ADDENDUM
This ADDENDUM dated
____________ (“Addendum&=
#8221;)
is made to that certain Office Lease (the “Lease”), between _____________________________, a
________________________________ (“Landlord”),
and _____________________ (“=
Tenant”).
Notwithstanding any=
thing
contained in the Lease to the contrary, the provisions set forth below will=
be
deemed to be a part of the Lease and shall supersede any contrary provision=
in
the Lease. All references in =
the
Lease and in this Addendum shall be construed to mean the Lease as amended =
and
supplemented by this Addendum. All
defined terms used in this Addendum, unless specifically defined in this
Addendum, shall have the same meaning as such terms have in the Lease. Any
inconsistency between the Lease and this Addendum shall be resolved in favo=
r of
the provisions of this Addendum.
1. =
&nb=
sp;
Commence=
ment
Date. The Commencement Date shall be the=
later
of (i) ______________ (“Fixe=
d Date”),
or (ii) the date Landlord substantially completes the tenant improvements
(“Tenant Improvements=
221;)
in accordance with Tenant’s Design Development Plan dated
_________________, and attached hereto as Exhibit ____ (“DD Plan”); provided however=
, if
for any reason Landlord fails to deliver possession of the Premises in the
condition as required under the Lease within thirty (30) days after the Fix=
ed
Date, then unless such delay is caused by Tenant, Tenant shall have the rig=
ht
to terminate this Lease.
2. =
&nb=
sp;
Turn-Key=
. =
This
Lease is “turn-key” in which the Landlord shall, at
Landlord’s sole cost and expense, construct the Premises in accordance
with the DD Plan (defined above in this Addendum). Tenant shall not pay for any costs=
or
expenses for the Tenant Improvements including, without limitation, any cos=
ts
and expenses exceeding Landlord’s estimated amount for the Tenant
Improvements (“Excess Costs<=
/b>”)
unless such Excess Costs are due to Tenant delays or Tenant change orders, =
in
which event Tenant shall pay for such Excess Costs within ten (10) days wri=
tten
notice from Landlord.
3. = &nb= sp; Conditio= n of Premises. Landlord represents and warrants to Tenant that as of the Commencement Date, (i) the Premises, (ii) the Te= nant Improvements, (iii) the structural aspects of the Building including, witho= ut limitation, the roof and the foundation, (iv) the Common Areas, and (v) the building systems including, without limitation, the HVAC, electrical, plumb= ing, and all other mechanical systems, shall all be in good order, condition, and repair, and in compliance with all federal, state, and local ordinances, co= des, regulations, and other laws, including, without limitation, the Americans w= ith Disabilities Act and hazardous material laws (collectively, “Applicable Laws”). Tenant shall not be required to ma= ke any repairs to, or otherwise pay for directly or through Operating Expenses, any defect in any of the items listed in subsections (i)-(v) in this Section existing prior to the Commencement Date.&n= bsp; Without limiting any of the foregoing, Tenant shall have ninety (90) days after delivery of possession of the Premises within which to notify La= ndlord of any defect which Tenant discovers, and Landlord shall repair such defect= as soon as possible (and in no event longer than thirty (30) days after Tenant’s notice is given) at Landlord’s sole cost and expense.<= o:p>
4. = &nb= sp; Complian= ce with Laws. Tenant shall be required to comply= with all Applicable Laws triggered by Tenant’s specific use of the Premise= s if that use is for other than for general office purposes. Landlord shall be required to comply with all other Applicable Laws. Landlord shall, at Landlord’= s sole cost and expense, pay for all costs required to comply with Applicable Laws existing prior to the Commencement Date, but may pass through its costs to comply with Applicable Laws (to the extent those laws arise after the Commencement Date) as part of Operating Expenses (subject to the limitations provided below in connection with the Exclusions from Operating Expenses).<= o:p>
5. =
&nb=
sp;
Assignme=
nt and
Subletting. Tenant shall have the right to ass=
ign
this Lease or to sublet any portion of the Premises (collectively, “Transfer”) to any (i) entity
resulting from a merger or consolidation with Tenant, (ii) entity succeedin=
g to
the business and assets of Tenant, or (iii) entity controlled by, controlli=
ng,
or under common control with Tenant (collectively, “Affiliate”), without Landlord’s consent. To the extent Landlord’s con=
sent
is required for any Transfer under the Lease, Landlord’s consent shall
not be unreasonably withheld, delayed, or conditioned. In no event shall Landlord be perm=
itted
to withhold its consent to a transferee based on such transferee’s net
worth amount unless such amount is less than an amount sufficient to meet t=
he
Lease obligations.
6. =
&nb=
sp;
Tenant O=
ptions.
Tenant’s options stated in this Addendum and in the Lease shall
not be personal to Tenant and may be exercised by any Tenant Affiliate, or =
any
approved assignee or subtenant.
Tenant shall not lose any of its options so long as Tenant is not in
default beyond any applicable cure period.
