisting of 1,662 rentable square feet, as
outlined on the floor plan attached hereto as Exhibit "A" and made a part
hereof, may be referred to herein as the "Expansion Space," Effective as of the
date ("Expansion Commencement Date") which is the earlier to occur of (a) the
date Tenant commences business operations in the Expansion Space, or (b) the
date of "Substantial Completion" of the "Tenant Improvements" (as those terms
are defined in the Tenant Work Letter attached hereto as Exhibit "B") in the
Expansion Space, Tenant shall lease from Landlord the Expansion Space.
Accordingly, effective upon the Expansion Commencement Date, the Existing
Premises shall for all purposes relating to the Lease include the Expansion
Space, Landlord and Tenant hereby agree that such addition of the Expansion
Space to the Existing Premises shall, effective as of the Expansion Commencement
Date, increase the number of rentable square feet leased by Tenant in the
Building to a total of 4,084 rentable square feet. The Expansion Commencement
Date is anticipated to be July 1, 2002. If Landlord does not deliver possession
of the Expansion Space to Tenant on or before the anticipated Expansion
Commencement Date, Landlord shall not be subject to any liability for its
failure to do so, and such failure shall not affect the validity of this First
Amendment nor the obligations of Tenant under the Lease as modified by this
First Amendment. Effective as of the Expansion Commencement Date, all references
to the "Premises" shall mean and refer to the Existing Premises as expanded by
the Expansion Space.
3. Extended Lease Term. The Lease Termination Date shall be
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extended such that the Lease shall terminate on the date ("New Termination
Date") which is sixty (60) months after the Expansion Commencement Date;
provided however, that if the Expansion Commencement Date occurs on a date other
than the first (1st) day of a calendar month, the New Termination
Commencement Date occurs, The period from the Expansion Commencement Date
through the New Termination Date specified above shall be referred to herein as
the "EXTENDED TERM" Any contrary provision of the Lease notwithstanding, Tenant
shall have no unilateral right to further extend the Extended Term beyond the
New Termination Date, except as set forth in Section 9 below.
4. Monthly Basic Rental. During the Extended Term, Tenant shall pay in
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accordance with the provisions of this Section 4, Monthly Basic Rental as
follows:
FOR SUITE 230:
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MONTHLY BASIC RENTAL PER
PERIOD MONTHLY BASIC RENTAL RENTABLE SQUARE FOOT
--------------------------- --------------------- -------------------------
Expansion Commencement Date $ 2,576.10 $ 1.55
- June 30, 2003
July 1,2003- $ 2,659.20 $ 1.60
June 30,2004
July 1,2004- $ 2,742.30 $ 1.65
June 30, 2005
July 1,2005- $ 2,825.40 $ 1.70
June 30, 2006
July 1, 2006 - $ 2,908.50 $ 1.75
New Termination Date
FOR SUITE 250:
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MONTHLY BASIC RENTAL PER
PERIOD MONTHLY BASIC RENTAL RENTABLE SQUARE FOOT
--------------------------- --------------------- -------------------------
Expansion Commencement Date Per Lease Per Lease
-January 31, 2005
February 1,2005 - $ 3,996.30 $ 1.65
June 30, 2005
July 1,2005- $ 4,117.40 $ 1.70
June 30, 2006
July 1,2006- $ 4,238.50 $ 1.75
New Termination Date
5. Tenant's Proportionate Share. Effective as of the Expansion Commencement
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Date and continuing throughout the Extended Term (i) Tenant's Proportionate
Share of any increase in Operating Costs for the Premises shall be increased to
5.07%.
6. Tenant Improvements. Tenant Improvements in the Expansion Space shall be
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installed and constructed in accordance with the terms of the Tenant Work Letter
attached hereto as Exhibit "B".
7. Parking. Effective as of the Expansion Commencement Date and continuing
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throughout the Extended Term, Tenant shall rent from Landlord an additional six
(6) unreserved parking passes for use in the Building's parking facility.
Tenant's rental and use of such additional parking passes shall be in accordance
with, and subject to, all provisions of Section 23 of the Lease including,
without limitation, payment of the monthly parking rate specified therein, if
any.
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8. Security Deposit. Tenant has previously deposited with Landlord
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the sum of Three Thousand Seven Hundred Fifty-four and 10/100 Dollars
($3,754.10) as a Security Deposit under the Lease. Concurrently with Tenant's
execution of this First Amendment, Tenant shall deposit with Landlord an
additional Three Thousand Three Hundred Ninety-two and 90/100 Dollars
($3,392.90), for a total Security Deposit under the Lease, as amended hereby, of
Seven Thousand One Hundred Forty-seven and 00/100 Dollars ($7,147.00). Landlord
shall continue to hold such Security Deposit in accordance with the terms and
conditions of Section 4 of the Lease.
9. Option to Further Extend Term Landlord hereby grants Tenant one
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(1) option ("Option") to extend the Extended Terra for the Premises for a period
of five (5) years ("Option Term"), which Option shall be exercisable only by
written notice delivered by Tenant to Landlord as set forth below. The rights
contained in this Section 9 shall be personal to Tenant and may only be
exercised by Tenant (and not any assignee, sublessee or other transferee of the
Tenant's interest in the Lease).
(a) Option Rent. The rent payable by Tenant during the Option Term
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("Option Rent") shall be equal to the "Market Rent" (defined below). "Market
Rent" shall mean the applicable Basic Rental, including all escalations,
Operating Costs, additional rent and other charges at which tenants, as of the
commencement of the Option Term, are leasing non-sublease, non-encumbered, space
comparable in size, location and quality to the Premises in renewal transactions
for a term comparable to the Option Term which comparable space is located in
office buildings comparable to the Project in the Rancho Cucamonga, California
area, taking into consideration the value of the existing improvements in the
Premises to Tenant, as compared to the value of the existing improvements in
such comparable space, with such value to be based upon the age, quality and
layout of the improvements and the extent to which the same could be utilized by
Tenant with consideration given to the fact that the improvements existing in
the Premises are specifically suitable to Tenant.
