Exhibit 10.7
FIRST AMENDMENT TO LEASE
(EXPANSION)
THIS FIRST AMENDMENT TO LEASE ("First Amendment") is made as of the 10th
day of March, 2000, by and between Teachers Insurance and Annuity Association, a
New York corporation ("Landlord") and Aspect Systems, Inc., an Arizona
corporation ("Tenant")
R E C I T A L S:
A. Landlord and Tenant entered into a certain Lease (the "Lease") dated as
of November 4, 1999, whereby Landlord leased to Tenant certain premises (the
"Premises") known as Suites 1, 2, 3, 6, 9, & 10 of the certain building (the
"Building") known as East Valley Commerce Plaza and located at ▇▇▇/▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇. The Premises contain approximately 18,144
rentable square feet.
B. Tenant desires to add 5,120 rentable square feet, commonly known as
Suite 34 as shown on the attached Exhibit "A", to the Premises. Landlord and
Tenant desire to amend the Lease to add Suite 34 to the Premises upon the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein and in the Lease contained, it is hereby agreed as follows:
1. Defined Terms. Each capitalized term used as a defined term in this
First Amendment but not otherwise defined in this First Amendment shall have the
same meaning ascribed to such term in the Lease.
2. Additional Premises. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord that certain premises (the "Additional Premises")
consisting of approximately 5,120 square feet of rentable area as shown on
Exhibit "A" attached hereto and known as Suite 34. The Lease is hereby amended
to add the Additional Premises to the Premises as demised and defined in the
Lease upon the same terms and provisions specified in the Lease, except that:
(a) The Base Rent for the Additional Premises shall be as follows:
Period Monthly Base Rent
06/01/00 -12/30/00 $2,918.40 NNN*
0/1/01/0l -12/31/01 $3,020.80 NNN*
01/01/02 -12/31/02 $3,123.20 NNN*
01/01/03 -12131/03 $3,225.60 NNN*
01/01/04 -12/31/04 $3,328.00 NNN*
*plus applicable rental taxes
(b) The lease term for the Additional Premises shall commence on
June 1, 2000 and end on the last day of the Lease Term, December 31, 2004,
unless sooner terminated as provided in the Lease.
(c) The first installment of Base Rent for the Additional Premises
shall be due and payable on the commencement date of the lease term for the
Additional Premises, with subsequent
installments of Base Rent applicable to the Additional Premises due on the first
day of each month thereafter during the Lease Term.
(d) Base Rent for the Additional Premises shall be subject to
periodic adjustment pursuant to Article 4 of the Lease. The term "Tenant's
Proportionate Share", as defined and used in the Lease, shall mean eight and
fifty two hundredths percent (8.52%) for the Additional Premises.
(e) The Base Rent for the Premises, excluding the Additional
Premises, is not affected by this First Amendment.
3. Condition Of The Additional Premises; Improvement Allowance. No
promises by Landlord to alter, remodel, improve, repair, redecorate or clean the
Additional Premises, or any part thereof, have been made, except as expressly
set forth herein, and no representation respecting the condition of the
Additional Premises or the Building or with respect to the suitability or
fitness of either for any purpose, has been made to Tenant. Landlord shall
perform certain leasehold improvement work in the Expansion Space (the
"Expansion Space Improvements") in accordance with the Work Letter Agreement
(the "Work Letter Agreement") attached hereto as Exhibit "B" and made a part
hereof.
4. Broker. Tenant represents that except for ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Properties
Ltd. ("▇▇▇▇▇▇▇ ▇▇▇▇▇▇"), Tenant has not retained, contracted or otherwise dealt
with any real estate broker, salesperson or finder in connection with this First
Amendment, and no such person initiated or participated in the negotiation of
this First Amendment. Tenant shall indemnify and hold Landlord and ▇▇▇▇▇▇▇
▇▇▇▇▇▇ harmless from and against any and all liabilities and claims for
commissions and fees arising out of a breach of the foregoing representation.