(a)&=
nbsp; &nbs=
p;
Fair Market Ren=
tal
Rate. Tenant’s rent during any ext=
ension
term and/or for any expansion space shall be the then current Fair Market
Rental Rate as defined herein. Fair
Market Rental Rate shall mean the arms-length fair market annual rental rate
under new and renewal leases and amendments entered into on or about the da=
te
on which the Fair Market Rental Rate is being determined for space comparab=
le
to the Premises in the Building and other comparable office buildings (in t=
erms
of location, age, existing improvements, services provided, and other such
relevant factors) in the local County area. The determination of Fair Market R=
ental
Rate shall include, without limitation, the following factors: rent abateme=
nts,
tenant improvement allowances and any other concessions, and a new base yea=
r,
if applicable. For example, i=
f the
then current market terms dictate that landlords provide tenants in compara=
ble
transactions with tenant improvement allowances of $30 per rentable square
foot, then in addition to adjusting the new rental rate, Landlord shall pro=
vide
Tenant a $30 per rentable square foot tenant improvement allowance.
Landlord and Tenant=
shall
attempt to determine the Fair Market Rental Rate using their best good faith
efforts. If Landlord and Tena=
nt
fail to reach agreement within ten (10) days following Tenant’s exerc=
ise of
the extension option (or expansion option), then both parties agree to reso=
lve
such disagreement as follows: Landlord and Tenant shall, within twenty (20)
days following Tenant’s exercise of its option, each appoint an
independent real estate broker with at least five (5) years commercial real
estate office leasing experience in the ‘county in which the Premises=
are
located. The two brokers shall
then, within ten (10) days after their designation, select an independent t=
hird
broker with said qualifications.
The third broker shall, within ten (10) days of being selected, choo=
se
either Landlord’s or Tenant’s submission of the Fair Market Ren=
tal
Rate, whichever one is closer to the actual amount, as determined by the th=
ird
broker, which selected amount shall be the Fair Market Rental Rate. The losing party shall pay for all=
costs
associated wit this process.
7. =
&nb=
sp;
Landlord
Indemnity. Landlord shall indemnify, defend (=
with
counsel reasonably approved by Tenant), and hold Tenant harmless from any l=
oss,
cost, liability, damage or expense including, but not limited to, penalties,
fines, and actual attorneys’ fees and costs (collectively, “Claims”) arising from any b=
reach
or default in the performance of any obligation to be performed by Landlord
under this Lease, or arising from any negligent act, fault or omission of
Landlord or of its agents, employees or contractors, and from and against a=
ll
costs, attorneys’ fees, expenses, and liabilities incurred in, or ari=
sing
out of, any such Claims or any action or proceeding brought thereon. Notwithstanding anything to the co=
ntrary
in the Lease, Tenant shall not be required to indemnify and release Landlord
from any Claims arising outside of the Premises for which Landlord maintain=
s or
is required to maintain insurance under the Lease.
8. =
&nb=
sp;
Hazardous
Materials. Landlord represents and warrants to
Tenant that as of the Commencement Date, there are no hazardous materi=
als
in the Building or the Premises in violation of any Applicable Law. Landlord shall be responsible for =
all
costs and expenses relating to hazardous materials unless such costs and
expenses are directly due to Tenant’s intentional acts or
negligence. In no event shall
Tenant be liable for any costs or expenses associated with hazardous materi=
als
unless such costs result directly from Tenant’s intentional acts or
negligence.
9. =
&nb=
sp;
Surrende=
r of
Premises. Tenant shall not be required to re=
move
any of its initial Tenant Improvements at the end of the Lease Term. Landlord may require Tenant to rem=
ove
any of Tenant’s subsequent alterations to the Premises at the end of =
the
Lease Term, provided Landlord notifies Tenant in writing, within ten (=
10)
days after receiving Tenant’s notice of any such proposed alteration,
that Landlord will require such removal at the end of the Lease Term. If Landlord fails to notify Tenant=
as
required herein, Tenant may, but shall not be required to, remove any such
alterations.
10. =
No Lien =
on
Tenant’s Property. In no event shall Landlord have an=
y lien
on any of Tenant’s property whatsoever. Any language to the contrary in the
Lease is hereby deleted in its entirety.
11. =
Common A=
reas
and Rules and Regulations. Landlord shall not make any change=
s to
the Common Areas or the Rules and Regulations which would adversely affect
Tenant’s use of, access to and from the Premises, or materially incre=
ase
any of Tenant’s obligations under this Lease. In the event there is any inconsis=
tency
between the Lease and the Rules and Regulations, the Lease shall control.
12. =
Interrup=
tion
of Services. In the event of any interruption of
services to the Premises for more than three (3) consecutive days which
unreasonably interferes with Tenant’s use of the Premises, TenantR=
17;s
rent obligations under the Lease shall be abated until such time as such
services are restored, unless such interruption is caused by Tenant in which
case Tenant shall not have any right to abate its rent. If such interruption continues for=
30
consecutive days, Tenant shall have the right to terminate this Lease witho=
ut
prejudice to any legal rights Tenant may have against Landlord.
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LANDLORD: ____________________________________ By: =
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