EXHIBIT 10.30
FIRST ADDENDUM TO LEASE
BY AND BETWEEN
THE ▇▇▇▇▇▇ AND ▇▇▇ ▇▇▇▇ REVOCABLE TRUST, LANDLORD
AND
FAIR, ▇▇▇▇▇ AND COMPANY, INCORPORATED, TENANT
DATED JULY 10, 1993
1. TENANT IMPROVEMENTS
A. Working Drawings and Specifications ("Bid Package"): Tenant shall
authorize ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Associates or any other architect or
architectural firm of Tenant's choice ("Architect") to prepare a
space plan, construction drawings and design specifications for the
Premises. Tenant may direct Architect to utilize the services of
consultants ("Consultants") to provide engineered drawings and design
specifications for the mechanical, electrical and plumbing systems in
the Premises, including, but not limited to any air conditioning
system, duct work, heating and electric facilities. (All such
architectural and engineering drawings and specifications are herein
referred to collectively as the "Bid Package"). In putting together
the Bid Package, Architect and Consultants shall exert their best
efforts to reuse all existing improvements in the Premises where
possible and in conformance with Tenant's requirements in the
Premises. Tenant shall not be required to reuse existing light
fixtures in the Premises, but rather shall specify its own light
fixtures. Landlord shall provide the Architect and Consultants with
the base building capacity for (1) electrical power, (2) HVAC and (3)
floor loading (live and dead load capacities and design criteria for
the Premises). The Bid Package shall be submitted to Tenant for its
review and written approval which shall be evidenced by Tenant's
signing the Bid Package. The Bid Package shall also be submitted to
Landlord for Landlord's approval which shall also be evidenced by
Landlord's signing the Bid Package. Landlord's approval shall not be
unreasonably withheld. It is the understanding of the parties that
Tenant intends to provide its employees with high quality office
space which meets the current needs of the workforce and enhances the
work performance of the employees and the company, while remaining
flexible enough to accommodate the growth and changing needs of the
Tenant. In other words, the Tenant may not always be looking for the
most economical solution or method of construction, but rather one
which provides Tenant with the highest ability to perform its work
while maintaining flexibility for future needs.
All architectural design, engineering, and consulting fees shall be
included in the Tenant Improvement Allowance. See Addendum 1[1.C.
Tenant may require that certain subcontractors be used by the
Contractor in bidding and performing the work, including, but not
limited to, WBE Electrical, WBE Telecom and Peerless Lighting.
The Bid Package shall include the Construction Contract which shall
be provided by Tenant. Landlord shall have the right to review and
approve the Construction Contract and make any necessary changes with
respect to preserving and protecting Landlord's rights, remedies and
property.
The Bid Package shall be completed and accepted by both Landlord and
Tenant no later than July 1, 1994. Each party shall have at least ten
(10) working days to review the Bid Package. Tenant will prepare a
schedule for delivery and review of the Bid Package by January 1,
1994.
B. Contractor: The Contractor who shall perform the tenant improvement
work in the Premises shall be selected from two bidders. Landlord
shall select one Contractor and Tenant shall select one Contractor.
No later than June 1, 1994, Landlord and Tenant shall provide each
other with the name and address of their respective Contractor.
Landlord shall have fourteen (14) days to evaluate the Contractor
selected by Tenant. Landlord's criteria for evaluation of Tenant's
Contractor shall include, but not be limited to, reputation and
quality of workmanship, record of completing previous jobs on
schedule and within budget, relationship with the City of San ▇▇▇▇▇▇
Building and Planning Departments, cooperativeness in dealing with
Landlord and its employees, financial strength and billing procedure.
Tenant shall have fourteen (14) days to evaluate Landlord's
Contractor. Tenant's criteria for evaluation of Landlord's Contractor
shall include, but not be limited to, cost effectiveness, quality of
workmanship, creativity, record of completing work on schedule and
within budget, and an understanding of Tenant's current and future
requirements and a good working relationship with Tenant and Tenant's
employees. Landlord and Tenant shall each use best efforts in
ensuring that their evaluation process of each other's Contractors is
fair and reasonable. A copy of the Bid Package may be given to each
Contractor and may be used in evaluating the Contractor. Landlord and
Tenant shall have the right to reject each other's Contractor based
on any of the above criteria or any other relevant criteria. If a
Contractor is rejected, the reasons for the rejection shall be stated
in a letter to Landlord or Tenant. If a Contractor is rejected by
Landlord or Tenant, another Contractor shall be selected and its name
submitted in writing within five (S) days. Each Contractor shall be
evaluated using the same criteria stated above. Neither Tenant nor
Landlord may reject more than three Contractors submitted by the
other.
