Exhibit 10.8
FIRST AMENDMENT
TO ROOFTOP LICENSE AGREEMENT
This First Amendment to Rooftop License Agreement ("Amendment") is made and
entered into as of the 11th Day of March, 2003, by and between XXXXXX XXXXX
LAKESIDE, LLC, an Arizona limited liability company ("Lessor"), and MEDAIRE,
INCORPORATED, an Arizona corporation ("Lessee").
RECITALS
A. Lessor, as the licensor thereunder, and Lessee, as the licensee
thereunder, executed that Rooftop License Agreement dated March 7, 2002
("Agreement"), with respect to certain office space in Xxxxxx Xxxxx Lakeside
West, Phase 1, 80 East Rio Salado Parkway, Tempe, Arizona ("Building").
X. Xxxxxx and Lessee desire to amend the Agreement as hereafter provided to
modify the type of equipment Lessee is permitted to install on the roof of the
Building.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants herein set forth,
the receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee
agree as follows:
1. Defined Terms. All capitalized terms used in this Amendment that are not
defined herein shall have the same meaning as set forth in the Agreement.
2. Amendment of Provisions in Agreement. Lessor and Lessee hereby agree to
modify the Agreement as follows:
2.1 Section 2.1.1 of the Agreement is hereby deleted and replaced with
the following:
"2.1.1. to install, operate, maintain, and use the following (each as
reasonably approved by Lessor as to design, performance standards, and
in method of installation): (i) one (1) satellite antenna dish not
greater than 18 inches in diameter mounted on a single tower not to
exceed 6 inches in diameter and no higher than the penthouse screening
wall of the Building, which shall be installed on the rooftop platform
of the Building at the location more specifically shown on the roof
plan attached hereto as Exhibit A, and (ii) one (1) square antenna not
to exceed 12 inches x 12 inches and three inches deep, which shall be
located o n the southwest corner oft he penthouse structure on the
roof of the Building at the location more specifically shown on the
roof plan attached hereto as Exhibit A, and shall be installed no
higher than 18 inches above the penthouse screening wall
of the Building, (individually and collectively referred to hereafter
as the "Antenna").; the location for each of the foregoing Antenna as
shown on Exhibit A shall be referred to in this Agreement as the
"Licensed Area; ... "
2.2 Section 2.1.2 of the Agreement is hereby deleted and replaced with
the following:
"2.1.2 for the installation of cabling and other electrical wiring not
to exceed 1 % inches in diameter ("Conduit"), in such risers and
pathways in the Building (collectively, "Raceways"), as are designated
by Lessor for the purpose of connecting the Antenna to certain
equipment of Lessee in the Premises; ..."
2.3 Exhibit A referred to in the Agreement shall be Exhibit A attached
to this Amendment.
2.4 Section 2.2.2 of the Agreement is hereby deleted and replaced with
the following:
"2.2.2 Except as set forth in Section 2.1.1(ii) above, the Antenna may
not protrude above a height equal to the highest point of the Building
structure."
3. Agreement Remains in Effect. Except as specifically modified in this
Amendment, all of the terms and provisions of the Agreement shall remain
unmodified and in full force and effect.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the
day and year first set forth above.
LESSEE: LESSOR:
MEDAIRE, INCORPORATED, XXXXXX XXXXX LAKESIDE, LLC,
an Arizona corporation, an Arizona limited liability company
BY: SunCor Development Company, an
Arizona Corporation
/s/ Xxxxx Xxxxxxxxxx /s/ Xxxxxxxx Xxxxx
----------------------------------------
Xxxxxxx X. Xxxxx, Vice President
EXHBIT A
LICENSE AREA
ROOF PLAN OF 00 XXXX XXX XXXXXX XXXXXXX
[GRAPHIC]
EXHIBIT "F"
ROOFTOP LICENSE AGREEMENT
THS ROOFTOP LICENSE AGREEMENT ( "Agreement") is made and entered into as of
the 7th day of March, 2002, by and between XXXXXX XXXXX LAKESIDE, LLC, an
Arizona limited liability company ("Lessor"), and MEDAIRE, INCORPORATED, an
Arizona Corporation ("Lessee"). Lessor is the licensor and Lessee is the
licensee hereunder, but are referred to as "Lessor" and "Lessee", respectively,
solely for ease of reference.
