AMENDMENT NO. 17 TO LEASE
Exhibit 10.3
AMENDMENT NO. 17 TO LEASE
This
Amendment No. 17 to Lease ("Amendment No. 17") is entered into as
of the 14th day of April 2017 between GFE MacArthur Investments,
LLC, a Delaware limited liability company ("Landlord"), as
successor-in-interest to TPF Partners, a California general
partnership, and Autobytel Inc., a Delaware corporation
("Tenant").
RECITALS
A.
Tenant is the
current Tenant, and Landlord is the current Landlord, under that
certain Lease dated April 3, 1997 as amended in Amendment No. 1 to
Lease dated July 9, 1998, Amendment No. 2 to Lease dated May 16,
2001, Amendment No. 3 to Lease dated May 16, 2001, Amendment No. 4
to Lease dated August 8, 2002, Amendment No. 5 to Lease dated
September 12, 2003, Amendment No. 6 to Lease dated January 6, 2005,
Amendment No. 7 to Lease dated March 14, 2005, Amendment No. 8 to
Lease dated July 7, 2005, Amendment No. 9 to Lease dated July 26,
2005, Amendment No. 10 to Lease dated December 1, 2005, Notice of
Lease Term Dates dated January 11, 2006, Amendment No. 11 to Lease
dated January 19, 2006, Lease Surrender and Termination Agreement
dated March 31, 2008, Amendment No. 12 to Lease dated February 6,
2009, Amendment No. 13 to Lease dated March 5, 2009, Amendment No.
14 to Lease dated November 29, 2010, Amendment No. 15 dated October
31, 2012, and Amendment No. 16 dated August 7, 2015 (collectively
the "Lease") covering certain Premises located at the second
(2nd),
third (3rd) and 4th floors at 00000
XxxXxxxxx Xxxx., Xxxx xx Xxxxxx, Xxxxxx of Orange, State of
California (collectively the “Premises”) consisting of
approximately 39,361 rentable square feet, all as more particularly
set forth in the Lease.
B.
Landlord and Tenant
desire to further amend the Lease on the terms and conditions set
forth here in this Amendment No. 17.
NOW, THEREFORE, in consideration of the
mutual covenants herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Landlord and Tenant agree as follows ( capitalized
terms used and not otherwise defined herein shall have the meanings
given in the Lease):
1.
Extension of Lease
Term: The Term of the Lease is hereby extended for a period
of Thirty-Six (36) months commencing August 1, 2017 and expiring
July 31, 2020 (the "Extended Term").
2.
Base Rent:
Base Rent for the Premises during the Extended Term shall be as
follows:
|
Period
|
Base Rent
PSF*
|
Monthly
|
|
August
1, 2017 - July 31, 2018
|
$2.00
|
$65,518.00
|
|
August
1, 2018 - July 31, 2019
|
$2.06
|
$67,483.54
|
|
August
1, 2019 - July 31, 2020
|
$2.12
|
$69,508.05
|
*
Landlord and Tenant acknowledge and agree that during the Extended
Term Tenant shall not be obligated to pay Base Rent or any
Additional Rent with respect to any of the Recapture Premises (as
defined in Section 6, below) and, accordingly, Base Rent and
Tenant's Proportionate Share shall be calculated based on 32,759
rentable square feet (rather than the 39,361 rentable square feet
currently comprising the Premises). Such 32,759 rentable square
feet used to calculate Base Rent and Tenant' Proportionate Share
during the Extended Term shall not be subject to adjustment except
for a potential downward adjustment as described in Section 6,
below.
3.
Base Year:
Commencing August 1, 2017, Tenant’s Base Year shall be reset
to calendar year 2017, and Tenant shall have no obligation to pay
Operating Costs, Operating Expenses or other expense pass throughs
for the initial twelve (12) months of the Extended Term.
Additionally, during the Extended Term, Tenant shall not be
obligated to pay for any Operating Costs, Operating Expenses or
other expense pass throughs related to 1) Taxes, or 2) capital
improvements or other Major Expenditures. Tenant’s
Proportionate Share during the Extended Term shall be 65.38% (which
shall not be subject to adjustment except for a possible downward
adjustment as described in Section 6, below).