Landlord may submit its own name as a Contractor.
As soon as Landlord approves Tenant's choice of a Contractor
("Tenant's Contractor") and as soon as Tenant approves Landlord's
choice of a Contractor ("Landlord's Contractor") Tenant's Contractor
and Landlord's Contractor shall be requested in writing to submit a
bid on the Bid Package. Ten (10) working days after receipt of the
request for bid and the complete Bid Package, both Contractors shall
submit a sealed fixed price contract bid (on such contract form as
Landlord, Tenant and Architect shall designate) to construct the
tenant improvements specified in the Bid Package. Landlord and Tenant
shall jointly open and review the bids. Landlord and Tenant (after
adjustments for any inconsistent assumptions to reflect an
"apples-to-apples" comparison) shall select the lowest price bidder
as the Contractor ("Contractor"). The Contractor shall enter into a
construction contract with Tenant consistent with the terms of the
Bid Package and its bid to construct the tenant improvements. That
contract must state that Tenant shall hold Landlord harmless from any
and all liability for the work to be performed under the terms of
that construction contract.
If Landlord's Contractor is not selected as the successful bidder,
Tenant shall pay Landlord or its representative a reasonable owner's
representation fee to compensate Landlord for its time and effort in
inspecting and overseeing the construction of the tenant improvement
work and assuring itself of good quality materials and workmanship,
that the work contained in the Request for Disbursement (see Addendum
1[1.D.) is complete, and that there is no interference with the
day-to-day operations of the Building as a result of Tenant's
construction. The parties agree that the maximum fee chargeable by
Landlord shall be $50.00 per hour for up to five (5) hours per week.
This fee shall be deducted from the Tenant Improvement Allowance (see
Addendum to Lease 111.C.
C. Tenant Improvement Allowance: Landlord shall contribute Seven Hundred
Sixty-two Thousand Two Hundred Twenty Dollars ($762,220.00) ($23.00 x
33,140 usable SF) toward the construction of the tenant improvements
for Tenant's Premises ("Tenant Improvement Allowance"). The Tenant
Improvement Allowance shall include all architectural, engineering
and consultant fees, and all other fees charged in conjunction with
preparation of the Bid Package. All costs exceeding the Tenant
Improvement Allowance shall be borne by Tenant.
D. Disbursement of Tenant Improvement Allowance: Once a month, on or
before the 10th day of the month, Tenant shall present to Landlord a
Request for Disbursement ("Request for Disbursement") requesting
payment by Landlord of any costs associated with the design,
engineering or construction of the tenant improvements. The Request
for Disbursement shall include the following information:
1) A certificate from Tenant confirming that all of the work
contained in the Request for Disbursement has been completed
in accordance with the applicable contracts.
2) A Certificate from Tenant's Architect confirming that all of
the work contained in the Request for Disbursement has been
completed in accordance with the applicable contracts and
certifying that materials have arrived on the job.
3) Unconditional mechanics lien releases and copies of invoices
from the Contractor, subcontractors, suppliers and materialmen
marked "Paid."
4) And such other reasonable documentation as may be requested by
Landlord not later than the 25th day of the previous month.
Payment shall not be made on any Request for Disbursement until all
of the information and documentation above is complete.
Payment shall be made only for those materials which have been
installed or which have been delivered to the Premises. Landlord
shall have five (5) calendar days from the date of receipt of the
Request for Disbursement to review same and request clarification. If
Landlord is in Agreement with the Request for Disbursement, payment
shall be made to Tenant within ten (10) days of receipt of the
Request for Disbursement. If any items are in dispute, Landlord shall
not make payment on those items until the dispute is resolved, but
Landlord shall make payment to Tenant of all amounts not in dispute
within ten (10) days of receipt of the Request for Disbursement.