1. Recitals.
Lessor and Lessee have entered into that certain Office Lease dated as of the
date of this Agreement ("Lease") for premises described therein ("Premises")
located in that certain office building commonly known as Xxxxxx Xxxxx Lakeside
West, Phase I, 00 X. Xxx Xxxxxx Xxxxxxx, Xxxxx, Xxxxxxx ("Building").
Capitalized terms not defined herein shall have the same meaning set forth in
the Lease.
2. License to Install Equipment.
2.1 Grant. Lessor hereby grants to Lessee, subject to the covenants,
conditions, and restrictions hereafter set forth, a non-exclusive license
("Equipment License"), during the Term of the Lease and any permitted extension
thereof for the following purposes:
2.1.1 to install, operate, maintain and use either (i) two (2)
satellite antenna dishes not greater than 18 inches each in diameter mounted on
a single tower not to exceed 6 inches in diameter and no higher than the
penthouse screening wall of the Building, or (ii) one (1) antenna not to exceed
6 inches in diameter and no higher than the penthouse screening wall of the
Building, each as reasonably approved by Lessor (individually and collectively,
the "Antenna"), on the rooftop platform of the Building at the location more
specifically shown on the roof plan attached hereto as Exhibit A ("License
Area");
2.1.2 for the installation of cabling and other electrical wiring not
to exceed _ inches in diameter ("Conduit"), in such risers and pathways in the
Building (collectively, "Raceways") as are designated by Lessor for the purpose
of connecting the Antenna to certain equipment of Lessee in the Premises;
2.1.3 for the use of such stairwells and roof access passageways in
the Building and on the roof as may be designated by Lessor from time to time
for the purpose of access to and from the Antenna; and
2.1.4 for access to the Conduit for purposes of maintenance and
repair.
Exhibit F - Page 1
The Equipment License is contingent upon the payment by Lessee of all rent and
other charges due and payable under the terms of the Lease and this Agreement,
and compliance by Lessee with all of the other terms and provisions hereof If
Lessor has the right to and does terminate the Lease and/or Lessee's right of
possession thereunder with respect to the Premises, the Equipment License shall
also thereupon terminate. The Equipment License shall terminate in any event
upon expiration of the Lease Term. Lessee may terminate this Agreement at any
time effective thirty (30) days after written notice of such election is given
to Lessor. If the Equipment License is terminated for any of the foregoing
reasons, Lessee's rights to use the roof for the purposes provided under this
Agreement shall be of no further force and effect.
2.2 Permitted Use. The scope and permitted use of the Equipment License is
limited to permitting Lessee, at its sole expense, to install, operate, use,
maintain and remove the Antenna, for the direct benefit of Lessee in the conduct
of its business operations in the Premises for the use specifically permitted in
the Lease, and not for any resale to, or for the use by, any customer, vendor,
or other service provider occupying any portion of, or maintaining equipment in,
the Premises, or for providing service to any other tenant of the Building. In
addition to the foregoing, Lessee, at its sole expense, when exercising the
rights herein granted, including with respect to the installation, operation,
use and removal of the Antenna, shall at all times comply with the following
requirements:
2.2.1 Installation must meet all federal, state, and local licensing
requirements and must be in compliance with all building, fire, and other
applicable codes, including any required conditional use permit, and any Federal
Aviation Administration approvals.
2.2.2 The Antenna may not protrude above a height equal to the highest
point of the Building structure.
2.2.3 Absolutely no roof penetrations shall be allowed, and Lessee,
its employees, agents, and contractors, shall only use the existing access
points to the Raceways on the roof of the Building.
2.2.4 The Antenna shall not interfere in any way with the Building's
existing engineering, window washing, or other maintenance functions.
2.2.5 The Antenna must be properly secured and installed so as not to
be affected by high winds or other elements.
2.2.6 The Antenna must be grounded in a manner acceptable to Lessor.
2.2.7 The color and aesthetics of the Antenna shall be approved by
Lessor, and must in any event satisfy the design guidelines and other
restrictions governing the Xxxxxx Xxxxx Lakeside project.
Exhibit F - Page 2
2.2.8 The weight of the Antenna shall not exceed the load limit of the
roof platform, after taking into account the designed ceiling load limit of the
floor immediately below the roof
2.2.9 In no event shall the Antenna or any Conduit affect any of the
mechanical, electrical, life-safety, structural, or other systems of the
Building.
2.2.10 All Conduit shall be separately labeled and encased in a manner
approved by Lessor.
