EXHIBIT 10.31
ADDENDUM TO LEASE AGREEMENT
By and Between AmberJack, Ltd. ("Landlord") and
Planar Systems, Inc. ("Tenant")
Dated as of August ____, 2001
Section 32 LEASE EXTENSION:
32.1 Provided that at the end of the primary term of this Lease, Tenant
is not in default of any term, condition or covenant contained in this Lease
beyond any applicable cure period, Tenant (but not any assignee or subtenant
other than permitted transferees) shall have the option to extend the base term
of this Lease, by written notice delivered to Landlord no later than June 13,
2011 (as to the first extension) and June 13, 2016 (as to the second extension),
for two (2) successive additional terms of five (5) years, under the same terms,
conditions and covenants contained herein, except:
32.1.1 Tenant shall have no further extension options unless
expressly granted by Landlord in writing; and
32.1.2 The rental for the extension term shall be based on fair
market rental rates for recent leases within AmberGlen and on the then
prevailing rental rates for properties of equivalent quality, size, utility and
location, with the length of the lease term, and credit standing of the Tenant
herein, to be taken into account. In determining a fair market rate, Landlord
shall consider all elements affecting the lease transaction, including but not
limited to the fact that Tenant may not require an improvement allowance typical
of a new Tenant, and that Landlord shall not lose rent because of any marketing
or construction time.
32.2 Upon notification from Tenant of the exercise of this extension
option, Landlord shall within ten (10) days thereafter notify Tenant in writing
of the proposed rental for the extension term; during the thirty (30) day period
following Landlord's delivery of the proposed rental rate, Landlord and Tenant
shall engage in good faith negotiations to reach agreement on fair market rent.
In the event Landlord and Tenant do not agree, if Tenant decides to exercise its
option to renew, the extension rental shall be determined as provided in Section
32.3.
32.3 Within fifteen (15) days following expiration of the 30-day
negotiation period, Landlord and Tenant shall each appoint a disinterested and
qualified real estate professional. If these two real estate professionals
cannot agree upon an extension rental within thirty (30) days following their
appointment, the two appointees shall forthwith select a third disinterested and
qualified real estate professional, and the decision of a majority of the three
real estate professionals shall be binding. Notification in writing of this
decision shall be made by the appraisers to Landlord and Tenant within thirty
(30) days following the selection of the third appraiser. Landlord and Tenant
shall bear the expense of the appraiser appointed by each, and the expense of
the third appraiser shall be shared equally by both parties.
SECTION 33 SATELLITE DISHES:
Landlord hereby grants Tenant the exclusive right to install and maintain
two (2) satellite dishes and related facilities and antenna ("Satellite Dish")
on the roof of the Building, at Tenant's expense, which Satellite Dish and its
location shall be located such that they cannot be viewed from ground level
within AmberGlen, which location shall be reasonably approved by Landlord, and
which shall be in compliance with the Project Protective Covenants and the terms
of the Antenna License Agreement attached to the Lease as Exhibit C-1, the terms
of which are incorporated herein by this reference. There shall be no additional
fee charged to Tenant for use of the roof for the Satellite Dish.
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SECTION 34 SIGNAGE:
34.1 Landlord hereby grants Tenant, so long as Tenant is the named
Tenant or any permitted assignee of the named Tenant, the right to install and
maintain up to two signs on the Building's exterior ("Signage") in areas which
Tenant and Landlord determine to be the most prominent on the Building, at
Tenant's expense. Such Signage and its location and manner of attachment are
subject to the prior reasonable approval of Landlord, and must be in compliance
with the Project Protective Covenants and all applicable laws, rules, codes and
regulations.
34.2 Tenant shall submit to Landlord all plans and specifications for
the installation of the Signage, together with a properly-completed Application
for Architectural Review on Landlord's standard form. Tenant covenants and
agrees to indemnify, defend and hold harmless Landlord against any loss, cost or
expense (including reasonable attorney fees) which may be sustained or incurred
by it, and assume all liability for any property damage or bodily injuries in
any manner related to Tenant's installation, maintenance, operation or removal
of the Signage. Tenant agrees to pay all taxes, permit fees, insurance premiums,
and repairs to the area where the Signage has been installed resulting from the
installation of the Signage, and at Landlord's request to remove such Signage
upon termination of this Lease and restore the affected areas to their original
condition.