4.
Security
Deposit: Landlord acknowledges that it is currently holding
a security deposit from Tenant in the amount of $48,912.00. No any
additional security deposit shall be required in connection with
this Amendment No. 17.
5.
Condition of
Premises: Tenant acknowledges that Landlord has made no
representation and has given no warranty to Tenant regarding the
fitness of the Leased Premises for Tenant’s continued use,
and Tenant accepts the Premises in its “AS-IS”
condition and “WITH ALL FAULTS”. The foregoing shall
not limit Landlord’s obligations set forth in the Lease,
including, without limitation, Landlord's obligations with respect
to repair, maintenance, restoration and the provision of services
and utilities.
-1-
6.
Recapture Premises
on 4th
Floor:
(a)
Effective as of
August 1, 2017, Landlord shall have the right (but not the
obligation) to market up to ½ of the 4th floor (approx.
6,603 RSF), as generally depicted on Exhibit A attached hereto (the
"Recapture Premises"), for lease. The exact location and
configuration of the Recapture Premises shall be determined by
Landlord and Tenant using good faith efforts promptly following
Landlord’s design plan for multi-tenanting the 4th floor (i.e., location of demising
wall(s), multi-tenant corridor(s), exiting, access controls, HVAC
segregation, etc.). In that regard, the parties agree that the
Recapture Premises shall (i) be horizontally contiguous, (ii) not
render any of the remaining space on the 4th floor inaccessible
from a normally configured multi-tenant corridor, and (iii) not
adversely affect Tenant's occupancy, access or use of the remainder
of the Premises on the 4th floor or cause any
violations thereof with applicable laws (including, without
limitation, fire, life-safety and access codes). Any marketing to
or site visits by prospective tenants of the Recapture Premises
will be conducted in cooperation with Tenant to minimize any
disruption of or interference with Tenant’s business and use
of the Premises.
(b)
From and after
August 1, 2017, and provided that the design plan as described
above has been completed and Landlord has commenced negotiations
(as evidenced by the receipt by or submittal from Landlord of a
bona fide draft letter of intent, term sheet, proposal or
specifically prepared and tailored lease document that Landlord is
willing to accept) with a prospective tenant or tenants for the
Recapture Premises, Landlord may, by written notice to Tenant (the
"Recapture Notice"), recapture the Recapture Premises on the date
set forth in the Recapture Notice (the "Recapture Date"), which
Recapture Date shall be not less than sixty (60) days after
Tenant's receipt of the Recapture Notice.
(c)
If Landlord elects
to recapture the Recapture Premises as described above, (i) the
Lease shall terminate as to the Recapture Premises on the Recapture
Date (and the Lease, as amended by this Amendment No. 17, shall
continue thereafter in full force and effect as the remainder of
the Premises), and upon the request of either party, the parties
shall execute written confirmation of the same, (ii) on or before
the Recapture Date, Tenant shall remove its furniture and equipment
from the Recapture Premises and surrender the same to Landlord in
substantially the same condition as existing as of commencement of
the Extended Term, ordinary wear and tear, casualty, condemnation
and matters that are Landlord's obligation excepted, and (iii)
Landlord shall install, on a commercially reasonable basis, and at
Landlord's sole cost and expense, the corridor(s), demising
wall(s), access controls, HVAC segregation and other
multi-tenanting improvements contemplated by the design plan and as
otherwise necessary to create a multi-tenant floor and to separate
the Recapture Premises from the rest of the Premises (collectively,
the "Multi-Tenant Floor Work"). Landlord shall use commercially
reasonable efforts to minimize interference with Tenant's business
operations during or resulting from the Multi-Tenant Floor Work.
Any necessary relocation of Tenant's phone, data, cabling, utility
or other lines currently located in the Recapture Premises or
affected by the Multi-Tenant Floor Work shall be performed by
Landlord at its sole cost and expense pursuant to a schedule
mutually acceptable to Landlord and Tenant so that Tenant's
operations during normal business hours are not adversely
affected.