2.2.11 If Lessee does not use the Antenna in the operation of its
business for a period of more than thirty (30) days, the Equipment License shall
thereupon terminate and Section 8 below shall apply; provided that the foregoing
shall not apply to a passive back-up system for Lessee's business.
2.3 Installation. Without limiting the generality of the terms of Section
2.2 hereof the installation of the Antenna, and any subsequent improvements or
modifications to the License Area shall be deemed an improvement subject to all.
of the terms and conditions of Sections 7.2 (Construction Obligations), 10
(Alterations), and 11 (Mechanic's Liens) of the Lease, which provisions are
deemed incorporated herein by this reference.
2.4 Access. Lessee's right of access to the roof of the Building and any
Raceways in the Building is expressly subject to Lessee providing prior written
notice to Lessor of such request (provided that if an emergency exists, such
request may be delivered verbally to Lessor's Building engineer), and Lessor
reserves the right to require that any persons accessing the roof and the
Raceways must be accompanied by a Building engineer, and the hourly charge of
the Building engineer (without xxxx-up or profit) shall be payable by Lessee.
Absent an emergency, any such access shall be limited to the normal business
hours of the Building as set forth in Section 8.1 of the Lease. Lessee, its
agents, employees, and contractors, shall comply with all Building rules and
regulations adopted from time to time by Lessor with respect to access to the
roof and/or the Raceways.
2.5 Costs and Utility Charges.
2.5.1 No utility hook-ups or facilities shall be permitted on the
roof, and all utility connections and feeds shall be located within the Premises
or such other location on the floor where the Premises are located as may be
designated and approved by Lessor. Unless Lessee is separately metered for
electricity (and Lessor shall have the right to require Lessee to install a
separate meter, at Lessee's expense), Lessor shall have the right to estimate
Lessee's electrical consumption with respect to the Antenna, based on the kwph
rate charged to Lessor, and shall xxxx Lessee monthly for such utility usage.
Lessee shall pay to Lessor all utility charges attributable to the operation of
the Antenna, as additional rent under the Lease, within fifteen (15) days after
delivery of an invoice for such periodic charges.
Exhibit F - Page 3
2.5.2 Lessee shall be solely responsible for paying all costs,
expenses and taxes incurred in connection with the ownership, installation,
operation, maintenance, use, and removal of the Antenna, the Conduit, and the
appurtenant equipment located in or on the Building.
2.5.3 Any sums payable to Lessor under this Agreement that are not
paid when due shall bear interest on the unpaid amount, until paid, at the rate
set forth in Section 29.6 of the Lease.
2.5.4 Lessee acknowledges that interruptions in electrical power and
other Building services may occur in the operation of the Building, and such
interruption in service may adversely affect the operation of the Antenna.
Lessee acknowledges and agrees that Lessor shall not be liable or responsible to
Lessee, at law or in equity, under any legal theory, for any loss or liability
with respect to the operation, use or ownership of the Antenna resulting from
any interruption of utilities, and that all of the provisions of Sections 8.2
and 8.4.3 of the Lease shall govern and limit Lessee's rights under this
Agreement and its use of the Antenna.
2.6 Relocation. Lessor shall have the right, at its option and from time to
time, upon not less than thirty (30) days' prior notice to Lessee, to relocate
the Antenna to another location on the roof platform of the Building adequate,
in Lessor's reasonable determination, to afford reasonably equivalent service by
Lessee. Lessor shall pay the reasonable costs of relocation actually incurred by
Lessee in connection therewith subject to adequate substantiation by Lessee of
such costs.
3. Interference. Lessee agrees that at all times during the term of the
Equipment License, the Antenna shall be operated in such a manner that no
element or component thereof interferes with any radio frequency transmission or
reception equipment located in or on the Building or any other existing or
future buildings or other improvements in the Xxxxxx Xxxxx Lakeside project;
provided that such equipment is in operation as of the date Lessee first
installs the Antenna and is operating within the technical parameters specified
by its manufacturer and any governmental license. If Lessee should cause such
measurable interference, Lessee shall, at its expense, eliminate it within five
(5) days after notice thereof (and the grace periods in Section 6 below will not
apply with respect thereto, and Lessee shall in any event indemnify, defend, and
hold harmless Lessor with respect to any claims, liabilities, losses, expenses,
or fees, including reasonable attorneys' fees, incurred by Lessor relating to,
or arising from, such interference from the point it first occurs). In addition
to the foregoing, Lessee agrees to cooperate with Lessor in adopting (at
Lessee's sole cost and expense) commercially reasonable protocols and site
modifications to limit any interference to or from other equipment or
communications facilities that Lessor wishes to permit to be installed. Lessor
shall have no liability to Lessee for any interference of any kind to the
Antenna and/or the use and operation thereof, including, without limitation,
interference caused by (i) any other equipment located in, on or around the
Building any other existing or future buildings or other improvements in the
Xxxxxx Xxxxx Lakeside project, (ii) wind, hail, rain, lightning, or other bad
weather or acts of God, (iii) the acts of other tenants or other third parties,
or (iv) vibration or other movement or disturbance.