(b) Exercise of Option. The Option shall be exercised by Tenant only in
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the following manner: (i) Tenant shall not be in default, and shall not have
been in default under this Lease more than once, on the delivery date of the
Interest Notice and Tenant's Acceptance; (ii) Tenant shall deliver written
notice (" Interest Notice") to Landlord not more than ten (10) months nor less
than nine (9) months prior to the expiration of the Extended Term, stating that
Tenant is interested in exercising the Option, (iii) within fifteen (15)
business days of Landlord's receipt of Tenant's written notice, Landlord shall
deliver notice ("Option Rent Notice") to Tenant setting forth the Option Rent;
and (iv) if Tenant desires to exercise such Option, Tenant shall provide
Landlord written notice within five (5) business days after receipt of the
Option Rent Notice ("Tenant's Acceptance"). Tenant's failure to deliver the
Interest Notice or Tenant's Acceptance on or before the dates specified above
shall be deemed to constitute Tenant's election not to exercise the Option. If
Tenant timely and properly exercises its Option, the Extended Term shall he
extended for the Option Term upon all of the terms and conditions set forth in
the Lease, as hereby amended, except that the rent for the Option Term shall be
as indicated in the Option Rent Notice.
10. Notice of Lease Term Dates. Landlord may deliver to Tenant a
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commencement letter in a form substantially similar to that attached hereto as
Exhibit "C" and made a part hereof at any time after the Expansion Commencement
Date. Tenant agrees to execute and return to Landlord said commencement letter
within five (5) days after Tenant's receipt thereof.
11. Brokers. Each party represents and warrants to the other that no
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broker, agent or finder negotiated or was instrumental in negotiating or
consummating this First Amendment, except for Tenant's broker, ▇▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, who shall be compensated with regard to the entire Extended Term for
the Expansion Space and with regard to only that portion of the Extended Term
which is an extension of Tenant's current Term with regard to the Existing
Premises, and Landlord's broker, ▇▇▇ & Associates, who shall be compensated for
the Extended Term, but with regard to the Expansion Space only. Each party
further agrees to defend, indemnify and hold harmless the other party from and
against any claim for commission or finder's fee by any entity who claims or
alleges that they were retained or engaged by the first party or at the request
of such party in connection with this First Amendment.
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12. Defaults. Tenant hereby represents and warrants to Landlord that,
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as of the date of this First Amendment, Tenant is in full compliance with all
terms, covenants and conditions of the Lease and that there are no breaches or
defaults under the Lease by Landlord or Tenant, and that Tenant knows of no
events or circumstances which, given the passage of time, would constitute a
default under the Lease by either Landlord or Tenant.
13. WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ANY RIGHT TO TRIAL
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BY JURY IN ANY ACTION SEEKING SPECIFIC PERFORMANCE OF ANY PROVISION OF THE LEASE
(AS AMENDED BY THIS FIRST AMENDMENT), FOR DAMAGES FOR ANY BREACH UNDER THE LEASE
(AS AMENDED BY THIS FIRST AMENDMENT), OR OTHERWISE FOR ENFORCEMENT OF ANY RIGHT
OR REMEDY UNDER THE LEASE (AS AMENDED BY THIS FIRST AMENDMENT).
14. No Further Modification. Except as set forth in this First
------------------------
Amendment, all of the terms and provisions of the Lease shall apply with respect
to the Expansion Space and shall remain unmodified and in full force and effect.
Effective as of the Expansion Commencement Date, all references to the "Lease"
shall refer to the Lease as amended by this First Amendment.
IN WITNESS WHEREOF, this First Amendment has been executed as of the day
and year first above written.
"LANDLORD":
ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership
By: ARDEN REALTY, INC.
a Maryland corporation
Its: Sole General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its President and COO
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Senior Vice President
Leasing and Operations
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"TENANT":
ALLCOM USA, INC.,
a Nevada corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Its: President
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By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Print Name: ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Its: Director
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[GRAPHIC OMITED]
EXHIBIT "A"
EXHIBIT "B"
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TENANT WORK LETTER
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This Tenant Work Letter shall set forth the terms and conditions relating
to the renovation of the tenant improvements in the Premises. This Tenant Work
Letter is essentially organized -chronologically and addresses the issues of the
renovation of the Premises, in sequence, as such issues will arise.
SECTION 1
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LANDLORD'S INITIAL CONSTRUCTION IN THE PREMISES
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Landlord has constructed, at its sole cost and expense, the base, shell and
core (i) of the Premises, and (ii) of the floor of the Project on which the
Expansion Space is located (collectively, the "BASE, SHELL AND CORE"). Tenant
has inspected and hereby approves the condition of the Base, Shell and Core, and
agrees that the Base, Shell and Core shall be delivered to Tenant in its current
"as-is" condition. The improvements to be initially installed in the Expansion
Space shall be designed and constructed pursuant to this Tenant Work Letter. Any
costs of initial design and construction of any improvements to the Expansion
Space shall be an "Improvement Allowance Item", as that term is defined in
Section 2.2 of this Tenant Work Letter.
SECTION 2
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IMPROVEMENTS
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2.1 Improvement Allowance. Tenant shall be entitled to a one-time
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improvement allowance (the "IMPROVEMENT ALLOWANCE") in the amount of Twenty-five
Thousand Six Hundred Nine and 25/100 Dollars ($25,609.25) for the costs relating
to the initial design and construction of Tenant's improvements which are
permanently affixed to the Expansion Space (the "IMPROVEMENTS"). In no event
shall Landlord be obligated to make disbursements pursuant to this Tenant Work
Letter in a total amount which exceeds the Improvement Allowance and in no event
shall Tenant be entitled to any credit for any unused portion of the Improvement
Allowance not used by Tenant by September 1, 2002.