Landlord shall not unreasonably withhold its approval of any Request
for Disbursement or on any specific request for payment made therein.
A final disbursement of Twenty-five Thousand Dollars ($25,000.00)
shall be held until all punchlist items in Tenant's Premises are
complete, and the time for the filing of any mechanics liens claimed
or which might be filed on account of any work performed by Tenant,
Contractor, subcontractors, suppliers or materialmen has passed. Any
damage to Landlord's property will be repaired to Landlord's
satisfaction. Once Landlord has disbursed the entire amount of the
Tenant Improvement Allowance (See Addendum 1[1.C.) to Tenant, except
the final disbursement of $25,000.00, any and all costs associated
with the design, engineering or construction of Tenant's Premises
shall be paid directly by Tenant.
E. Change Orders: Tenant may, but only by written instructions or
drawings issued to Landlord and Contractor ("Change Order Request"),
make changes to the work specified in the Bid Package, including
without limitation, requiring additional work, directing the omission
of work previously ordered or changing the quantity or type of any
materials, equipment or services. Promptly upon receipt of a Change
Order Request, Contractor will provide Tenant with a statement in
detail setting forth the cost of said change (including a breakdown
of costs attributable to labor and materials, construction equipment
exclusively necessary for the change, and preparation or amendment to
shop drawings resulting from said change and any time delays
anticipated to result from said change). Tenant will have two (2)
days after receipt of such statement in which to confirm the Change
Order Request and authorize the work to be performed or to withdraw
such request. Change Orders will be signed by Landlord and Tenant in
advance of any work being performed on a Change Order.
F. Substantial Completion: For purposes of this Lease, "Substantial
Completion" shall mean that construction of the tenant improvements
has been completed in accordance with the Bid Package, except for
minor finishing details of construction, decoration, mechanical
adjustment, minor replacement of defective or damaged materials, and
other items of a type commonly found on architectural punchlists, all
of which do not materially interfere with the occupancy and use of
the Premises by Tenant or with Tenant's ability to complete the
improvements to the Premises to be made by Tenant. Within three (3)
days of Substantial Completion Tenant's, Architect shall notify
Landlord in writing that the Premises are Substantially Complete. If
Tenant is conducting business in any part of the Premises the space
shall be automatically deemed Substantially Complete.
Within ten (10) calendar days after Substantial Completion of the
tenant improvements, Tenant, accompanied by Landlord or Landlord's
representative, shall make an inspection of the Premises and prepare
a punchlist of items needing additional work by the Contractor.
Contractor shall complete all punchlist items reasonably identified
by Tenant or Landlord within thirty (30) calendar days after the
inspection or as soon as practicable thereafter. If there is any
dispute as to whether Contractor has substantially completed the
work, a good faith decision of Tenant's Architect shall be final and
binding on the parties.
G. Standard of Construction: Contractor shall complete all work in
accordance with the Bid Package approved by Landlord and Tenant and
shall make no alterations, additions, or reinforcements to the
structure of the building except as specifically approved by Landlord
in the Bid package, or in writing thereafter. Tenant, or Contractor,
at its expense, shall procure all building and other permits required
for completion of Tenant's work. Tenant agrees that all work done by
Tenant, its Contractor and subcontractors shall be performed in full
compliance with all laws, rules, orders, permits, ordinances,
directions, regulations and requirements of all governmental
agencies, offices, and departments having jurisdiction, including
without limitation applicable provisions pertaining to use of
hazardous or toxic materials and the Americans with Disabilities
Ac't, and in full compliance with the rules, orders, directions,
regulations and requirements of the Board of Fire Underwriters or any
other organization performing a similar function.
Landlord shall have the right to enter the Premises at any time to
post any Notice of Non-Responsibility or other notice on the Premises
during Tenant's construction. Contractor and all contractors and
subcontractors retained by Tenant or Contractor shall be bondable and
bonded, licensed contractors, possessing good labor relations,
adequate financials, and with a record of performing quality
workmanship.
During the course of construction, Tenant shall maintain builder's
risk insurance in form and content reasonably satisfactory to
Landlord. Tenant's insurance shall name Landlord as an additional
insured and shall provide that it may not be canceled or amended
without twenty (20) days prior written notice to Landlord. At least
seven (7) calendar days prior to commencement of construction, Tenant
shall provide Landlord with a certificate of such insurance and
evidence of any required bonds in form satisfactory to Landlord.