Exhibit F - Page 4
4. Maintenance and Repair. Lessee covenants that the installation, operation,
maintenance, and use of the Antenna shall be at Lessee's sole cost and risk,
including the cost of any damage to the Building (caused thereby). Lessee shall,
at its sole cost and expense, maintain the Antenna in good and safe condition,
shall keep the License Area in good and water-tight condition, and shall
immediately notify Lessor of any damage to the roof membrane, roof platform,
and/or any portion of the Building, including any structural elements thereof
caused by Lessee or any employee, contractor or agent of Lessee, or otherwise
related to the placement of the Antenna on the Building. If Lessor determines
that the Antenna is not being maintained in the condition required by this
Agreement as herein provided, and without limiting Lessor's other rights and
remedies under this Agreement, Lessor shall have the right, if Lessee fails to
remedy the condition(s) identified by Lessor to the reasonable satisfaction of
Lessor within ten (10) days of receipt (or evidence of attempted delivery) of
such notice, to take such action, at Lessee's expense, as Lessor deems necessary
to restore the Antenna and/or the roof to the condition required by this
Agreement. Lessee shall pay to Lessor, on demand, Lessor's reasonable costs and
expenses incurred pursuant to this paragraph.
5. Ownership, Insurance, Release and Indemnity. The Antenna, the Conduit, and
related cabling, wiring, and equipment shall remain the property of Lessee
notwithstanding the fact that the same may be affixed or attached to the
Building or a portion thereof Lessee shall bear the risk of loss with respect to
the Antenna, the Conduit, and related cabling, wiring, and equipment. Lessee
shall cause the insurance policies to be maintained by Lessee pursuant to the
Lease to include the Antenna, the Conduit, and all related cabling, wiring,
equipment and materials as part of Lessee's insured property. Lessee
specifically agrees that the indemnification (Section 13), release (Section
14.1.2) and waiver of subrogation (Section 14.3) provisions of the Lease are
deemed to include any claims, losses, liability and causes of actions arising
from the installation, operation, use, maintenance or removal of the Antenna,
the Conduit, and related cabling, wiring, and equipment.
6. Default.
6.1 Default by Lessee. Lessor shall have the right to terminate this
Agreement and the Equipment License, and to pursue all rights and remedies
available at law or in equity, following any breach or default by Lessee under
this Agreement (i) with respect to a monetary default, if the same is not cured
within the same period provided in the Lease for monetary defaults by Lessee,
and (ii) with respect to non-monetary defaults, except for the default to be
cured within five (5) days as provided in Section 3 above, if Lessee does not
promptly commence the cure thereof following written notice and the same is not
cured within thirty (30) days of receipt (or evidence of attempted delivery) of
written notice by Lessee of said default; provided, however, the occurrence of
any interruption in, or disconnection of any telecommunications services of any
tenant in the Building caused by the act or omission of Lessee or any employee,
contractor or agent of Lessee while performing any work in or about the Antenna
or any of the Raceways, which is not corrected within 24 hours after such
occurrence,
Exhibit F - Page 5
shall be the basis for the immediate termination by Lessor of this Agreement and
the Equipment License granted herein.
6.2 Default by Lessor. Lessee may pursue all rights and remedies available
at law or in equity following any breach or default by Lessor under this
Agreement if Lessor does not cure the same within thirty (30) days after receipt
(or evidence of attempted delivery) of written notice by Lessee of said default,
or such additional period of time as may be reasonably necessary under the
circumstance for Lessor to diligently cure such default. In any event, Lessor's
liability under this Agreement shall be limited in the same manner and to the
same extent as set forth in Section 30.4 of the Lease.