2.2 Disbursement of the Improvement Allowance. Except as otherwise
------------------------------------------
set forth in this Tenant Work Letter, the Improvement Allowance shall be
disbursed by Landlord (each of which disbursements shall be made pursuant to
Landlord's disbursement process) for costs related to the construction of the
Improvements and for the following items and costs (collectively, the
"IMPROVEMENT ALLOWANCE ITEMS"): (i) payment of the fees of the "Architect" and
the "Engineers," as those terms are defined in Section 3.1 of this Tenant Work
Letter, and payment of the fees incurred by, and the cost of documents and
materials supplied by, Landlord and Landlord's consultants in connection with
the preparation and review of the "Construction Drawings," as that term is
defined in Section 3.1 of this Tenant Work Letter; (ii) the cost of permits;
(iii) the cost of any changes in the Base, Shell and Core required by the
Construction Drawings; (iv) the cost of any changes to the Construction Drawings
or Improvements required by applicable building codes (the "Code"); and (v) the
"Landlord Supervision Fee", as that term is defined in Section 4.3.2 of this
Tenant Work Letter. However, in no event shall more than Three and 00/100
Dollars ($3.00) per usable square foot of the Tenant Improvement Allowance be
used for the items described in (i) and (ii) above; any additional amount
incurred as a result of (i) and (ii) above shall be deemed to constitute an
Over-Allowance Amount.
2.3 Standard Improvement Package. Landlord has established
------------------------------
specifications (the "SPECIFICATIONS") for the Project standard components to be
used in the construction of the Improvements in the Expansion Space
(collectively, the "STANDARD IMPROVEMENT PACKAGE"), which Specifications are
available upon request. The quality of Improvements shall be equal to or of
greater quality than the quality of the Specifications, provided that Landlord
may, at Landlord's option, require the Improvements to comply with certain
Specifications.
-1-
SECTION 3
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CONSTRUCTION DRAWINGS
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3.1 Selection of Architect/Construction Drawings. Tenant shall retain
---------------------------------------------
an architect/space planner designated by Landlord (the "ARCHITECT") to prepare
the "Construction Drawings," as that term is defined in this Section 3.1. Tenant
shall also retain the engineering consultants designated by Landlord (the
"ENGINEERS") to prepare all plans and engineering working drawings relating to
the structural, mechanical, electrical, plumbing, HVAC and lifesafety work of
the Tenant Improvements. The plans and drawings to be prepared by Architect and
the Engineers hereunder shall be known collectively as the "CONSTRUCTION
DRAWINGS." An Construction Drawings shall comply with the drawing format and
specifications as reasonably determined by Landlord, and shall be subject to
Landlord's reasonable approval. Tenant and Architect shall verify, in the field,
the dimensions and conditions as shown on the relevant portions of the base
building plans, and Tenant and Architect shall be solely responsible for the
same, and Landlord shall have no responsibility in connection therewith.
Landlord's review of the Construction Drawings as set forth in this Section 3,
shall be for its sole purpose and shall not imply Landlord's review of the same,
or obligate Landlord to review the same, for quality, design, Code compliance or
other like matters. Accordingly, notwithstanding that any Construction Drawings
are reviewed by Landlord or its space planner, architect, engineers and
consultants, and notwithstanding any advice or assistance which may be rendered
to Tenant by Landlord or Landlord's space planner, architect, engineers, and
consultants, Landlord shall have no liability whatsoever in connection therewith
and shall not be responsible for any omissions or errors contained in the
Construction Drawings.
3.2 Final Space Plan. On or before the date set forth in Schedule 1,
-----------------
attached hereto, Tenant and the Architect shall prepare the final space plan for
Improvements in the Expansion Space (collectively, the "FINAL SPACE HAN"), which
Final Space Plan shall include a layout and designation of all offices, rooms
and other partitioning, their intended use, and equipment to be contained
therein, and shall deliver the Final Space Plan to Landlord for Landlord's
approval,
3.3 Final Working. Drawings. On or before the date set forth in
------------------------
Schedule 1, Tenant, the Architect and the Engineers shall complete the
architectural and engineering drawings for the Expansion Space, and the final
architectural working drawings in a form which is complete to allow
subcontractors to bid on the work and to obtain all applicable permits
(collectively, the "FINAL WORKING DRAWINGS") and shall submit the same to
Landlord for Landlord's approval.
3.4 Permits. The Final Working Drawings shall be approved by
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Landlord (the "APPROVED WORKING DRAWINGS") prior to the commencement of the
construction of the Improvements. Tenant shall cause the Architect to
immediately submit the Approved Working Drawings to the appropriate municipal
authorities for all applicable building permits necessary to allow "Contractor,"
as that term is defined in Section 4.1, below, to commence and fully complete
the construction of the Improvements (the "PERMITS"). No changes, modifications
or alterations in the Approved Working Drawings may be made without the prior
written consent of Landlord, which consent shall not be unreasonably withheld.
3.5 Time Deadlines. Tenant shall use its best, good faith efforts and
---------------
all due diligence to cooperate with the Architect, the Engineers, and Landlord
to complete all phases of the Construction Drawings and the permitting process
and to receive the permits, and with Contractor for approval of the "Cost
Proposal," as that term is defined in Section 4.2 of this Tenant Work Letter, as
soon as possible after the execution of the Lease, and, in that regard, shall
meet with Landlord on a scheduled basis to be determined by Landlord, to discuss
Tenant's progress in connection with the same. The applicable dates for approval
of items, plans and drawings as described in this Section 3, Section 4 below,
and in this Tenant Work Letter are set forth and further elaborated upon in
Schedule 1 (the "TIME DEADLINES"), attached hereto. Tenant agrees to comply with
the Time Deadlines.