5. Conflict. If any conflict exists between the terms or provisions of the
Lease and the terms or provisions of this First Amendment, the terms and
provisions of this First Amendment shall govern and control.
6. Effect Of Amendment. As amended by this First Amendment, the Lease
shall remain in full force and effect and is ratified by Landlord and Tenant.
This First Amendment contains the entire agreement of the parties with respect
to the Additional Premises, and all preliminary negotiations with respect
thereto are merged into and superseded by this First Amendment.
7. Exculpation Of Landlord And ▇▇▇▇▇▇▇ ▇▇▇▇▇▇. Notwithstanding anything to
the contrary contained in this First Amendment or in any exhibits, Riders or
addenda hereto attached (collectively the "Lease Documents"), it is expressly
understood and agreed by and between the parties hereto that: (a) the recourse
of Tenant or its successors or assigns against Landlord with respect to the
alleged breach by or on the part of Landlord of any representation, warranty,
covenant, undertaking or agreement contained in any of the Lease Documents or
otherwise arising out of Tenant's use of the Premises or the Building
(collectively, "Landlord's Lease Undertakings") shall extend only to Landlord's
interest in the real estate of which the Premises demised under the Lease
Documents are a part ("Landlord's Real Estate") and not to any other assets of
Landlord or its beneficiaries; and (b) except to the extent of Landlord's
interest in Landlord's Real Estate, no personal liability or personal
responsibility of any sort with respect to any of Landlord's Lease Undertakings
or any alleged breach thereof is assumed by, or shall at any time be asserted or
enforceable against, Landlord, its beneficiaries, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Capital
Management Corporation or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Properties Ltd., or against any of
their respective directors, officers, employees, agents, constituent partners,
beneficiaries, trustees or representatives.
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IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Lease
to be duly executed and delivered as of the day and year first written above.
TENANT:
Aspect Systems, Inc., an Arizona corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Its: President CEO
LANDLORD:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New York corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Its: Assistant Secretary
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EXHIBIT B
WORK LETTER AGREEMENT
This Work Letter Agreement ("Work Letter") is executed simultaneously with
that certain First Amendment (the "Lease") between Aspect Systems, Inc., as
"Tenant", and TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, a New York
corporation, as "Landlord", relating to demised premises ("Premises") at the
building commonly known as EAST VALLEY COMMERCE CENTER (the "Building"), which
Premises are more fully identified in the Lease. Capitalized terms used herein,
unless otherwise defined in this Work Letter, shall have the respective meanings
ascribed to them in the Lease.
For and in consideration of the agreement to lease the Premises and the
mutual covenants contained herein and in the Lease, Landlord and Tenant hereby
agree as follows:
1. Tenant's Initial Plans; the Work. Tenant desires Landlord to perform
certain leasehold improvement work in the Premises in substantial accordance
with the plan or plans (collectively, the "Initial Plan") to be prepared by
Aspect Systems, Inc. Not later than March 15, 1999, Tenant shall furnish to
Landlord such additional plans, drawings, specifications and finish details as
Landlord may reasonably request to enable Landlord's architects and engineers to
prepare mechanical, electrical and plumbing plans and to prepare the Working
Drawings, including a final telephone layout and special electrical connection
requirements, if any. All plans, drawings, specifications and other details
describing the Work which have been or are hereafter furnished by or on behalf
of Tenant shall be subject to Landlord's approval, which Landlord agrees shall
not be unreasonably withheld. Landlord shall not be deemed to have acted
unreasonably if it withholds its approval of any plans, specifications, drawings
or other details or of any Additional Work (as defined in Paragraph 7 below)
because, in Landlord's reasonable opinion, the work, as described in any such
item, or the Additional Work, as the case may be: (a) is likely to adversely
affect Building systems, the structure of the Building or the safety of the
Building and/or its occupants; (b) might impair Landlord's ability to furnish
services to Tenant or other tenants in the Building; (c) would increase the cost
of operating the Building; (d) would violate any governmental laws, rules or
ordinances (or interpretations thereof); (e) contains or uses hazardous or toxic
materials or substances; (f) would adversely affect the appearance of the
Building, (g) might adversely affect another tenant's premises; (h) is