7. Casualty. No casualty affecting the use of the License Area, or any damage
to, or loss of the Antenna, the Conduit, and related cable, wiring, and
equipment resulting from any casualty, shall entitle Lessee to any claim or
right to terminate the Lease, or serve as a basis for any claim of constructive
eviction. Lessor shall have no obligation to restore or replace the Antenna, the
Conduit, and related cable, wiring, and equipment following any casualty to the
Building, and Lessor's sole obligation following any casualty shall be to
restore the License Area consistent with, and according to, such a timetable as
Lessor otherwise adopts for repairs to and restoration of the Building following
such a casualty.
8. Removal Upon Termination. Lessee shall remove the Antenna, the Conduit, and
all cabling, wiring and any related facilities, and return the Building to the
condition in which it existed prior to the installation of the Antenna, at its
sole cost and expense, prior to the expiration or any termination of this
Agreement. Lessee's obligation hereunder shall survive the termination of this
Agreement and the Lease.
9. Personal Right. The rights granted to Lessee under this Agreement are
personal to the named Lessee under the Lease in connection with the occupancy of
the Premises, and shall not be assignable or transferable to any other person
(including any assignee or subtenant) claiming by or through Lessee, without the
prior written consent of Lessor, except for an assignee or subtenant permitted
by, or approved by Lessor in accordance with, Section 20 of the Lease.
10. Notices. Any and all notices given or required under the terms of this
Agreement shall be given in the manner provided in the Lease, and shall be
deemed effective as of the date therein provided.
11. Disclaimer of Liability. Notwithstanding any other provision in this
Agreement, Lessee agrees that the installation, operation, existence, use,
removal, maintenance, repair, and/or replacement of the Antenna, the Conduit,
and all cabling, wiring, and related facilities shall be at Lessee's sole cost
and risk. Lessee hereby waives and releases Lessor and its members, and the
respective past or present employees, directors, and officers thereof from and
against, all claims for damage to, or loss of any property or injury, illness,
or death of or to any person in, upon, or about the Building or the Xxxxxx Xxxxx
Lakeside project arising from the installation, operation, existence, use,
removal, maintenance, repair, and/or replacement of, or access to, any of the
Exhibit F - Page 6
Antenna, the Conduit, or any cabling, wiring, or related facilities arising or
caused in any manner (including, without limitation, as a result of the act,
omission, or active or passive negligence of Lessor or its members, or the
respective past or present employees, directors, or officers thereof), other
than by reason (and to the extent) of the gross negligence or willful act of
Lessor, its employees, agents, or contractors. In addition, Lessor's approval of
any plans or specifications under this Agreement with respect to the Antenna,
the Conduit, and/or any cabling, wiring, or related facilities, shall not
constitute any representation or warranty of any kind by Lessor that such plans
and specifications are in compliance with applicable laws and regulations,
and/or will prevent interference with the operation of similar facilities by
other tenants.
12. Miscellaneous.
12.1 Lessee acknowledges and agrees that the rights granted it under
this Agreement are contract rights and not an estate or interest in land or real
property. Lessee shall not record or file this Agreement in any public records
(including, without limitation, recording a memorandum of this Agreement).
12.2 In no event will either party be responsible or liable to the
other for any consequential or punitive damages arising from a default or breach
of its obligations under this Agreement.
12.3 Failure by a party to enforce its rights under this Agreement
shall not be deemed a waiver of such rights or any other rights, nor shall the
waiver by either party of a breach of any provision of this Agreement be deemed
to be a waiver of any subsequent breach of the same or any other provision of
this Agreement.
12.4 This Agreement, the exhibits attached hereto, and the provisions
of the Lease incorporated herein by reference embody the entire agreement
between the parties regarding the subject matter hereof and supersede any and
all prior negotiations, expressions of intent, representations, or agreements
between the parties hereto, and accordingly there are no oral or written
agreements existing between the parties regarding the subject matter hereof as
of the date hereof which are not expressly set forth herein and covered hereby.
This Agreement may not be amended except by a written instrument duly executed
by the parties hereto.
12.5 If any provision of this Agreement is determined by a court of
competent jurisdiction to be unenforceable, the remaining provisions. of this
Agreement shall remain in full force and effect, and such unenforceable
provision shall be deemed modified so as to comply with law while maintaining,
to the maximum extent possible, the original intent of the provision.
12.6 This Agreement shall be governed by, and interpreted in
accordance with, the laws of Arizona, and the venue for any legal proceedings
shall be Maricopa County, Arizona.
12.7 Time is of the essence with respect to this Agreement.
Exhibit F - Page 7
12.8 If either party resorts to judicial proceedings to enforce any
right under this Agreement or to obtain relief for any default by the other
party, the party prevailing in such proceeding shall be entitled to recover from
the non-prevailing party the cost thereof, including reasonable attorneys' fees
(as determined by the Court).