-2-
SECTION 4
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CONSTRUCTION OF THE IMPROVEMENTS
--------------------------------
4.1 Contractor. The contractor which shall construct the Improvements
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shall be a contractor designated by Landlord. The contractor selected may be
referred to herein as the "CONTRACTOR".
4.2 Cost Proposal. After the Approved Working Drawings are signed by
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Landlord and Tenant, Landlord shall provide Tenant with a cost proposal in
accordance with the Approved Working Drawings, which cost proposal shall
include, as nearly as possible, the cost of all Improvement Allowance Items to
be incurred by Tenant in connection with the construction of the Improvements
(the "COST PROPOSAL"), Tenant shall approve (or reduce the scope of the
requested Improvements) and deliver the Cost Proposal to Landlord within three
(3) business days of the receipt of the same, and upon receipt of the same by
Landlord, Landlord shall be released by Tenant to purchase the items set forth
in the Cost Proposal and to commence the construction relating to such items.
The date by which Tenant must approve and deliver the Cost Proposal to Landlord
shall be known hereafter as the "COST PROPOSAL DELIVERY DATE".
4.3 Construction of Improvements by Contractor under the Supervision of
-------------------------------------------------------------------
Landlord.
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4.3.1 Over-Allowance Amount. On the Cost Proposal Delivery Date,
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Tenant shall deliver to Landlord an amount (the "OVER-ALLOWANCE AMOUNT") equal
to the difference between (i) the amount of the Cost Proposal and (ii) the
amount of the Improvement Allowance (less any portion thereof already disbursed
by Landlord, or in the process of being disbursed by Landlord, on or before the
Cost Proposal Delivery Date), The Over-Allowance Amount shall be disbursed by
Landlord prior to the disbursement of any then remaining portion of the
Improvement Allowance, and such disbursement shall be pursuant to the same
procedure as the Improvement Allowance. In the event that, after the Cost
Proposal Delivery Date, any revisions, changes, or substitutions shall be made
to the Construction Drawings or the Improvements, any additional costs which
arise in connection with such revisions, changes or substitutions or any other
additional costs shall be paid by Tenant to Landlord immediately upon Landlord's
request as an addition to the Over-Allowance Amount.
4.3.2 Landlord's Retention of Contractor. Landlord shall
-------------------------------------
independently retain Contractor, on behalf of Tenant, to construct the
Improvements in accordance with the Approved Working Drawings and the Cost
Proposal and Landlord shall supervise the construction by Contractor, and Tenant
shall pay a construction supervision and management fee (the "LANDLORD
SUPERVISION FEE") to Landlord in an amount equal to the product of (i) five
percent (5%) and (ii) an amount equal to the Improvement Allowance plus the
Over-Allowance Amount (as such Over-Allowance Amount may increase pursuant to
the terms of this Tenant Work Letter).
SECTION 5
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COMPLETION OF THE IMPROVEMENTS
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5.1 Substantial Completion. For purposes of this Lease, "SUBSTANTIAL
----------------------
COMPLETION" of the Improvements in the Expansion Space shall occur upon the
completion of construction of the Improvements in the Expansion Space pursuant
to the Approved Working Drawings, with the exception of any punch list items and
any tenant fixtures, work-stations, built-in furniture, or equipment to be
installed by Tenant.
5.2 Delay of the Substantial Completion of the Expansion Space. Except
----------------------------------------------------------
as provided in this Section 5, the Commencement Date and Tenant's obligation to
pay rent for the Expansion Space shall occur as set forth in the Lease. However,
if there shall be a delay or there are delays in the Substantial Completion of
the Improvements in the Expansion Space as a result of the following
(collectively, "TENANT DELAYS"):
5.2.1 Tenant's failure to comply with the Time Deadlines;
5.2.2 Tenant's failure to timely approve any matter requiring
Tenant's approval;
-3-
5.2.3 A breach by Tenant of the terms of this Tenant Work Letter
or the Lease;
5.2.4 Changes in any of the Construction Drawings after
disapproval of the same by Landlord or because the same do not comply with Code
or other applicable laws;
5.2.5 Tenant's request for changes in the Approved Working
Drawings;
5.2.6 Tenant's requirement for materials, components, finishes or
improvements which are not available in a commercially reasonable time given the
anticipated date of Substantial Completion of the Improvements in the Expansion
Space, or which are different from, or not included in, the Standard Improvement
Package;
5.2.7 Changes to the Base, Shell and Core required by the Approved
Working Drawings; or
5.2.8 Any other acts or omissions of Tenant, or its agents, or
employees;
then, notwithstanding anything to the contrary set forth in the Lease or this
Tenant Work Letter and regardless of the actual date of the Substantial
Completion of Improvements in the Expansion Space, the date of Substantial
Completion thereof shall be deemed to be the date that Substantial Completion
would have occurred if no Tenant Delay or Delays, as set forth above, had
occurred.
SECTION 6
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MISCELLANEOUS
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6.1 Tenant's Representative. Tenant shall designate a single
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individual as its sole representative with respect to the matters set forth in
this Tenant Work Letter, who, until further notice to Landlord, shall have full
authority and responsibility to act on behalf of the Tenant as required in this
Tenant Work Letter.
6.2 Landlord's Representative. Prior to commencement of construction
--------------------------
of Improvements, Landlord shall designate a representative with respect to the
matters set forth in this Tenant Work Letter, who, until further notice to
Tenant, shall have full authority and responsibility to act on behalf of the
Landlord as required in this Tenant Work Letter.
6.3 Time of the Essence in This Tenant Work Letter. Unless otherwise
indicated, all references herein to a "number of days" shall mean and refer to
calendar days.