(d)
After Landlord has
completed the Multi-Tenant Floor Work, Landlord shall, at Tenant's
request, have the usable and rentable square feet of the Recapture
Premises and the remainder of the Premises on the 4th floor measured by a
qualified office space measurement firm in accordance with BOMA and
provide a copy of such measurement to Tenant. If such measurement
indicates that the remainder of the Premises on the 4th floor is less than
6,603 rentable square feet, the Base Rent and Tenant's
Proportionate Share shall be adjusted to reflect such reduction. In
no event shall such measurement, however, result in any increase in
the Base Rent or Tenant's Proportionate Share.
7.
Parking: In
common surface parking shall be provided to Tenant at a ratio of
four (4) stalls per 1,000 rentable square feet, at no charge, in
the existing parking area for the Premises. Such parking shall be
based on the rentable square footage of the entire current Premises
including the Recapture Premises. Subject to the conditions in
Section 6, in the event that Landlord elects to take possession of
the Recapture Premises, as of the Recapture Date Tenant’s
allocation of parking stalls shall be reduced to a ratio of four
(4) stalls per 1,000 rentable square feet, at no charge. Such
reduced parking shall be based on the rentable square footage of
the entire current Premises, not including the Recapture Premises.
Any redevelopment, demolition or construction in areas of Colton
Plaza shall not reduce the number of parking spaces available to
Tenant as set forth in this Section 7, and shall not impair
Tenant’s access or egress to or from, nor use of, such
existing parking area in any material way.
8.
Options:
Upon acceptance and execution of this Amendment No. 17, Tenant
shall have no further options to extend the lease. Any references
in the Master Lease or prior amendments to an option to extend are
hereby rescinded by this Amendment No. 17.
9.
Landlord’s
Right to Terminate: Upon acceptance and execution of this
Amendment No. 17, Landlord shall have no ongoing right to terminate
the Lease prior to the natural expiration on July 31, 2020. Any
references in the Master Lease or prior amendments to a Landlord
right to terminate are hereby rescinded by this Amendment No.
17.
10.
Authority.
Each individual executing this Amendment No. 17 on behalf of Tenant
hereby represents and warrants (without any personal liability)
that Tenant is a duly formed and existing entity qualified to do
business in California and that Tenant has full right and authority
to execute and deliver this Amendment No. 17 and that each person
signing on behalf of Tenant is authorized to do so. Tenant shall,
promptly following Landlord's request therefor, deliver to Landlord
evidence of such formation, existence, qualification and authority.
Likewise, each individual executing this Amendment No. 17 on behalf
of Landlord hereby represents and warrants (without any personal
liability) that Landlord is a duly formed and existing entity
qualified to do business in California and that Landlord has full
right and authority to execute and deliver this Amendment No. 17
and that each person signing on behalf of Landlord is authorized to
do so. Landlord shall, promptly following Tenant's request
therefor, deliver to Tenant evidence of such formation, existence,
qualification and authority.
-2-
11.
Attorneys'
Fees. If either party commences litigation against the other
for the specific performance of this Amendment No. 17, for damages
for the breach hereof or otherwise for enforcement of any remedy
hereunder, the parties hereto agree to and hereby do waive any
right to a trial by jury and, in the event of any such commencement
of litigation, the prevailing party shall be entitled to recover
from the other party such costs and reasonable attorneys' fees as
may have been incurred, whether at trial or on any appeal
therefrom, including any and all costs incurred in enforcing,
perfecting and executing such judgment.
12.
Confirmations.
Tenant hereby certifies and confirms to Landlord that, to Tenant's
actual knowledge, as of Tenant's execution and delivery hereof,
Landlord is not in default under the Lease, as amended, and Tenant
has no claim, defense or offset with respect to the Lease, as
amended. Landlord hereby certifies and confirms to Tenant that, to
Landlord's actual knowledge, as of Landlord's execution and
delivery hereof, Tenant is not in default under the Lease, as
amended, and Landlord has no claim, defense or offset with respect
to the Lease, as amended.
13.
Brokers.