Contractor shall complete the tenant improvement work with diligence
and in such a manner as not to interfere with the use or enjoyment of
other portions of the Project or common areas by Landlord or other
tenants. Contractor shall provide for all temporary power, water and
other utility facilities as required in connection with the
construction of Tenant's work. Contractor shall provide its own
dumpster for collection and disposition of construction debris, which
shall be located at a location approved by Landlord, and all
construction debris from construction shall be disposed of in
Contractor's dumpster and not in trash facilities for the Project.
Contractor's construction materials, tools, equipment and debris
shall be stored only within the Premises, or in areas designated for
that purpose by Landlord. Work space exterior to the Premises shall
be available only with the written approval of Landlord. Tenant's
construction work shall be subject to the inspection and supervision
of Landlord and Landlord's representatives.
Tenant and Contractor shall indemnify and hold harmless Landlord for
any and all claims arising from Tenant's work. Tenant shall pay for
all damage to the Building, the Project, or appurtenant areas or
equipment, as well as all damage to tenants or occupants thereof or
their licensees, or invitees, including, but not limited to, losses
incurred as the result of power outages caused by Tenant's or
Contractor's work in the Building. Any such damages may be deducted
from the Tenant Improvement Allowance.
H. Liability: The parties acknowledge that Landlord is not an architect
or engineer and that the tenant improvement work will be designed by
independent Architects, Engineers and Consultants. Accordingly,
Landlord does not guarantee or warrant that any part of the Bid
Package will be free from errors or omissions, and Landlord shall
have no liability therefor.
Tenant shall be solely responsible for the adequacy in all respects
of the Bid Package, including without limitation compliance with all
governmental requirements, compatibility with the building shell, and
any special requirements of Tenant's proposed equipment or machines
with respect to ambient temperatures, electrical use or current, or
water availability. Landlord shall warrant only that the information
provided regarding the base building (referred to in Addendum to
Lease 111.A.) is true and correct to the best of its knowledge.
Tenant acknowledges that in connection with obtaining Landlord's
approval of the Bid Package, Tenant may provide Landlord with certain
information regarding its specific needs relating to the Premises in
developing plans and specifications for Tenant's work and that Tenant
may provide some of its own equipment for installation in the
Premises. Tenant further acknowledges that Landlord will make no
independent review of any such information and that Landlord does not
warrant, either expressly or impliedly, the adequacy of the Bid
Package for Tenant's requirements or Tenant's equipment for Tenant's
intended purpose.
I. Ownership of Tenant Improvements: Upon termination of the Lease, all
of the tenant improvements shall remain in the Premises unless
Landlord shall consent in writing to the removal thereof by Tenant.
However, all Tenant's trade fixtures, equipment, furniture and
personal property shall remain the property of Tenant.
J. Life Safety: With respect to Life Safety System, Landlord believes to
the best of its knowledge that Regency Center meets all current code
requirements including handicap access compliance. If any code
requirements are not met with respect to the Building's Life Safety
System all costs to accomplish changes necessary to the Building
shall be covered by Landlord. All code compliance costs with respect
to Tenant's Premises shall be covered by the Tenant Improvement
Allowance or by Tenant.
K. Use of Current Fixtures in Space: Tenant shall have the right to
reuse the fixtures currently in the Premises including but not
limited to all cafeteria built-ins, the moveable partitions
(retractable wall) in the training rooms and fire extinguishers and
cases. The food trolley located in the cafeteria and the equipment
purchased or leased by the previous Tenant including, but not limited
to, the cafeteria tables and chairs, ice dispenser, training room
tables, chairs, white boards, projection screen, reception desk,
counter and hutch are not part of the fixtures in the Premises.
3. POSSESSION
A. Possession of the Premises ("Possession") shall be delivered to
Tenant no later than October 1, 1994 for the purpose of constructing
the tenant improvements. If possession of the space cannot be
delivered by Landlord by that date, for any reason whatsoever, this
Lease shall not be void or voidable, nor shall Landlord be liable to
Tenant for any loss or damage resulting therefrom, nor shall the
expiration date of the term of Lease be in any way extended, but in
that event, of Commencement Date (as defined in Addendum 14.A.) shall
be extended by the exact number of days of Landlord's delay in
delivering possession. Landlord shall inform Tenant of the date of
Possession in writing at least thirty (30) days prior to Possession.