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SCHEDULE 1
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TIME DEADLINES
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Dates Actions to be Performed
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A. June 12, 2002 Tenant to deliver Final Space Plan to
Landlord
B. June 12, 2002 Tenant to deliver Final Working
Drawings to Landlord.
C. Three (3) business days after Tenant to approve Cost Proposal and
the receipt of the Cost deliver Cost Proposal to Landlord.
Proposal by Tenant
SCHEDULE 1
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EXHIBIT"C"
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NOTICE OF LEASE TERM PATES
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TO: DATE: , 200
---------------------------- --------- -
----------------------------
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Attention:
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RE: ____Amendment dated_____, 200 ___ between ARDEN REALTY LIMITED PARTNERSHIP,
a Maryland limited partnership ("Landlord"), and _____________________,
a_____________________("Tenant"), concerning Suite_______(the "Expansion
Space") and Suite_________-(the "Existing Premises"), located at
__________________________________, California.
Dear Mr. [or Ms.]__________:
In accordance with the _____________Amendment, Landlord wishes to advise
and/or confirm the following:
1. That the Tenant is in possession of the Expansion Space and the
Existing Premises and Tenant acknowledges that under the provisions of the _____
Amendment, the Extended Term commenced as of________, 200__________ and shall
expire on____________.
2. That in accordance with the___________Amendment, Monthly Basic Rent
for the Extended Term commenced to accrue on____________, 200__________.
3. The exact number of rentable square feet within the entire Premises
(including both the Expansion Space and the Existing Premises) is________ square
feet.
4. Tenant's Percentage Share, as adjusted based upon the number of
rentable square feet within the entire Premises (including both the Expansion
Space and the Existing Premises), is_______ %.
AGREED AND ACCEPTED:
TENANT:
-------------------------------
a
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By:
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Print Name:
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Its:
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By:
----------------------------
Print Name:
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Its:
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EXHIBIT "C"
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EXHIBIT "B"
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RULES AND REGULATIONS
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1. No sign, advertisement or notice shall be displayed, printed or affixed
on or to the Premises or to the outside or inside of the Project or so as to be
visible from outside the Premises or Project without Landlord's prior written
consent. Landlord shall have the right to remove any non-approved sign,
advertisement or notice, without notice to and at the expense of Tenant, and
Landlord shall not be liable in damages for such removal. All approved signs or
lettering on doors and walls shall be printed, painted, affixed or inscribed at
the expense of Tenant by Landlord or by a person selected by Landlord and in a
manner and style acceptable to Landlord.
2. Tenant shall not obtain for use on the Premises ice, waxing, cleaning,
interior glass polishing, rubbish removal, towel or other similar services, or
accept barbering or bootblackening, or coffee cart services, milk, soft drinks
or other like services on the Premises, except from persons authorized by
Landlord and at the hours and under regulations fixed by Landlord. No vending
machines or machines of any description shall be installed, maintained or
operated upon the Premises without Landlord's prior written consent.
3. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by Tenant or used for any purpose other than
for ingress and egress from Tenant's Premises. Under no circumstances is trash
to be stored in the corridors. Notice must be given to Landlord for any large
deliveries. Furniture, freight and other large or heavy articles, and all other
deliveries may be brought into the Project only at times and in the manner
designated by Landlord, and always at Tenant's sole responsibility and risk.
Landlord may impose reasonable charges for use of freight elevators after or
before normal business hours. All damage done to the Project by moving or
maintaining such furniture, freight or articles shall be repaired by Landlord at
Tenant's expense. Tenant shall not take or permit to be taken in or out of
entrances or passenger elevators of the Project, any item normally taken, or
which Landlord otherwise reasonably requires to be taken, in or out through
service doors or on freight elevators. Tenant shall move all supplies, furniture
and equipment as soon as received directly to the Premises, and shall move all
waste that is at any time being taken from the Premises directly to the areas
designated for disposal.
4. Toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein.
5. Tenant shall not overload the floor of the Premises or ▇▇▇▇, drive
nails, screw or drill into the partitions, ceilings or floor or in any way
deface the Premises. Tenant shall not place typed, handwritten or computer
generated signs in the corridors or any other common areas. Should there be a
need for signage additional to the Project standard tenant placard, a written
request shall be made to Landlord to obtain approval prior to any installation.
All costs for said signage shall be Tenant's responsibility.
6. In no event shall Tenant place a load upon any floor of the Premises
or portion of any such flooring exceeding the floor load per square foot of area
for which such floor is designed to carry and which is allowed by law, or any
machinery or equipment which shall cause excessive vibration to the Premises or
noticeable vibration to any other part of the Project. Prior to bringing any
heavy safes, vaults, large computers or similarly heavy equipment into the
Project, Tenant shall inform Landlord in writing of the dimensions and weights
thereof and shall obtain Landlord's consent thereto. Such consent shall not
constitute a representation or warranty by Landlord that the safe, vault or
other equipment complies, with regard to distribution of weight and/or
vibration, with the provisions of this Rule 6 nor relieve Tenant from
responsibility for the consequences of such noncompliance, and any such safe,
vault or other equipment which Landlord determines to constitute a danger of
damage to the Project or a nuisance to other tenants, either alone or in
combination with other heavy and/or vibrating objects and equipment, shall be
promptly removed by Tenant, at Tenant's cost, upon Landlord's written notice of
such determination and demand for removal thereof.
EXHIBIT "B"
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7. Tenant shall not use or keep in the Premises or Project any kerosene,
gasoline or inflammable, explosive or combustible fluid or material, or use any
method of heating or air- conditioning other than that supplied by Landlord.
8. Tenant shall not lay linoleum, tile, carpet or other similar floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved by -Landlord.
