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EXHIBIT 10.41
ADDENDUM 'A'
TO LEASE DATED SEPTEMBER 1, 1996
000 XXXXXX XXXXXX, XXXXX XXXXX
XXXXXXXXXX
3.4 Lessee shall have the option to renew this Lease for two (2) separate five
(5) year option periods subsequent to August 31, 2001. Monthly rent will be
ninety percent (90%) of the then current fair market monthly rent ("Fair
Market Rent") for the Premises as of the commencement date of the
applicable extended term, as determined by the agreement of the parties or,
if the parties cannot agree within sixty (60) days prior to the
commencement of such extended term, then by an appraisal. All other terms
and conditions contained in this Lease shall remain in full force and
effect and shall apply during the option terms. Lessee shall give Lessor at
least ninety (90) days notice of its intent to exercise this option.
If it becomes necessary to determine the Fair Market Rent of the Premises
by appraisal, real estate appraiser(s), all of whom shall be members of the
American Institute of Real Estate Appraisers and who have at least five (5)
years experience appraising industrial space located in the vicinity of the
Premises shall be appointed and shall act in accordance with the following
procedures:
If the parties are unable to agree on the Fair Market Rent within the
allowed time, either party may demand an appraisal by giving written notice
to the other party, which demand to be effective must state the name,
address and qualifications of an appraiser selected by the party demanding
an appraisal (the "Notifying party"). Within ten (10) days following the
Notifying Party's appraisal demand, the other party (the "Non-Notifying
Party") shall either approve the appraiser selected by the Notifying Party
or select a second properly qualified appraiser by giving written notice of
the name, address and qualification of said appraiser by giving written
notice of the name, address and qualification of said appraiser to the
Notifying Party. If the Non-Notifying Party fails to select an appraiser
within the ten (10) day period, the appraiser selected by the Notifying
Party shall be deemed selected by both parties and no other appraiser shall
be selected. If two appraisers are selected, they shall select a third
appropriately qualified appraiser. If the two appraisers fail to select a
third qualified appraiser, the third appraiser shall be appointed by the
then presiding judge of the county where the Premises are located upon
application by either party.
If only one (1) appraiser is selected, that appraiser shall notify the
parties in simple letter form of its determination of the Fair Market Rent
for the Premises within fifteen (15) days following his selection, which
appraisal shall be conclusively determinative and binding on the parties
as the appraisal Fair Market Rent. If multiple appraisers are selected, the
appraisers shall meet not later than ten (10) days following the selection
of the last appraiser. At such meeting the appraisers shall attempt to
determine the Fair Market Rent for the Premises as of the commencement date
of the extended term by the agreement of at least two (2) of the
appraisers. If two (2) or more of the appraisers agree on the Fair Market
Rent for the Premises at the initial meeting, such agreement shall be
determinative and binding upon the parties hereto and the agreeing
appraisers shall, in simple letter form executed by the agreeing
appraisers, forthwith notify both Lessor and Lessee of the amount set by
such agreement. If multiple appraisers are selected and two (2) appraisers
are unable to agree on the Fair Market Rent for the Premises, all
appraisers shall submit to Lessor and Lessee an independent appraisal of
the Fair Market Rent for the Premises in simple letter form within twenty
(20) days following appointment of the final
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appraiser. The parties shall then determine the Fair Market Rent for the
Premises by averaging the appraisals; provided that any high or low
appraisal, differing from the middle appraisal by more than ten percent
(10%) of the middle appraisal, shall be disregarded in calculating the
average.
The appraisers' determination of Fair Market Rent shall be based on
rental of space of the same age, construction, size and location as the
Premises with the improvements installed therein at Lessor's expense and
shall take into account Lessee's obligations to pay additional rent
under this Lease. In determining Fair Market Rent, the appraisers shall
not consider any alterations installed in the Premises at Lessee's
expense.
If only one (1) appraiser is selected, then each party shall pay
one-half of the fees and expenses of that appraiser. If three (3)
appraisers are selected, each party shall bear the fees and expenses of
the appraiser it selects and one-half of the fees and expenses of the
third appraiser.