B. If Landlord shall not have delivered Possession of the Premises
within ninety (90) days after the Commencement Date (as defined in
Addendum 1[4.A.), Tenant may, at Tenant's option, by notice in
writing to Landlord within ten (10) days thereafter, cancel this
Lease, in which event the parties shall be discharged from all
obligations hereunder; provided, however, that if such written notice
by Tenant is not received by Landlord within said ten (10) day
period, Tenant's right to cancel this lease hereunder shall terminate
and be of no further force or effect.
4. COMMENCEMENT
A. If Possession is delivered on October 1, 1994 the Commencement Date
("Commencement") shall be defined as December 1, 1994 or five (5)
days after Substantial Completion of the tenant improvement work (as
defined in Addendum 111.E.) whichever is earlier. If Possession is
delivered prior to October 1, 1994, the Commencement Date shall be
sixty (60) calendar days after the date of Possession or five (5)
days after Substantial Completion of the tenant improvement work,
whichever is earlier.
Landlord shall notify Tenant in writing of the actual Commencement
Date no later than thirty (30) days after Substantial Completion. In
the event Substantial Completion is delayed by Tenant Caused Delays
(as defined in Addendum 1[4.C.) the same number of days shall be
deducted from total number of days of the build-out and that date
shall be the Commencement.
5. FREE RENT
Landlord shall allow Tenant and Contractor to occupy and perform the tenant
improvement work in the Premises without payment of rent after Possession
(as defined in Addendum 1[3) for a period of two (2) months. Landlord shall
allow Tenant to occupy one-half (1/2) of the Premises (approximately 17,630
rentable square feet) for six (6) months after the Commencement Date
without payment of rent. Tenant's first month's rent paid upon execution of
this Lease shall cover the rent on the remaining one-half (1t2) of the
Premises for the first two (2) months after the Commencement Date.
6. OPERATING EXPENSE ADJUSTMENTS (Continued from Article 7 of the Lease.)
A. During the initial term of this Lease, management costs for the
building shall not exceed three percent (3%) of the gross rental
income for the building.
B. Landlord shall keep full, accurate, and separate books of account and
records covering all Direct Expenses, which books of accounts and
records shall accurately reflect the total Direct Expenses, and
Landlord's ▇▇▇▇▇▇▇▇ to Tenant for Operating Expense Adjustments.
C. Tenant shall have the right to protest any charge to Tenant by
Landlord for Operating Expense Adjustments, provided that said
protest is made within thirty (30) days after receipt of Landlord's
notice of such charge. In the event that Tenant shall protest, Tenant
shall be entitled to audit Landlord's books of account, records, and
other pertinent data regarding Direct Expenses. The audit shall be
limited to the determination of direct Expenses and charges to Tenant
for Operating Expense Adjustments and shall be conducted during
normal business hours. If the audit shows that there has been an
overpayment by Tenant, the overpayment shall be immediately due and
repayable by Landlord to Tenant.