9. Tenant shall not install or use any blinds, shades, awnings or screens
in connection with any window or door of the Premises and shall not use any
drape or window covering facing any exterior glass surface other than the
standard drapes, blinds or other window covering established by Landlord,
10. Tenant shall cooperate with Landlord in obtaining maximum effectiveness
of the cooling system by closing window coverings when the sun's rays fall
directly on windows of the Premises. Tenant shall not obstruct, alter, or in any
way impair the efficient operation of Landlord's heating, ventilating and
air-conditioning system. Tenant shall not tamper with or change the setting of
any thermostats or control valves.
11. The Premises shall not be used for manufacturing or for the storage of
merchandise except as such storage may be incidental to the permitted use of the
Premises. Tenant shall not, without Landlord's prior written consent, occupy or
permit any portion of the Premises to be occupied or used for the manufacture or
sale of liquor or tobacco in any form, or a ▇▇▇▇▇▇ or manicure shop, or as an
employment bureau. The Premises shall not be used for lodging or sleeping or for
any improper, objectionable or immoral purpose. No auction shall be conducted on
the Premises.
12. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises, or disturb or interfere with occupants of Project or neighboring
buildings or premises or those having business with it by the use of any musical
instrument, radio, phonographs or unusual noise, or in any other way.
13. No bicycles, vehicles or animals of any kind shall be brought into
or kept in or about the Premises, and no cooking shall be done or permitted by
any tenant in the Premises, except that the preparation of coffee, tea, hot
chocolate and similar items for tenants, their employees and visitors shall be
permitted. No tenant shall cause or permit any unusual or objectionable odors to
be produced in or permeate from or throughout the Premises. The foregoing
notwithstanding, Tenant shall have the right to use a microwave and to heat
microwavable items typically heated in an office. No hot plates, toasters,
toaster ovens or similar open element cooking apparatus shall be permitted in
the Premises.
14. The sashes, sash doors, skylights, windows and doors that reflect or
admit light and air into the halls, passageways or other public places in the
Project shall not be covered or obstructed by any tenant, nor shall any bottles,
parcels or other articles be placed on the window ▇▇▇▇▇.
15. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in existing
locks or the mechanisms thereof unless Landlord is first notified thereof, gives
written approval, and is furnished a key therefor. Each tenant must, upon the
termination of his tenancy, give to Landlord ail keys and key cards of stores,
offices, or toilets or toilet rooms, either furnished to, or otherwise procured
by, such tenant, and in the event of the loss of any keys so furnished, such
tenant shall pay Landlord the cost of replacing the same or of changing the lock
or locks opened by such lost key if Landlord shall deem it necessary to make
such change. If more than two keys for one lock are desired, Landlord will
provide them upon payment therefor by Tenant. Tenant shall not key or re-key any
locks. All locks shall be keyed by Landlord's locksmith only.
16. Landlord shall have the right to prohibit any advertising by any tenant
which, in Landlord's opinion, tends to impair the reputation of the Project or
its desirability as an office building and upon written notice from Landlord any
tenant shall refrain from and discontinue such advertising.
EXHIBIT "B"
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17. Landlord reserves the right to control access to the Project by all
persons after reasonable hours of generally recognized business days and at all
hours on Sundays and legal holidays and may at all times control access to the
equipment areas of the Project outside the Premises, Each tenant shall be
responsible for all persons for whom it requests after hours access and shall be
liable to Landlord for all acts of such persons. Landlord shall have the right
from time to time to establish reasonable rules and charges pertaining to
freight elevator usage, including the allocation and reservation of such usage
for tenants' initial move-in to their premises, and final departure therefrom,
Landlord may also establish from time to time reasonable rules and charges for
accessing the equipment areas of the Project, including the risers, rooftops and
telephone closets.
18. Any person employed by any tenant to do janitorial work shall, while in
the Project and outside of the Premises, be subject to and under the control and
direction of the Office of the Project or its designated representative such as
security personnel (but not as an agent or servant of Landlord, and the Tenant
shall be responsible for all acts of such persons).
19. All doors opening on to public corridors shall be kept closed, except
when being used for ingress and egress. Tenant shall cooperate and comply with
any reasonable safety or security programs, including fire drills and air raid
drills, and the appointment of "fire wardens" developed by Landlord for the
Project, or required by law. Before leaving the Premises unattended, Tenant
shall close and securely lock all doors or other means of entry to the Premises
and shut off all lights and water faucets in the Premises.
20. The requirements of tenants will be attended to only upon application
to the Office of the Project.
21. Canvassing, soliciting and peddling in the Project are prohibited and
each tenant shall cooperate to prevent the same.
22. All office equipment of any electrical or mechanical nature shall be
placed by tenants in the Premises in settings approved by Landlord, to absorb or
prevent any vibration, noise or annoyance.
23. No air-conditioning unit or other similar apparatus shall be installed
or used by any tenant without the prior written consent of Landlord. Tenant
shall pay the cost of all electricity used for air-conditioning in the Premises
if such electrical consumption exceeds normal office requirements, regardless of
whether additional apparatus is installed pursuant to the preceding sentence.
24. There shall not be used in any space, or in the public halls of the
Project, either by any tenant or others, any hand trucks except those equipped
with rubber tires and side guards.
25. All electrical ceiling fixtures hung in offices or spaces along the
perimeter of the Project must be fluorescent and/or of a quality, type, design
and bulb color approved by Landlord. Tenant shall not permit the consumption in
the Premises of more than 2/2 ▇▇▇▇▇ per net usable square foot in the Premises
in respect of office lighting nor shall Tenant permit the consumption in the
Premises of more than 1 1/2 ▇▇▇▇▇ per net usable square foot of space in the
Premises in respect of the power outlets therein, at any one time. In the event
that such limits are exceeded, Landlord shall have the right to require Tenant
to remove lighting fixtures and equipment and/or to charge Tenant for the cost
of the additional electricity consumed.