prohibited by any ground lease affecting the Building or any mortgage, trust
deed or other instrument encumbering the Building, or (i) is likely to be
substantially delayed because of unavailability or shortage of labor or
materials necessary to perform such work or the difficulties or unusual nature
of such work. The foregoing reasons, however, shall not be the only reasons for
which Landlord may withhold its approval, whether or not such other reasons are
similar or dissimilar to the foregoing. Neither the approval by Landlord of the
Work or Initial Plan or any other plans, drawings, specifications or other items
associated with the Work nor Landlord's performance, supervision or monitoring
of the Work shall constitute any warranty by Landlord to Tenant of the adequacy
of the design for Tenant's intended use of the Premises, Landlord shall be
entitled to a payment of 5% of the cost associated with the completion of
Tenant's buildout, which cost shall include architectural and engineering and
similar fees and all costs associated with the construction of the space as
charged by the general contractor selected to perform the work This payment is
for the coordination and day to day supervision performed by Landlord's staff in
completing Tenant's buildout. This payment will be part of the Tenant Allowance
package.
2. Working Drawings. If necessary for the performance of the Work and not
included as part of the Initial Plan attached hereto, Landlord shall prepare or
cause to be prepared final working drawings and specifications for the Work (the
"Working Drawings") based on and consistent with the Initial Plan and the other
Plans, drawings, specifications, finish details and other information furnished
by Tenant to Landlord and approved by Landlord pursuant to Paragraph 1 above. So
long as the Working Drawings are consistent with the Initial Plan, Tenant shall
approve the Working Drawings within three (3) days after receipt of same from
Landlord by initialing and returning to Landlord each sheet of the
Working Drawings or by executing Landlord's approval form then in use, whichever
method of approval Landlord may designate.
3. Performance of the Work; Allowance. Except as hereinafter provided to
the contrary, Landlord shall cause the performance of the Work using (except as
may be stated or shown otherwise in the Working Drawings) building standard
materials, quantities and procedures then in use by Landlord ("Building
Standards"). Landlord shall pay for a portion of the "Cost of Work" (as defined
below) in an amount not to exceed $51,200.00 (such amount being $10.00 per
rentable square foot of the Premises which is to be improved, as described in
the Working Drawings) (the "Allowance"), and Tenant shall pay for the entire
Cost of the Work in excess of the Allowance. Tenant shall not be entitled to any
credit, abatement or payment from Landlord in the event that the amount of the
Allowance specified above exceeds the Cost of the Work. For purposes of this
Agreement, the term "Cost of the Work" shall mean and include any and all costs
and expenses of the Work, including, without limitation, the cost of the Working
Drawings and of all labor (including overtime) and materials constituting the
Work.
4. Payment. Prior to commencing the Work, Landlord shall submit to Tenant
a written statement of the total Cost of the Work (which shall include the
amount of any overtime projected as necessary to substantially complete the Work
by the Commencement Date specified in the Lease) as then known by Landlord, and
such statement shall indicate the amount, if any, by which the total Cost of the
Work exceeds the Allowance (the "Excess Costs"). Tenant agrees, within three (3)
days after submission to it of such statement, to execute and deliver to
Landlord, in the form then in use by Landlord, an authorization to proceed with
the Work, and Tenant shall also then pay to Landlord an amount equal to the
Excess Costs. No Work shall be commenced until Tenant has fully complied with
the preceding provisions of this Paragraph 4. In the event, and each time, that
any change order by Tenant, unknown field condition, delay caused by acts beyond
Landlord's control or other event or circumstance causes the Cost of the Work to
be increased after the time that Landlord delivers to Tenant the aforesaid
initial statement of the Cost of the Work, Landlord shall deliver to Tenant a
revised statement of the total Cost of the Work, indicating the revised
calculation of the Excess Costs, if any. Within three (3) days after submission
to Tenant of any such revised statement, Tenant shall pay to Landlord an amount
equal to the Excess Costs, as shown in such revised statement, less the amounts
previously paid by Tenant to Landlord on account of the Excess Costs, and
Landlord shall not be required to proceed further with the Work until Tenant has
paid such amount. Delays in the performance of the Work resulting from the
failure of Tenant to comply with the provisions of this Paragraph 4 shall be
deemed to be delays caused by Tenant.