7. OPTION TO EXTEND
A. Landlord grants to Tenant the option to extend the term of this Lease
for two 3-year periods commencing when the prior term expires upon
each and all of the following terms and conditions:
(i) Tenant gives to Landlord and Landlord receives notice of the
exercise of the option to extend this Lease for said
additional term no later than twelve (12) months prior to the
time that the option period would commence if the option were
exercised, time being of the essence. If said notification of
the exercise of said option is not so given and received, this
option shall automatically expire;
(ii) At the time said written notification of exercise of option is
given and received, Tenant shall not be in default under any
of the material obligations of this Lease to be performed by
Tenant and this Lease shall not have previously terminated nor
terminated prior to the commencement of the option term;
(iii) All of the terms and conditions of this Lease except where
specifically modified by this option shall apply;
(iv) The monthly rent for each month of the option period shall be
calculated as follows:
The rent payable by Tenant during the first option period shall be
the Fair Market Rental Value of the Premises (as defined below) at
the commencement date of the option period. There shall be an annual
C.P.I. increase not to exceed four percent (4%) in each subsequent
year of the first option period. The rent in the first year of the
second option period shall be the rent in the last year of the first
option period to which will be added a C.P.I. increase not to exceed
four percent (4%). There shall be an annual C.P.I. increase not to
exceed four percent (4%) in each subsequent year of the second option
period. All of the C.P.I. increases during the option periods shall
be calculated on the basis of the formula provided in the Lease 1
5.B. If Landlord and Tenant cannot agree on the Fair Market Rental
Value of the Premises for the extension periods within forty-five
(45) days after the Tenant has notified Landlord of its exercise of
the option, Landlord and Tenant shall each select, within forty-five
(45) days of such notification, an appraiser who must be a qualified
M.A.I. appraiser to determine said Fair Market Rental Value. If one
party fails to so designate an appraiser within the time required,
the determination of Fair Market Rental Value of the one appraiser
who has been designated by the other party hereto within the time
required shall be binding upon both parties. The appraisers shall
submit their determinations of Fair Market Rental Value to both
parties within thirty (30) days after their selection. If the
difference between the two determinations is ten percent (10%) or
less of the higher appraisal, then the average between the two
determinations shall be the Fair Market Rental Value of the Premises.
If said difference is greater than ten percent (10%), then the two
appraisers shall within twenty (20) days of the date that the later
submittal is submitted to the parties designate a third appraiser who
must also be a qualified M.A.I. appraiser. The sole responsibility of
the third appraiser will be to determine which of the determinations
made by the first appraisers is most accurate. The third appraiser
shall have no right to propose a middle ground or any modification of
either of the determinations made by the first two appraisers. The
third appraiser's choice shall be submitted to the parties within
thirty (30) days after his or her selection. Such determination shall
bind both of the parties and shall establish the Fair Market Rental
Value of the Premises. Each party shall pay for their own appraiser
and shall pay an equal share of the fees and expenses of the third
appraiser.
Fair Market Rental Value for purpose of this Lease shall mean the
then prevailing rent for premises comparable in size, quality, and
orientation to the demised Premises, located in buildings comparable
in size to, and in the general vicinity of, the building which the
demised Premises are located, leased on terms comparable to the terms
contained in this Lease.
8. RIGHT OF FIRST OPPORTUNITY TO LEASE ADDITIONAL PREMISES AT 100 ▇▇▇▇▇ RANCH
ROAD, SAN ▇▇▇▇▇▇
At any time during the term hereof, or any options to extend which Tenant
has exercised, provided that Tenant is not in default as defined herein,
Tenant shall have a right of First Opportunity to Lease for all office
space that becomes available for lease at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
based on the terms and conditions as outlined below.
Landlord and Tenant acknowledge that there are existing tenants at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, which tenants have options to renew or wish to renew
their respective leases, and that these existing options and requests to
renew would take precedent over the Right of First Opportunity to Lease
described herein.
Landlord and Tenant further acknowledge that this Right of First
Opportunity to Lease shall apply only to premises, from which existing
tenants vacate or which is currently vacant.
Landlord shall notify Tenant in writing of the availability of additional
office premises at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ within thirty (30) days
of Landlord receiving notice from an existing Tenant at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ of that Tenant's intent to vacate their premises. Landlord's notice to
Tenant shall include the size of premises, the projected date at which the
premises may be available, and a floor plan indicating the current
configuration of the premises.
Tenant shall have ten (10) days after receipt of notice from Landlord to
notify Landlord of Tenant's intent to lease the premises which was the
subject of the notice. In the event Landlord does not receive notice from
Tenant of Tenant's intent to lease said available space, Landlord shall
have the right to lease said space to any other Tenant which Landlord
chooses, and Tenant's Right of First Opportunity to lease that specific
premises shall be deemed waived.
In the event Tenant notifies Landlord of its intent to lease said premises,
Landlord and Tenant shall proceed as soon as is reasonably possible to
execute a lease agreement for the specific premises that became available.
Terms and conditions of the Lease shall be based on the same terms and
conditions of the lease(s) on the other space Tenant occupies in the
Building at the time the lease is executed. Landlord and Tenant shall make
a good faith effort to execute a Lease for the specific available space
within thirty (30) days after Tenant has notified Landlord of its intent to
lease said space.