26. Parking.
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(a) Project parking facility hours shall be 7:00 a.m. to 7:00
p.m., Monday through Friday, and closed on weekends, state and federal holidays
excepted, as such hours may be revised from time to time by Landlord.
(b) Automobiles must be parked entirely within the stall lines on
the floor.
(c) All directional signs and arrows must be observed.
(d) The speed limit shall be 5 miles per hour.
(e) Parking is prohibited in areas not striped for parking.
(f) Parking cards or any other device or form of identification
supplied by Landlord (or its operator) shall remain the property of Landlord (or
its operator). Such parking identification device must be displayed as requested
and may not be mutilated in any manner.
EXHIBIT "B"
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The serial number of the parking identification device may not be obliterated.
Devices are not transferable or assignable and any device in the possession of
an unauthorized holder will be void. There will be a replacement charge to the
Tenant or person designated by Tenant of $25.00 for loss of any parking card.
There shall be a security deposit of $25.00 due at issuance for each card key
issued to Tenant.
(g) The monthly rate for parking is payable one (1) month in
advance and must be paid by the third business day of each month. Failure to do
so will automatically cancel parking privileges and a charge at the prevailing
daily rate will be due. No deductions or allowances from the monthly rate will
be made for days ▇▇▇▇▇▇ does not use the parking facilities.
(h) Tenant may validate visitor parking by such method or methods
as the Landlord may approve, at the validation rate from time to time generally
applicable to visitor parking.
(i) Landlord (and its operator) may refuse to permit any person
who violates the within rules to park in the Project parking facility, and any
violation of the rules shall subject the automobile to removal from the Project
parking facility at the ▇▇▇▇▇▇'▇ expense. In either of said events, Landlord (or
its operator) shall refund a prorata portion of the current monthly parking rate
and the sticker or any other form of identification supplied by Landlord (or its
operator) will be returned to Landlord (or its operator).
(j) Project parking facility managers or attendants are not
authorized to make or allow any exceptions to these Rules and Regulations.
(k) All responsibility for any loss or damage to automobiles or
any personal property therein is assumed by the ▇▇▇▇▇▇.
(l) Loss or theft of parking identification devices from
automobiles must be reported to the Project parking facility manager
immediately, and a lost or stolen report must be filed by the ▇▇▇▇▇▇ at that
time.
(m) The parking facilities are for the sole purpose of parking one
automobile per space. Washing, waxing, cleaning or servicing of any vehicles by
the ▇▇▇▇▇▇ or his agents is prohibited.
(n) Landlord (and its operator) reserves the right to refuse the
issuance of monthly stickers or other parking identification devices to any
Tenant and/or its employees who refuse to comply with the above Rules and
Regulations and all City, State or Federal ordinances, laws or agreements.
(o) Tenant agrees to acquaint all employees with these Rules and
Regulations.
(p) No vehicle shall be stored in the Project parking facility for
a period of more than one (1) week.
27. The Project is a non-smoking Project. Smoking or carrying lighted
cigars or cigarettes in the Premises or the Project, including the elevators in
the Project, is prohibited.
EXHIBIT "B"
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EXHIBIT "C"
-----------
NOTICE OF LEASE TERM DATES
AND TENANT'S PROPORTIONATE SHARE
--------------------------------
TO: DATE:
------------------------------- -----------------------
-------------------------------
-------------------------------
RE: Lease dated November ___, 2001, between ARDEN REALTY LIMITED PARTNERSHIP, a
Maryland limited partnership ("Landlord"), and ALLCOM USA, INC., a Nevada
corporation ("Tenant"), concerning ▇▇▇▇▇ ▇▇▇, located at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
Ladies and Gentlemen:
In accordance with the Lease, Landlord wishes to advise and/or confirm the
following:
1. That the Premises have been accepted herewith by the Tenant as
being substantially complete in accordance with the Lease and that there is no
deficiency in construction,
2. That the Tenant has taken possession of the Premises and
acknowledges that under the provisions of the Lease the Term of said Lease shall
commence as of _______for a term of __________ ending on_____________.
3. That in accordance with the Lease, Basic Rental commenced to accrue
on_______________________.
4. If the Commencement Date of the Lease is other than the first day
of the month, the first billing will contain a prorata adjustment. Each billing
thereafter shall be for the full amount of the monthly installment as provided
for in said Lease.
5. Rent is due and payable in advance on the first day of each and
every month during the Term of said Lease. Your rent checks should be made
payable to___________________________ at_____________________________________.
6. The exact number of rentable square feet within the Premises is
square feet.
7. Tenant's Proportionate Share, as adjusted based upon the exact
number of rentable square feet within the Premises is_________%,
AGREED AND ACCEPTED:
TENANT:
ALLCOM USA, INC.,
a Nevada corporation
By:
---------------------------
Its:
-----------------------
EXHIBIT "C"
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EXHIBIT "D"
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TENANTWORK LETTER
-----------------
[ALLCOM USA, INC.]
This Tenant Work Letter shall set forth the terms and conditions relating
to the renovation of the tenant improvements in the Premises. This Tenant Work
Letter is essentially organized chronologically and addresses the issues of the
construction of the Premises, in sequence, as such issues ▇▇▇▇ arise.
SECTION 1
---------
CONSTRUCTION DRAWINGS FOR THE PREMISES
--------------------------------------
Landlord shall construct the improvements in the Premises (the
"IMPROVEMENTS") pursuant to that certain Tenant proposal to Landlord dated
November 5, 2001 (collectively, the "PLANS"). Unless specifically noted to the
contrary on the Plans, the Improvements shall be constructed using
Project-standard quantities, specifications and materials as determined by
Landlord. Based upon the Plans, Landlord shall cause the Architect to prepare
detailed plans and specifications for the Improvements ("WORKING DRAWINGS").