IN WITNESS WHEREOF, the parties have entered into this Agreement as of the
day and year first hereinabove written.
"LESSOR"
XXXXXX XXXXX LAKESIDE, LLC, an Arizona
limited liability company
BY: SunCor Development Company, an
Arizona corporation, authorized
member
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
----------------------------------
Title: Vice-President
---------------------------------
"LESSEE"
MEDAIRE, INCORPORATED, an Arizona
corporation
Name: /s/ Xxxxx Xxxxxxxxxx
----------------------------------
Title: Vice-President
---------------------------------
Exhibit F - Page 8
ADDENDUM TO OFFICE LEASE
FOR
XXXXXX XXXXX LAKESIDE, LLC
PHASE I
THIS ADDENDUM shall supplement and modify the Office Lease between Xxxxxx
Xxxxx Lakeside, LLC, as Lessor, and MEDAIRE, INCORPORATED, an Arizona
corporation, as Lessee:
A. The following shall be added as Section 1.5 of the Lease:
1.5 First Right to Lease Certain Space on 6`h Floor. During the Lease Term,
Lessee shall have the first right to lease certain space on 6`h floor of the
Building and designated "option space" on Exhibit A attached hereto containing
approximately 9,076 square feet of Rentable Area (hereafter referred to as the
"Option Space"), but Lessee shall have such right only to the extent
specifically provided for in this Section:
1.5.1 After the date of this Lease and until Lessee's rights hereunder
expire as set forth below, Lessor shall not lease any or all of the Option Space
unless it has first signed a non-binding letter of intent with a prospective
tenant ("Offer") and first complies with the following provisions:
1.5.1.1 Upon receipt of an Offer, then Lessor shall, prior to
negotiating a lease for the Option Space covered by the Offer, first submit a
written notice to Lessee that Lessor intends to proceed with negotiations, which
notice shall specify the Rentable Area of such portion of the Option Space,
provided that the Rentable Area shall be designated by Lessor utilizing a
reasonable load factor and other considerations used by Lessor, pursuant to
Section 1.2, to establish the Rentable Area of the original Premises.
1.5.1.2 Upon receipt of such notice from Lessor, Lessee shall
have five (5) business days thereafter ("Acceptance Period") to provide written
notice to Lessor that Lessee elects to incorporate such portion of the Option
Space into the Premises ("Lessee's Acceptance of Option Space"), in which event
Lessor and Lessee shall be bound by the election of Lessee to include the Option
Space within the Premises, and the Option Space shall be subject to all the
terms and conditions of this Lease, including the Base Rental per square foot
set forth in the Basic Lease Information.
1.5.1.3 The foregoing notwithstanding, this Section shall
constitute a one time opportunity for Lessee with respect to each portion of the
Option Space covered by an Offer. For example, if the first Offer covers 1,000
square feet of Rentable Area and Lessee fails
Addendum - Page 1
to deliver Lessee's Acceptance of Option Space to Lessor within the Acceptance
Period, Lessor shall thereafter be entitled to lease all or a portion of such
1,000 square feet of the Option Space to the prospective tenant referred to in
the Offer. However, if Lessor does not thereafter enter into a binding lease
pursuant to such Offer, then such 1,000 square feet will again be part of the
Option Space and if a new Offer is received from another tenant covering such
1,000 square feet, such new Offer will be subject to the rights of Lessee under
this Section until an Offer covering all or each portion of the Option Space
results in a binding lease therefore.
1.5.2 Upon Lessor's receipt of Lessee's Acceptance of Option Space
pursuant to Section 1.5.2.2 then: (a) the Base Rental for the Option Space
covered by Lessee's Acceptance of Option Space shall be calculated based on the
Rentable Area thereof specified in Lessor's notice to Lessee pursuant to Section
1.5.1.1, and the applicable rent per square foot per year of Rentable Area as
set forth in the Basic Lease Information for the Premises, (b) the tenant
improvements to be installed by Lessor for the Option Space shall be constructed
in accordance with Exhibit C attached hereto, provided that (i) the amount per
square foot set forth in the Basic lease Information for Tenant Improvement
Allowance shall be multiplied by the usable area of the Option Space designated
by Lessor in its notice given to Lessee pursuant to Section 1.5.1.1 and such
tenant improvements shall be installed pursuant to a construction schedule
determined by Lessor and Lessee acting reasonably and in good faith, and (c)
Lessee shall be obligated to pay Base Rental on such Option Space within fifteen
(15) days after Lessor substantially completes such. tenant improvements and
tenders possession of such Option Space to Lessee, or when Lessee opens for
business in the Option Space, whichever is first to occur.