This Right of First Opportunity to Lease shall in no way limit the Landlord
from executing leases with new tenants for terms of any length, with
options to renew for any length, for those spaces for which Tenant has not
exercised its Right of First Opportunity to lease as defined herein.
9. SERVICES AND UTILITIES
A. Provided that Tenant is not in default hereunder, Landlord agrees to
furnish to the Premises five-day per week janitorial service.
Landlord shall also maintain and keep lighted, heated and air
conditioned during reasonable hours of generally recognized business
days, the common entries, common corridors, common stairs and toilet
rooms in the building of which Premises are a part. Landlord shall
not be liable for, and Tenant shall not be entitled to, any reduction
of rental by reason of Landlord's failure to furnish any of the
foregoing when such failure is caused by accident, breakage, repairs,
strikes, lockouts or other labor disturbances or labor disputes of
any character, or by any other cause, similar or dissimilar, beyond
the reasonable control of Landlord. Landlord shall not be liable
under any circumstances for a loss of or injury to property, however
occurring, through or in connection with or incidental to failure to
furnish any of the foregoing.
B. Tenant shall have 24-hour per day, seven-day per week access to its
Premises.
C. Landlord shall provide Tenant a monthly allowance of $3,878.71
(35,261 rentable SF x $.11) for Tenant's electrical service. This
allowance is included in the Base Rent as defined in Article 5 of the
Lease.
Landlord and Tenant recognize that Tenant's electrical service shall
cost in excess of $.11 per square foot per month due to Tenant's
heavy electrical and air conditioning requirements.
Tenant shall be charged for all PG&E charges to the building over and
above the monthly allowance provided above, less any over-standard
charges to other tenant's in the building (any usage over the $.11
allowance provided to each Tenant.) At the time of Lease execution,
no per square foot tenants in the Building other than Fireman's Fund
who currently occupies the entire second floor, have any
over-standard usage. Landlord shall notify Tenant as to any changes
in the existing tenant's electrical usage or any over-standard usage
of new tenants to the building. Tenant may at any time notify
Landlord that in Tenant's view, a particular tenant may be using
over-standard electrical and Landlord will investigate that usage
with the assistance of an electrical engineer and shall report to
Tenant its findings regarding the usage and shall charge the other
tenant for any actual over-standard usage, which amount shall be
deducted from Tenant's over-standard charges. If Tenant does not
agree with Landlord or Landlord's engineer's calculation, Tenant may
have its own engineer evaluate the other tenant's usage.
For the first year of Tenant's occupancy, Landlord shall charge
Tenant $.11 per useable square foot per month for over-standard
electrical usage as a projected expense, which amount is an average
paid by Tenant in its other Premises located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
and ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇. This amount ($3,645.40) shall be paid
along with the monthly rent. At the end of the first year of
occupancy, Landlord shall prepare a PG&E invoice analysis showing the
actual cost of over-standard usage by Tenant. Landlord shall credit
Tenant for any amounts paid in excess of the actual cost of
overstandard usage. Tenant shall pay Landlord for any costs in excess
of the total projected sum paid by Tenant over the first year of
occupancy. The amount paid by Tenant for over-standard electrical
usage for each subsequent year of occupancy shall be based on the
previous year's charges and a similar accounting between Landlord and
Tenant will occur annually.
D. The hours of operation of the heating and air conditioning system for
the building are as follows:
Monday thru Friday: 7:00 a.m. to 6:00 p.m.
Saturdays: 8:00 a.m. to 3:00 p.m.
E. In the event Tenant requires the operation of the heating and air
conditioning system beyond the normal hours of operation for the
building, Tenant shall notify the building manager in advance of the
required extended hour usage, and the building manager shall program
the heating and air conditioning system to operate during the time
period requested by Tenant.
F. In the event Tenant shall request that an override mechanism be
installed during the term of the Lease, an override mechanism shall
be installed on the heating and air conditioning system which
services Tenant's premises. The cost of this mechanism shall be paid
by the Tenant at the time of the installation. This mechanism shall
allow Tenant to have control of the heating and air conditioning
system for its premises in hours other than the normal building hours
stated above.