Landlord shall then forward the Working Drawings to Tenant for Tenant's
approval. Tenant shall approve or reasonably disapprove any draft of the Working
Drawings within three (3) business days after Tenant's receipt thereof;
provided, however, that (i) Tenant shall not be entitled to disapprove any
portion, component or aspect of the Working Drawings which are consistent with
the Plans unless Tenant agrees to pay for the additional cost resulting from
such change in the Plans as part of the Over-Allowance Amount pursuant to
Section 2 below, and (ii) any disapproval of the Working Drawings by Tenant
shall be accompanied by a detailed written explanation of the reasons for
Tenant's disapproval. Failure of Tenant to reasonably disapprove any draft of
the Working Drawings within said three (3) business day period shall be deemed
to constitute Tenant's approval thereof. The Working Drawings, as approved by
Landlord and Tenant, may be referred to herein as the "APPROVED WORKING
DRAWINGS." Tenant shall make no changes or modifications to the Plans or the
Approved Working Drawings without the prior written consent of Landlord, which
consent may be withheld in Landlord's sole discretion if such change or
modification would directly or indirectly delay the "Substantial Completion," as
that term is defined in Section 5.1 of this Tenant Work Letter, of the
Improvements in the Premises or increase the cost of designing or constructing
the Improvements.
SECTION 2
---------
OVER-ALLOWANCE AMOUNT
---------------------
In the event any revisions, changes, or substitutions are made with
Tenant's consent to the Plans or the Approved Working Drawings or the
Improvements, any additional costs which arise in connection with such
revisions, changes or substitutions shall be considered to be an "OVER-ALLOWANCE
AMOUNT." The Over-Allowance Amount shall be paid by Tenant to Landlord, as
Additional Rent, within ten (10) days after Tenant's receipt of invoice
therefor. The Over-Allowance Amount shall be disbursed by Landlord prior to the
disbursement of any portion of Landlord's contribution to the construction of
the Improvements.
SECTION 3
---------
RETENTION OF CONTRACTOR
-----------------------
WARRANTIES AND GUARANTIES
-------------------------
Landlord hereby assigns to Tenant all warranties and guaranties by the
contractor who constructs the Improvements (the "CONTRACTOR") relating to the
Improvements, and Tenant hereby waives all claims against Landlord relating to,
or arising out of the construction of, the Improvements. The Contractor shall be
designated and retained by Landlord to construct the Improvements.
EXHIBIT "D"
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SECTION 4
---------
TENANT'S COVENANTS
------------------
Tenant shall, at no cost to Tenant, cooperate with Landlord and the space
planner or architect retained by Landlord ("ARCHITECT") to cause a Notice of
Completion to be recorded in the office of the Recorder of the County of San
Diego in accordance with Section 3093 of the Civil Code of the State of
California or any successor statute upon completion of construction of the
improvements.
SECTION 5
---------
COMPLETION OF THE IMPROVEMENTS
------------------------------
5.1 Substantial Completion. For purposes of this Lease, "SUBSTANTIAL
-----------------------
COMPLETION" of the Improvements in the Premises shall occur upon the completion
of construction of the Improvements in the Premises pursuant to the Approved
Working Drawings, with the exception of any punch list items and any tenant
fixtures, work-stations, built-in furniture, or equipment to be installed by
Tenant.
5.2 Delay of the Substantial Completion of the Premises. Except as
------------------------------------------------------
provided in this Section 5.2, the Commencement Date shall occur as set forth in
the Lease. If there shall be a delay or there are delays in the Substantial
Completion of the Improvements in the Premises as a result of the following
(collectively, "TENANT DELAYS"):
5.2.1 Tenant's failure to timely approve any matter requiring
Tenant's approval;
5.2.2 A breach by Tenant of the terms of this Tenant Work Letter
or the Lease;
5.2.3 Tenant's request for changes in the Plans, Working Drawings
or Approved Working Drawings;
5.2.4 Changes in any of the Plans, Working Drawings or Approved
Working Drawings because the same do not comply with applicable laws;
5.2.5 Tenant's requirement for materials, components, finishes or
improvements which are not available in a commercially reasonable time given the
anticipated date of Substantial Completion of the Improvements in the Premises,
or which are different from, or not included in, Landlord's standard improvement
package items for the Project;
5.2.6 Changes to the base, shell and core work of the Project
required by the Approved Working Drawings or any changes thereto; or
5.2.7 Any other acts or omissions of Tenant, or its agents, or
employees;
then, notwithstanding anything to the contrary set forth in the Lease or this
Tenant Work Letter and regardless of the actual date of the Substantial
Completion of the Improvements in the Premises, the date of Substantial
Completion thereof shall be deemed to be the date (hat Substantial Completion
would have occurred if no Tenant Delay or Delays, as set forth above, had
occurred.]
EXHIBIT "D"
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SECTION 6
---------
MISCELLANEOUS
-------------
6.1 Tenant's Representative. Tenant has designated ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
as its sole representative with respect to the matters set forth in this Tenant
Work Letter, who, until further notice to Landlord, shall have full authority
and responsibility to act on behalf of the Tenant as required in this Tenant
Work Letter.
6.2 Landlord's Representative. Prior to commencement of construction
-------------------------
of the Improvements, Landlord shall designate a representative with respect to
the matters set forth in this Tenant Work Letter, who, until further notice to
Tenant, shall have full authority and responsibility to act on behalf of the
Landlord as required in this Tenant Work Letter.
6.3 Time of the. Essence in This Tenant Work Letter. Unless otherwise
-----------------------------------------------
indicated, all references herein to a "number of days" shall mean and refer to
calendar days.
EXHIBIT "D"
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