1.5.3 If Lessee's Acceptance of Option Space is properly delivered to
Lessor in accordance with this Section 1.5, then Lessor and Lessee shall, acting
reasonably and in good faith, within fifteen (15) days thereafter, execute and
deliver an amendment to this Lease which makes the Option Space covered by the
Offer part of the Premises, incorporates the Base Rental for such Option Space,
and incorporates other applicable terms for the Option Space, and Lessor's
construction schedule established as herein provided.
1.5.4 It Lessee's Acceptance of Option Space is not properly and
timely delivered after receipt of Lessor's notice pursuant to Sections 1.5.1.1,
Lessee shall thereafter have no further rights to any of the Option Space
described in the Offer if a binding lease is executed thereafter pursuant to
such Offer. Otherwise, the second sentence of Section 1.5.1.3 shall apply with
respect thereto.
1.5.5 The foregoing notwithstanding, (a) Lessee's rights provided for
in this Section shall become null and void if Lessee is in default under this
Lease and applicable grace periods set forth in Article 29 have expired, and (b)
all rights under this Section shall terminate upon the first to occur of (i) the
expiration or earlier termination of this Lease, or (ii) Lessor's election to
re-enter the Premises after Lessee's default as provided in Article 29.
Addendum - Page 2
B. The portion of the Basic Lease Information entitled "TERM" is hereby amended
to add the following below "Termination Date":
Options: two (2) option periods of five (5) years each.
C. The portion of the Basic Lease Information entitled "PARKING SPACES AND
PARKING RENTAL" is hereby amended by deleting each reference therein to "Lease
Term" and replacing the same with "Initial Term". In addition, during each
Renewal Option period which Lessee may elect to exercise pursuant to Section
2.1.2, the rental to be paid for the Parking Spaces to which Lessee is entitled
under this portion of the Lease (10 executive parking spaces, and 65 unreserved
parking spaces) shall be equal to 90% of the rent being offered to prospective
tenants or customers, as the case may be, by the respective Parking Facility
Owner at the time Lessee exercises the Renewal Option pursuant to Section 2.1.2,
and said rental rate so established for each type of Parking Space shall remain
fixed throughout the Renewal Option period, unless adjusted in the same manner
for the second Renewal Option period, if exercised by Lessee.
D. Section 2.1 of the Lease is hereby deleted and replaced with the following:
2.1 Lease Term.
2.1.1 Initial Term. Except as provided herein, the initial term of this
Lease shall be for the period set forth in the Basic Lease Information from the.
Commencement Date to the Termination Date ("Initial Term").
2.1.2 Extension of Initial Term. Lessee shall have the right and option to
extend the Initial Term of this Lease and the Termination Date for the option
periods set forth in the Basic Lease Information (each referred to herein as a
"Renewal Option") upon all of the terms, covenants, and conditions set forth in
this Lease, except that Base Rental and the Expense Stop shall be established as
set forth in Section 3.6 below. Each Renewal Option may be exercised only if (i)
Lessee expressly and unconditionally exercises such option by providing written
notice thereof to Lessor no less than six (6) months and no more than nine (9)
months prior to the expiration of the Initial Term, and (ii) Lessee is not in
default under this Lease at the time of the exercise of the option rights set
forth herein and/or at the time a Renewal Option period is to commence. If
Lessee does not satisfy the requirements of subsections (i) and (ii), the option
rights set forth in this Section shall automatically be deemed waived.
2.1.3 "Lease Term" Defined For purposes of this Lease, Lease Term shall
refer to the Initial Term, as may be extended pursuant to Section 2.1.2.
E. The following shall be added as Section 3.6 of the Lease:
to the sale of any real property for and/or the development of the P-1
Parking Structure and/or the Underground Parking Facilities, Lessor shall
provide notice to any prospective Parking Facility Owner of the terms and
conditions of this Lease.