5. Substantial Completion. Landlord shall cause the Work to be
"substantially completed" on or before the scheduled date of commencement of the
term of the Lease as specified in Section 1.05 of the Lease, subject to delays
caused by strikes, lockouts, boycotts or other labor problems, casualties,
discontinuance of any utility or other service required for performance of the
Work, unavailability or shortages of materials or other problems in obtaining
materials necessary for performance of the Work or any other matter beyond the
control of Landlord (or beyond the control of Landlord's contractors or
subcontractors performing the Work) and also subject to "Tenant Delays" (as
defined and described in Paragraph 6 of this Work Letter). The Work shall be
deemed to be "substantially completed" for all purposes under this Work Letter
and the Lease if and when Landlord's architect issues a written certificate to
Landlord and Tenant, certifying that the Work has been substantially completed
(i.e., completed except for "punchlist" items listed in such architect's
certificate) in substantial compliance with the Working Drawings, or when Tenant
first takes occupancy of the Premises, whichever first occurs. If the Work is
not deemed to be substantially completed on or before the scheduled date of the
commencement of the term of the Lease as specified in Section 1.05 of the Lease,
(a) Landlord agrees to use reasonable efforts to complete the Work as soon as
practicable thereafter, (b) the Lease shall remain in full force and effect, (c)
Landlord shall not be deemed to be in breach or default of the Lease or this
Work Letter as a result thereof and Landlord shall have no liability to Tenant
as a result of any delay in occupancy (whether for
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damages, abatement of Rent or otherwise), and (d) except in the event of Tenant
Delays, and notwithstanding anything contained in the Lease to the contrary, the
Commencement Date of the Lease Term as specified in Section 1.05 of the Lease
shall be extended to the date on which the Work is deemed to be substantially
completed and the Expiration Date of the Lease Term as specified in Section 1.06
of the Lease shall be extended by an equal number of days. At the request of
either Landlord or Tenant in the event of such extensions in the commencement
and expiration dates of the term of the Lease, Tenant and Landlord shall execute
and deliver an amendment to the Lease reflecting such extensions. Landlord
agrees to use reasonable diligence to complete all punch1ist work listed in the
aforesaid architect's certificate promptly after substantial completion.
6. Tenant Delays. There shall be no extension of the scheduled
commencement or expiration date of the term of the Lease (as otherwise
permissibly extended under Paragraph 5 above) if the Work has not been
substantially completed on said scheduled commencement date by reason of any
delay attributable to Tenant ("Tenant Delays"), including without limitation:
(i) the failure of Tenant to furnish all or any plans, drawings,
specifications, finish details or the other information required under Paragraph
1 above on or before the date stated in Paragraph 1;
(ii) the failure of Tenant to grant approval of the Working Drawings
within the time required under Paragraph 2 above;
(iii) the failure of Tenant to comply with the requirements of
Paragraph 4 above;
(iv) Tenant's requirements for special work or materials, finishes,
or installations other than the Building Standards or Tenant's requirements for
special construction staging or phasing;
(v) the performance of any Additional Work (as defined in Paragraph
7 below) requested by Tenant or the performance of any work in the Premises by
any person, firm or corporation employed by or on behalf of Tenant, or any
failure to complete or delay in completion of such work; or
(vi) any other act or omission of Tenant that causes a delay.