Along with the override mechanism, an hourly meter shall be attached
to the override mechanism which shall measure Tenant's use of the
heating and air conditioning system beyond the normal building hours.
On a monthly basis, Landlord shall charge Tenant for this usage by
multiplying the number of hours used by the per hour charge for
operating the heating and air conditioning system which shall be
determined by Landlord's electrical engineer and heating and air
conditioning contractor.
10. COMMUNICATIONS INSTALLATION
Tenant has installed certain communications equipment on the roof of the
Building.
Prior to the end of the term of this Lease, Tenant, at Tenant's sole cost
and expense, shall remove the communications equipment and shall, forthwith
and with all due diligence, repair any damage to the Premises caused by
such removal.
11. CONSENT
Landlord and Tenant agree that in the event their consent is required
pursuant to the provisions of the Lease, such consent shall not be
unreasonably withheld.
LANDLORD The ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇ Revocable Trust
By: /s/▇▇▇▇▇▇ ▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇▇▇▇
Its:
------------------------------
By: /s/ ▇▇▇ ▇▇▇▇
------------------------------
▇▇▇ ▇▇▇▇
Its:
------------------------------
Date: March 30, 1994
TENANT Fair, ▇▇▇▇▇ and Company, Incorporated
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------
Its: Executive Vice President
------------------------------
Date: March 10, 1994
EXHIBIT 10.30
SECOND ADDENDUM TO LEASE
BY AND BETWEEN
THE ▇▇▇▇▇▇ AND ▇▇▇ ▇▇▇▇ REVOCABLE TRUST
("THE LANDLORD")
AND
FAIR, ▇▇▇▇▇ AND COMPANY, INCORPORATED
("THE TENANT")
This Second Addendum to Lease dated November 22, 1996 ("Second
Addendum"), is hereby attached to and incorporated into and made a part of that
Lease dated July 10, 1993, by and between The ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇ Revocable
Trust and Fair, ▇▇▇▇▇ and Company, Incorporated as amended by a First Addendum
to Lease dated July 10, 1993 ("the Lease"). The parties agree to the following
terms and conditions set forth herein below:
Recitals
A. Landlord and Tenant are parties the Lease pursuant to which Landlord
leased to Tenant and Tenant leased from Landlord office space containing
approximately 35,261 rentable square feet and 33,140 useable square feet
comprising part of the of the Second Floor of that certain office building known
as Regency Center I ("Regency I") located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ("the Premises").
B. Landlord is currently constructing a building adjacent to Regency I,
which new building will be known as Regency Center II, and which will be leased
in its entirety to Tenant pursuant to an Office Building Lease of even date
herewith.
C. Landlord and Tenant now desire to amend the Lease as hereinafter set
forth.
D. The capitalized terms herein, unless otherwise indicated, shall have
the meanings ascribed to them in the Lease.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Paragraph 8 ("Right of First Opportunity") of the First Addendum to
Lease is hereby deleted in its entirety.
2. Subparagraph A and sub-subparagraph (i) of Paragraph 7 ("Option to
Extend") of the First Addendum to Lease are hereby deleted and the following
substituted therefor:
"A. Landlord grants to Tenant the option to extend the term of this Lease for
the Existing Premises for one (1) ten (10) year period commencing upon
expiration of the Term for the lease of the Existing Premises, upon each and all
of the following terms and conditions:"
"(i) Tenant gives to Landlord and Landlord receives notice of the exercise of
the option to extend this Lease for said additional term no later than twelve
(12) months prior to the time that the option period would commence if the
option were exercised, time being of the essence. If said notification of the
exercise of said option is not so given and received, this option shall
automatically expire;"
3. Except as set forth herein, the Lease shall remain unmodified and in
full force and effect. Should there by any conflict between the terms of the
Lease and the terms of this Second Addendum, the terms of this Second Addendum
shall control.
IT WITNESS WHEREOF, the parties have executed this Second Addendum to
Lease as of the date first written above.
The ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇ Revocable Trust
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇, Trustee
By: /s/ ▇▇▇ ▇▇▇▇
---------------------------------
▇▇▇ ▇▇▇▇, Trustee
Fair, ▇▇▇▇▇ and Company, Incorporated
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Vice President