3.6 Determination of Base Rental for Renewal Options. If Lessee properly
exercises its right with respect to a Renewal Option as provided in Section
2.1.2, then the Base Rental due and payable for the Premises during the Renewal
Option period shall be the Fair Market Rental Rate per rentable square foot
determined as hereafter provided:
3.6.1 Within forty-five (45) days after Lessee timely exercises its option
rights as herein provided, Lessor shall submit to Lessee in writing Lessor's
proposed base rental and expense stop for the Premises, and any economic
benefits Lessor may elect to provide to Lessee, in Lessor's sole discretion,
such as a Tenant Improvement Allowance to refurbish or upgrade the Premises
("Lessor's Economic Terms for the Premises").
3.6.2 If Lessee does not submit its written objection to Lessor's Economic
Terms for the Premises within thirty (30) days after receipt thereof then the
Base Rental and Expense Stop included therein shall constitute the "Fair Market
Rental Rate" for purposes of this Section, provided that all other terms
constituting Lessor's Economic Terms for the Premises shall also apply. If
Lessee delivers its written objection to Lessor's Economic Terms for the
Premises within said 30-day period, then the Fair Market Rental Rate shall be
established pursuant to Section 3.5.3 below, provided that Lessor's Economic
Terms for the Premises (excluding Lessor's proposed base rental) shall be used
to determine the same as therein provided.
3.6.3 If Lessor and Lessee cannot agree upon the Fair Market Rental Rate
pursuant to Section 3.5.2 above within the time period set forth therein for
Lessee's acceptance or rejection of Lessor's proposed Fair Market Rental Rate
("Rent Determination Period"), then the Fair Market Rental Rate shall be
established as follows:
3.6.3.1 Within fifteen (15) days after the expiration of the Rent
Determination Period, Lessor and Lessee shall each appoint a qualified,
independent MAI appraiser of its choice with at least five (5) years of
experience in appraising prevailing market rates for properties similar to the
Building ("Qualified Appraiser"). The two appraisers selected by Lessor and
Lessee shall then appoint a third Qualified Appraiser, and the third Qualified
Appraiser shall constitute the "Appraiser" for purposes of this Section. If
either party fails to appoint a Qualified Appraiser within said 15-day period,
then the Qualified Appraiser timely appointed by the other party shall
constitute the "Appraiser" for purposes of this Section.
3.6.3.2 Lessor and Lessee shall direct the Appraiser to make an
independent determination of the prevailing market rate base rental and expense
stop for the Premises based on Lessor's Economic Terms for the Premises, and
based on the quality of the space, existing improvements and amenities, and the
then prevailing market rate per square foot of rentable area and expense stop
for office space comparable to the Premises and the Building in quality,
appearance, and design in the Phoenix metropolitan area, and such other
standards as may be customarily utilized by MAI appraisers. The Appraiser shall
be required to submit its determination within forty-five (45) days after the
Rent Determination Period, and the same shall constitute the Fair Market Rental
Rate to be used for purposes of this Section.
Addendum - Page 4
3.6.3.3 If the Fair Market Rental Rate established pursuant to this
Section 3.5.3 is equal to or greater than the base rental per square foot and
expense stop offered by Lessor in Lessor's Economic Terms for the Premises, then
Lessee shall bear the full expense of the Appraiser. If the Fair Market Rental
Rate determined pursuant to this Section 3.5.3 is less than the base rental and
expense stop so established by Lessor, then Lessor shall bear the full expense
of the Appraiser.
3.6.4 When the Fair Market Rental Rate is established as set forth above,
Lessor and Lessee shall, acting reasonably and in good faith, within thirty (30)
days thereafter, execute and deliver an amendment to this Lease, which
acknowledges the extension of the Lease Term, establishes the Base Rental using
the Fair Market Rental Rate, and establishes the rental for the Parking Spaces
allocated to Lessee as provided in the Basic Lease Information.
3.6.5 Any other provision in this Section notwithstanding, in no event
shall the Base Rental to be paid for the Premises during any Renewal Option be
less than the Base Rental applicable to the Initial Term or any preceding
Renewal Option, as the case may be, after adjustments for changes in the Expense
Stop, if any.
X. Xxxxxx acknowledges that Lessee desires to install two satellite dishes on
the roof of the Premises for benefit of its business operations in the Premises,
and for no other purpose. In connection therewith, Lessee and Lessor agree to
execute, simultaneously with the execution of this Lease, a Rooftop License
Agreement in the form attached to this Lease as Exhibit F.
"LESSEE" "LESSOR"
MEDAIRE, INCORPORATED, XXXXXX XXXXX LAKESIDE, LLC,
an Arizona corporation an Arizona limited liability company
BY: SunCor Development Company, an
Arizona corporation, authorized
member
Addendum - Page 5