7. Additional Work. Upon Tenant's request and submission by Tenant (at
Tenant's sole cost and expense) of the necessary information and/or plans and
specifications for work other than the Work described in the Working Drawings
("Additional Work") and the approval by Landlord of such Additional Work, which
approval Landlord agrees shall not be unreasonably withheld, Landlord shall
perform such Additional Work, at Tenant's sole cost and expense, subject,
however, to the following provisions of this Paragraph 7. Prior to commencing
any Additional Work requested by Tenant, Landlord shall submit to Tenant a
written statement of the cost of such Additional Work, which cost shall include
a fee payable to Landlord in the amount of 15% of the total cost of such
Additional Work as compensation to Landlord for monitoring the Additional Work
and for administration, overhead and field supervision associated with the
Additional Work and an additional charge payable to Landlord in the amount of 5%
of the total Cost of the Additional Work as compensation for Landlord's general
conditions (such fee and additional charge being hereinafter referred to
collectively as "Landlord's Additional Compensation"), and, concurrently with
such statement of cost, Landlord shall also submit to Tenant a proposed tenant
extra order (the "TEO") for the Additional Work in the standard form then in use
by Landlord.
Tenant shall execute and deliver to Landlord such TEO and shall pay to
Landlord the entire cost of the Additional Work, including Landlord's Additional
Compensation (as reflected in Landlord's statement of such cost), within five
(5) days after Landlord's submission of such statement and TEO to Tenant. If
Tenant fails to execute or deliver such TEO or pay the entire cost of such
Additional Work
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within such 5-day period, then Landlord shall not be obligated to do any of the
Additional Work and may proceed to do only the Work, as specified in the Working
Drawings.
8. Tenant Access. Landlord, in Landlord's reasonable discretion and upon
request by Tenant, may grant to Tenant a license to have access to the Premises
prior to the date designated in the Lease for the commencement of the term of
the Lease to allow Tenant to do other work required by Tenant to make the
Premises ready for Tenant's use and occupancy (the "Tenant's Pre-Occupancy
Work"). It shall be a condition to the grant by Landlord and continued
effectiveness of such license that:
(a) Tenant shall give to Landlord a written request to have such
access to the Premises not less than five (5) days prior to the date on which
such access will commence, which written request shall contain or shall be
accompanied by each of the following items, all in form and substance reasonably
acceptable to Landlord: (i) a detailed description of and schedule for Tenant's
Pre-Occupancy Work; (ii) the names and addresses of all contractors,
subcontractors and material suppliers and all other representatives of Tenant
who or which will be entering the Premises on behalf of Tenant to perform
Tenant's Pre-Occupancy Work or will be supplying materials for such work, and
the approximate number of individuals, itemized by trade, who will be present in
the Premises; (iii) copies of all contracts, subcontracts and material purchase
orders pertaining to Tenant's Pre-Occupancy Work; (iv) copies of all plans and
specifications pertaining to Tenant's Pre-Occupancy Work; (v) copies of all
licenses and permits required in connection with the performance of Tenant's
Pre-Occupancy Work; (vi) certificates of insurance (in amounts satisfactory to
Landlord and with the parties identified in, or required by, the Lease named as
additional insureds) and instruments of indemnification against all claims,
costs, expenses, damages and liabilities which may arise in connection with
Tenant's Pre-Occupancy Work; and (vii) assurances of the ability of Tenant to
pay for all of Tenant's Pre-Occupancy Work and/or a letter of credit or other
security deemed appropriate by Landlord securing Tenant's lien-free completion
of Tenant's Pre-Occupancy Work.
(b) Such pre-term access by Tenant and its representatives shall be
subject to scheduling by Landlord.
(c) Tenant's employees, agents, contractors, workmen, mechanics,
suppliers and invitees shall work in harmony and not interfere with Landlord or
Landlord's agents in performing the Work and any Additional Work in the
Premises, Landlord's work in other premises and in common areas of the Building,
or the general operation of the Building. If at any time any such person
representing Tenant shall cause or threaten to cause such disharmony or
interference, including labor disharmony, and Tenant fails to immediately
institute and maintain such corrective actions as directed by Landlord, then
Landlord may withdraw such license upon twenty-four (24) hours' prior written
notice to Tenant.