34.3 The installation, maintenance, repair, and operation and removal
shall be completed by Tenant in a good and workmanlike manner and in conformity
with (i) the plans, specifications and location as approved by Landlord, (ii)
all governmental requirements, including any governmental permits and approvals
for the operation of such Signage. Tenant shall be responsible, at Tenants
expense, for obtaining any necessary governmental permits and approvals for such
Signage. Removal of Signage shall be at Tenant's expense and repair shall be
virtually undetectable.
SECTION 35 RIGHT OF FIRST OPPORTUNITY TO PURCHASE:
35.1 Excepting as part of any bulk sale of AmberGlen property interests
by Landlord and so long as there is no current Event of Default hereunder, ,
Tenant shall have the right of first opportunity to negotiate to purchase the
Building on the terms and conditions of this Section 35 ("First Offer").
35.2 Tenant's First Offer right shall apply only if Landlord (i)
receives an unsolicited offer to purchase the Building which is acceptable to
Landlord ("Purchase Offer"); or (ii) decides to market the Building for sale. In
either case, subject to the terms of this Section 35, Landlord shall not, during
the term of this Lease, accept the Purchase Offer or market the building for
sale without first giving Tenant the right to purchase the Building as provided
in Section 35.4 below.
35.3 To the extent required under this Section 35, Landlord shall not
accept a Purchase Offer unless and until Landlord has first notified Tenant in
writing of the terms thereof and until a period of fifteen (15) days has elapsed
from the date of such notice without Tenant having notified Landlord in writing
of Tenant's agreement to match the terms of the Purchase Offer. Tenant must
match each and every term and condition of the Purchase Offer . If Tenant does
not accept the Purchase Offer, Tenant's rights under this Section 35.4 shall
automatically terminate, in which case Tenant shall execute such recordable
instrument as Landlord shall request in order to clear title to the Building and
the property on which it is located.
35.4 To the extent required under this Section 35, Landlord shall not
market the Building for sale unless and until Landlord has first notified Tenant
in writing of the terms upon which Tenant may purchase the Building (the "Sale
Offer") and until a period of fifteen (15) days has elapsed from the date of the
Sale Offer without Tenant having notified Landlord in writing of Tenant's
acceptance of the Sale Offer. Tenant must accept the Sale Offer on an
all-or-nothing basis. Except as provided in the Sale Offer, Landlord shall have
no obligation to improve the Building and Tenant shall accept the same in its
then "As Is" condition. If Tenant does not accept the Sale Offer, Tenant's
rights under Section 35.5 shall automatically terminate. If Landlord, at a later
time, changes the published market price of the Building to
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an amount which is less than ninety-seven percent (97%) of the sale price set
forth in the Sale Offer, Landlord shall for that one time, give Tenant a new
Sale Offer after which Tenant shall have five (5) business days to notify
Landlord in writing of Tenant's acceptance of such New Sale Offer. Tenant must
accept the new Sale Offer on an all-or-nothing basis. If Tenant does not accept
the New Sale Offer, Tenant shall have no further rights under this Section 35.4.
In either case, Tenant agrees to execute such recordable instrument as Landlord
shall request in order to clear title to the Building and the property on which
it is located.
35.5 If Tenant matches the Purchase Offer or accepts the Sale Offer,
Tenant shall, within twenty-one (21) days after request by Landlord, execute a
formal purchase and sale agreement ("PSA"), which shall include a clause whereby
an Event of Default beyond any applicable cure period under this Lease shall be
an Event of Default under the PSA and vice versa. Failure of Tenant to execute
such PSA shall have the effect of terminating Tenant's right to purchase the
Building pursuant to the Purchase Offer, the Sale Offer and this Section 35.
35.6 In addition to the termination provided for in Sections 35.4 and
35.5, if Tenant declines or fails timely to exercise a Purchase Offer or a Sale
Offer as provided above, Landlord shall thereafter be free to sell the Building
on any terms and conditions Landlord may choose at its sole discretion.