Notwithstanding anything to the contrary contained in this Lease, if the
rent during any extended term is determined by appraisal and if Lessee
does not, in its sole discretion, approve the rental amount established
by such appraisal, Lessee may rescind its exercise of the option by
giving Lessor written notice of such election to rescind within ten (10)
days after receipt of all appraisals. If Lessee rescinds its exercise of
the option, then (i) this Lease shall terminate on the thirtieth (30th)
day after Lessee's notice of rescission or on the date this Lease would
have otherwise terminated absent Lessee's exercise of the option,
whichever date is later; and (ii) Lessee shall pay all costs and
expenses of the appraisal.
7.5(a) Lessee may make such alterations, additions or utility installations as
are reasonably necessary to conduct its media manufacturing business. At the
end of this Lease (including option periods), Lessee will restore the building
to its original condition except for structural improvements and insulation,
subject only to normal wear and tear.
8.3(a) Lessee will provide insurance to cover any liability or contingent
liability arising from the improper discharge of waste materials, toxic
chemicals and or polluted water.
9.6(b) If Lessor shall be obligated to repair or restore the Premises under the
provisions of this Xxxxxxxxx 0, Xxxxxx may at Lessee's option undertake such
repair and restoration. In such event, Lessor shall assign the proceeds of any
applicable insurance to Lessee to the extent of the required repairs or
restoration.
48 Lessor hereby grants to Lessee a right of first refusal (the "Right of
First Refusal") to purchase all or any portion of the Premises or
interest therein that Lessor elects to offer for sale (the "Transfer
Premises"). If Lessor proposes to sell or otherwise transfer the
Transfer Premises to a third party at any time during the term of this
Lease (including extension options), Lessor shall first give Lessee
written notice of its intent to sell or transfer the Transfer Premises
("Lessor's Notice"). Lessor's Notice shall include all of the material
business terms (the "Business Terms") upon which Lessor is willing to
sell the Transfer Premises, including, without limitation, the price,
the amount and terms of any seller financing, the amount and terms of
any assumable third party financing, the date for close of escrow, the
state of title to be transferred, and the method of proration of
closing expenses. A copy of any written offer to purchase the Transfer
Premises by any third party shall be attached to Lessor's Notice.
Lessee may elect to exercise its Right of First Refusal by giving Lessor
written notice of such election on or before the twentieth (20th)
business day following actual receipt of Lessor's Notice. Upon Lessee's
exercise of the Right of First Refusal, Lessor shall sell the Transfer
Premises to Lessee on the Business
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Terms stated in Lessor's Notice. If Lessee does not elect in writing to
exercise its Right of First Refusal within the allowed time period,
Lessor thereafter shall have the right to transfer the Transfer Premises
that has been offered to Lessee; provided (i) the sale is consummated on
the Business Terms set forth in Lessor's Notice, and (ii) escrow for the
sale closes on or before the ninetieth (90th) day following Lessee's
receipt of Lessor's Notice. Any sales transaction or transfer, other
than a sale or transfer complying with the foregoing, shall be deemed a
new determination by Lessor to sell the Transfer Premises and no such
sale may be consummated unless Lessee is first offered the right to
purchase the Transfer Premises in accordance with the provisions of this
Right of First Refusal. Lessee's failure to exercise its Right of First
Refusal with respect to any particular transaction shall not be deemed a
waiver of its Right of First Refusal with respect to any other
transaction.
49 The parties agree that, as of the Commencement Date of this Lease, this
Lease shall supersede and entirely replace that certain lease dated as
of May 18, 1994 by and between Lessor and Lessee (the "Original Lease")
and the Original Lease shall be null, void and of no further force and
effect.
50 Lessee hereby acknowledges that, in connection with that certain letter
agreement regarding the walkway easement between the Premises and the
building located at 000 Xxxxxxx Xxxxxx (the "Walkway Lease") dated as of
June 24, 1994 by and between Lessor and Xxxxxxxxx XxXxxx ("XxXxxx"),
Lessor leased to XxXxxx during the term of the Walkway Lease three (3)
parking spaces adjacent to the property located at 000/000 Xxxxxx
Xxxxxx, and that such spaces are not included under this Lease. Lessee
shall have the right to use, throughout the term of this Lease, (a) the
balance of the parking spaces located on the property known as 000
Xxxxxx Xxxxxx and (b) the walkway easement described in the Walkway
Lease. Lessor shall keep the Walkway Lease in effect throughout the
term of this Lease (including any extensions).