(d) Any such entry into and occupancy of the Premises by Tenant or
any person or entity working for or on behalf of Tenant shall be deemed to be
subject to all of the terms, covenants, conditions and provisions of the Lease,
specifically including the provisions of Section IX thereof (regarding Tenant's
improvements and alterations to the Premises), and excluding only the covenant
to pay Rent. Landlord shall not be liable for any injury, loss or damage which
may occur to any of Tenant's Pre-Occupancy Work made in or about the Premises or
to property placed therein prior to the commencement of the term of the Lease,
the same being at Tenant's sole risk and liability. Tenant shall be liable to
Landlord for any damage to the Premises or to any portion of the Work or
Additional Work caused by Tenant or any of Tenant's employees, agents,
contractors, workmen or suppliers. In the event that the performance of Tenant's
Pre-Occupancy Work causes extra costs to Landlord or requires the use of
elevators during hours other than ________a.m. to _______p.m. on Monday through
Friday (excluding holidays) or of other Building services, Tenant shall
reimburse Landlord for such extra cost, and/or shall pay Landlord for such
elevator service or other building services at Landlord's standard rates then in
effect.
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9. Lease Provisions. The terms and provisions of the Lease, insofar as
they are applicable to this Work Letter are hereby incorporated herein by
reference. All amounts payable by Tenant to Landlord hereunder shall be deemed
to be additional Rent under the Lease and, upon any default in the payment of
same, Landlord shall have all of the rights and remedies provided for in the
Lease.
10. Miscellaneous.
(a) This Work Letter shall be governed by the laws of the state in
which the Premise are located.
(b) This Work Letter may not be amended except by a written
instrument signed by the party or parties to be bound thereby.
(c) Any person signing this Work Letter on behalf of Tenant warrants
and represents he/she has authority to sign and deliver this Work Letter and
bind Tenant.
(d) Notices under this Work Letter shall be given in the same manner
as under the Lease.
(e) The headings set forth herein are for convenience only.
(f) This Work Letter sets forth the entire agreement of Tenant and
Landlord regarding the Work.
(g) In the event that the final working drawings and specifications
are included as part of the Initial Plan attached hereto, or in the event
Landlord performs the Work without the necessity of preparing working drawings
and specifications, then whenever the term "Working Drawings" is used in this
Agreement, such term shall be deemed to refer to the Initial Plan and all
supplemental plans and specifications approved by Landlord.
11. Exculpation of Landlord and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇. Notwithstanding anything
to the contrary contained in this Work Letter, it is expressly understood and
agreed by and between the parties hereto that:
(a) The recourse of Tenant or its successors or assigns against
Landlord with respect to the alleged breach by or on the part of Landlord of any
representation, warranty, covenant, undertaking or agreement contained in this
Work Letter (collectively "Landlord's Work Letter Undertakings") shall extend
only to Landlord's interest in the real estate, of which the Premises demised
under the Lease are a part (hereinafter, "Landlord's Real Estate") and not to
any other assets of Landlord or its officers, directors or shareholders; and
(b) Except to the extent of Landlord's interest in Landlord's Real
Estate, no personal liability or personal responsibility of any sort with
respect to any of Landlord's Work Letter Undertakings or any alleged breach
thereof is assumed by, or shall at any time be asserted or enforceable against,
Landlord, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Properties Ltd. or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Properties of Arizona
Ltd., or against any of their respective directors, officers, employees, agents,
constituent partners, beneficiaries, trustees or representatives.
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IN WITNESS WHEREOF, this Work Letter Agreement is executed as of the
______ day of _______________,_______.
TENANT: LANDLORD:
Aspect Systems, Inc., an Arizona corporation TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA,
a New York corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------- ---------------------------
Its: President CEO Its: Assistant Secretary
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