EXHIBIT 10.62
SECOND AMENDMENT TO
LEASE
This Second Amendment to Lease
(“Amendment”), dated for reference purposes only as
April 28, 2006, is made and entered into by and between
MCMORGAN INSTITUTIONAL REAL ESTATE FUND I, LLC, a Delaware limited
liability company (as successor-in-interest to Landhold, Inc.)
(“Landlord”), and HEALTH NET, INC., a Delaware
corporation (“Tenant”).
RECITALS
A. Landlord’s
predecessor-in-interest and Tenant entered into that certain
Standard Lease Agreement (Office) dated March 5, 2001
(“Original Lease”), for certain Premises located at
11971 Foundation Place, Rancho Cordova, California, which Original
Lease was amended pursuant to that certain amendment dated
November 22, 2002 (“First Amendment”). For
purposes of this Amendment, the term “Lease” shall mean
the Original Lease, as amended by the First Amendment. The terms
used and not otherwise defined herein shall have the same meanings
and definitions as set forth in the Lease.
B. Tenant has previously installed,
and is currently operating and using, a repeater system on a
portion of the roof and other areas of the Building
(“Existing Repeater Facilities”).
C. In addition to the Existing
Repeater Facilities, Tenant desires to use certain portions of the
roof of the Building for the installation, operation and use of
four (4) security cameras (“Rooftop Security
Cameras”).
D. Landlord is willing to grant to
Tenant, and Tenant is willing to accept from Landlord, a
non-exclusive license for the continuing use by Tenant of the roof
and certain other areas of the Building for the operation and use
of the Existing Repeater Facilities and for use by Tenant of
portions of the roof and certain other areas of the Building for
the installation, operation and use of the Rooftop Security
Cameras, all on the terms and conditions set forth
below.
NOW, THEREFORE, for valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant hereby agree as
follows:
1. Non-Exclusive License .
Subject to the terms and conditions set forth in this Amendment
below, Landlord hereby grants to Tenant a non-exclusive license
(“License”):
(i) for the use of certain portions
of the roof of the Building, which portions are shown on Exhibit
A attached hereto, for the installation, operation and use
(including maintenance and repair) of the Existing Repeater
Facilities and the Rooftop Security Cameras, and associated
installations, all as more particularly described in Exhibit
B (collectively, the “Tenant’s Rooftop
Installations”), and for the installation of cabling, conduit
and other electrical wiring (“Conduit”) connecting the
Tenant’s Rooftop Installations to certain equipment of Tenant
located in the Premises (the Tenant’s Rooftop Installations
and the Conduit are individually and collectively referred to
herein as the “Facilities”);
(ii) for the use of such stairwells
and roof access passageways in the Building and on the roof of the
Building as may be designated by Landlord for the purpose of access
to and from the Tenant’s Rooftop Installations;
and
(iii) for the placement of, and
access to, Conduit in such risers and pathways (collectively,
“Raceways”) and utility rooms in the Building as are
designated by Landlord for such purposes.
The License granted to Tenant
hereunder is non-exclusive. Except as otherwise specifically set
forth in this Amendment, Landlord shall not charge Tenant any rent
or other fees for the License (except that Landlord expressly
reserves the right to charge such rent and/or fees for the License
in the future, upon not less than thirty (30) days prior
written notice to Tenant, and any such rent and fees so charged by
Landlord shall be payable by Tenant hereunder as and when charged
by Landlord). Landlord expressly reserves the right to grant to
itself and other parties, including, without limitation, other
occupants of the Building and third party vendors, the right to
install and operate other equipment and facilities, (including,
without limitation, telecommunications equipment) on the roof of
and within the non-Premises portions of the Building. Tenant agrees
to cooperate with Landlord in adopting (at Tenant’s sole cost
and expense) commercially reasonable procedures to limit any
interference to other equipment or facilities located on the roof
of the Building caused by or attributable to the Facilities and to
enable the full utilization of the roof of the Building by
others.
The License granted to Tenant
hereunder is personal to Health Net, Inc., and may not be assigned
or otherwise transferred by Tenant, in whole or in part, to any
other party. The License shall automatically terminate upon any
assignment of the Lease by Tenant. Notwithstanding the foregoing,
Tenant may, upon prior written notice to Landlord, assign the
License in connection with and as part of an assignment of the
Lease or subletting of the Premises or portion thereof, as
applicable, permitted to be made by Tenant without Landlord’s
consent pursuant to Section 15(a) of the Original Lease, so
long as the proposed transferee agrees in writing to comply with
and be bound by all the terms and conditions hereof and assumes in
full the obligations of Tenant hereunder. No such assignment of the
License shall relieve Tenant of any obligations or liabilities
hereunder.
Tenant acknowledges and agrees that
the License granted to it hereunder is a contract right and not an
estate or interest in land or real property, and Tenant disclaims
and waives any leasehold estate or other possessory interest in the
non-Premises portions of the Building (including, without
limitation, the roof of the Building) that are subject to the
License.
2
2. Term . Unless sooner
terminated pursuant to this Amendment, the License granted to
Tenant hereunder shall be on a month-to-month basis only, and
either party shall have the right to terminate the License at any
time upon thirty (30) days written notice thereof to the other
party. In addition, Landlord shall have the right to immediately
revoke and terminate the License upon any failure by Tenant to
observe or perform the covenants, conditions or provisions of this
Amendment or the Lease to be observed or performed by Tenant where
such failure shall continue for a period of five (5) days
following written notice thereof from Landlord. Unless sooner
terminated hereunder, the License shall automatically terminate
upon the expiration or sooner termination of the Lease.
3. Permitted Uses; Compliance
with Laws and CC&Rs . The installation, operation and use
of the Facilities shall be at Tenant’s sole risk and expense.
Tenant shall only use the Existing Repeater Facilities to receive
radio transmissions for Tenant’s use in the Premises, and for
no other purposes. No person or entity other than Tenant (and,
following a permitted assignment of the License by Tenant pursuant
to the 3rd paragraph of Section 1 above, the applicable
assignee) shall have the right to use or receive transmissions from
the Existing Repeater Facilities. Tenant shall only use the Rooftop
Security Cameras to provide security surveillance of the exterior
areas surrounding the Building, and for no other purposes. Tenant
shall at all times comply with all applicable laws, statutes,
ordinances and governmental rules and regulations relating to the
installation, operation and use of the Facilities, and Tenant shall
be responsible for obtaining and maintaining all governmental
permits and approvals necessary for the lawful installation,
operation and use of the Facilities, all at Tenant’s sole
cost and expense. Landlord makes no representation or warranty to
Tenant of any kind relating to such compliance or the availability
of such permits and approvals.
Tenant acknowledges that the Project
is subject to that certain Declaration of Covenants, Conditions and
Restrictions and Grant of Easements dated July 28, 2000 (as
the same may be amended, the “CC&Rs”), which
CC&Rs, among other things, require the prior written approval
of