Tenant represents and warrants to Landlord that Tenant has not
dealt with any real estate broker or agent in connection with this
Amendment No. 17 or its negotiation except for Landlord, Xxx &
Associates, Inc. - Irvine, (“Landlord’s Agent”)
and CBRE (“Tenant’s Agent”). Tenant shall
indemnify, defend, protect and hold Landlord harmless from and
against any and all cost, expenses, claims, and liabilities
(including costs of suit and reasonable attorneys' fees) for any
compensation, commission or fees claimed by any other real estate
broker or agent in connection with this Amendment or its
negotiation by reason of any act of Tenant. Landlord shall
indemnify, defend, protect and hold Tenant harmless from and
against any and all cost, expenses, claims, and liabilities
(including costs of suit and reasonable attorneys' fees) for any
compensation, commission or fees claimed by any other real estate
broker or agent in connection with this Amendment or its
negotiation by reason of any act of Landlord. Landlord shall be
solely responsible for payment of a commission to Landlord's Agent
and Tenant's Agent pursuant to the terms of a separate written
agreement.
14.
Confidentiality.
Tenant and Landlord shall keep confidential and shall not
intentionally and voluntarily disclose the terms and conditions set
forth in this Lease (except to disclose the location and size of
the Premises and the term of the Lease), including, without
limitation, the basic rent and additional rent and all other
financial terms, without the prior written consent of the other,
except: (1) to its directors, officers, partners, members,
managers, legal counsel, accountants, financial advisors and
similar professionals and consultants to the extent that Tenant or
Landlord deems it necessary or appropriate in connection with the
transactions contemplated hereunder (and each party shall inform
each of the foregoing parties of its obligations under this Section
and use reasonable efforts to secure the agreement of such parties
to be bound by the confidentiality terms hereof), (2) to
prospective assignees, sublessees, purchasers, lenders and/or
investors, or (3) as otherwise required by law or regulation,
including filings required (as determined by the filing party) by
applicable government agencies.
15.
Entire
Agreement. lt is understood and acknowledged that there are
no oral agreements between the parties hereto affecting the Lease,
as amended, and the Lease, as amended, supersedes and cancels any
and all previous negotiations, arrangements, brochures, agreements
and understandings, if any, between the parties hereto or displayed
by Landlord to Tenant with respect to the subject matter thereof,
and none thereof shall be used to interpret or construe the Lease,
as amended. The Lease and any amendments or side letters or
separate agreements executed by Landlord and Tenant in connection
with the Lease, as amended, contain all of the terms, covenants,
conditions, warranties and agreements of the parties relating in
any manner to the rental, use and occupancy of the Premises, shall
be considered to be the only agreement between the parties hereto
and their representatives and agents. None of the terms, covenants,
conditions or provisions of the Lease, as amended, can be modified,
deleted or added to except in writing signed by the parties hereto.
All negotiations and oral agreements acceptable to both parties
have been merged into and are included herein. Any deletion of
language from the Lease, as amended, prior to its execution by
Landlord and Tenant shall not be construed to raise any
presumption, canon of construction or implication, including,
without limitation, any implication that the parties intended
thereby to state the converse of the deleted language.
16.
Further
Assurances. Landlord and Tenant shall, upon request by the
other, execute and deliver such documentation and information and
take such other action as may be reasonably necessary to effectuate
the intent of this Amendment or to implement the provisions
hereof.
Except
as modified by Amendment No. 17, all terms set forth in the Lease,
as amended, continue to be in full force and effect.
[Signature Page
Follows]
-3-
IN WITNESS WHEREOF, the parties have
entered into this Amendment No. 17 as of the day and year first
written above.
|
LANDLORD:
GFE
MacArthur Investments, LLC,
a
Delaware limited liability company
By:
/s/Xxxx
Xxx
Print
Name: Xxxx Xxx
Title:
Manager
Date:
4/17/17
|
TENANT:
a
Delaware corporation
By:
/s/Xxxxxxx X.
Xxxxx
Print
Name: Xxxxxxx X.
Xxxxx
Title:
President & Chief
Executive
Officer
Date:
April 14,
2017
By:
/s/Xxxxx X.
Xxxxxx
Print
Name: Xxxxx X.
Xxxxxx
Title:
Executive Vice President,
Chief Legal and Administrative Officer and
Secretary
Date:
April 14,
2017
|
-4-
Exhibit A
General
Location and Configuration of Recapture Premises
-5-