35.7 The First Offer rights granted herein may only be exercised if
there is no current Event of Default hereunder. In the event this Lease is
terminated for any reason, the rights granted to Tenant in this Section shall
also terminate at the same time. In the event Tenant exercises the First Offer
rights as provided herein and subsequently becomes in default which is not
timely cured (if cure of such default is permitted under the Lease), prior to
closing the purchase and sale of the Building, Landlord may elect, by written
notice to Tenant, to terminate Tenant's prior exercise of its First Offer, in
which event Tenant shall have no rights with respect to the Building or the
applicable Purchase Offer, Sale Offer or PSA. The First Offer is personal to the
Tenant named herein and its permitted transferees under Section 10.4 of the
Lease.
SECTION 36 HOLD OVER RIGHTS:
Tenant shall have the unilateral right ("Holdover Right"), upon 180 days
prior written notice to Landlord ("Holdover Notice"), to occupy the Premises for
a period of no more than six (6) months beyond the Expiration Date of the
initial term or any extension term. The Holdover Notice shall be given not more
than one (1) year nor less than six (6) months prior to the applicable
expiration date and shall specify the number of months in the holdover period
("Holdover Period"). Monthly Base Rent during the Holdover Period shall be one
hundred twenty percent (120%) of the Monthly Base Rent for the last period prior
to the applicable expiration date. If Tenant exercises its Holdover Right, upon
expiration of the Holdover Period, the provisions of Section 20.3 of the Lease
shall apply to any subsequent holdover, except that the Monthly Base Rent shall,
as of the date the Holdover Period expires, be one hundred fifty percent (150%)
of the Monthly Base Rent applicable during the Holdover Period.
SECTION 37 EMERGENCY POWER/COMPRESSOR:
Subject to compliance with applicable laws, ordinances and regulations, and
to design review and approval which shall be conducted in accordance with the
procedures set forth in the AmberGlen Protective Covenants, Landlord shall
permit Tenant to construct at Tenant's sole cost and expense a diesel or natural
gas powered generator and air compressor or nitrogen tank (in an area 12 feet by
20 feet and no farther than 25 feet from the exterior wall of the Building) to
provide emergency electrical service during power outages to the Building.
Tenant shall be responsible for obtaining (and delivering to Landlord) any
special permits or other approvals required for the installation of such
improvements.
All costs shall be borne by Tenant, unless Tenant chooses during
construction of the Tenant Improvements to utilize the Tenant Improvement
Allowance for said work. Tenant shall not be permitted to sell power generated
by such improvements to any tenant within AmberGlen, without Landlord's prior
written consent. Upon expiration of the Lease Tenant may remove such
improvements, unless the cost
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thereof was paid from the Allowance. Any removal shall comply with the
requirements of Section 13.2 of the Lease.
SECTION 38 MEDIATION:
Excepting disputes regarding (i) payment of Rent, (ii) determination of
rental rates during any extension term under Section 32 (which shall be
determined exclusively as provided in Section 32) or (iii) any rights arising
under Section 35 (Right of First Opportunity to Purchase) or (iv) Events of
Default arising under Section 21.1.4 through 21.1.6, the Landlord and Tenant
mutually agree that any dispute that may arise under this Lease will be
submitted to a mediator agreed to by both parties as soon as such dispute arises
and prior to the commencement of litigation. Such mediation shall occur in
Portland, Oregon and the mediation fees and mediator's expenses shall be shared
equally by the parties. In the event disputes are not resolved within thirty
(30) days by mediation, the parties agree the disputes shall be resolved by
litigation. Except in the case of possession which shall be governed by any
applicable expiration date, any periods required for action under this Lease
will be deemed extended by the period of any mediation.
LANDLORD TENANT
AmberJack, Ltd., an Arizona Planar Systems, Inc., an Oregon
corporation corporation
By _____________________________ By: __________________________________
Title: _________________________ Title: _______________________________
Date: __________________________ Date: ________________________________
By: ____________________________ By: __________________________________
Title: _________________________ Title: _______________________________
Date: _________________________ Date: ________________________________
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