Built-to-suit Lease Agreement

EXHIBIT 10.20



BUILD-TO-SUIT LEASE AGREEMENT

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Landlord: SUNNYVALE PARTNERS LIMITED PARTNERSHIP



Tenant: FIRST DATA MERCHANT SERVICES CORPORATION







MARCH 18, 1997

TABLE OF CONTENT 1. Description.............................................................. 1



2. Term and Occupancy....................................................... 1



3. Rent..................................................................... 2



4. Construction............................................................. 3



5. Use...................................................................... 7



6. Condition of Demised Premises............................................ 8



7. Maintenance and Repairs.................................................. 8



8. Alterations.............................................................. 9



9. Signs.................................................................... 11



10. Services................................................................. 11



11. Compliance with Law...................................................... 12



12. Landlords Title, Authority, and Quiet Enjoyment; Tenants Authority....... 13



13. Subordination............................................................ 13



14. Assignment and Sublease.................................................. 14



15. Lease Extension.......................................................... 15



16. Impositions.............................................................. 16



17. Insurance................................................................ 18



18. Destruction and Restoration.............................................. 20



19. Condemnation............................................................. 22



20. Default by Tenant........................................................ 26



21. Landlord's Remedies...................................................... 27



22. Default by Landlord...................................................... 28



23. Tenant's Remedies........................................................ 28



24. Delivery of Executed Lease............................................... 29





25. Termination.............................................................. 29



26. Notices.................................................................. 29



27. Brokerage................................................................ 30



28. Estoppel................................................................. 30



29. Hazardous Substances..................................................... 30



30. Holdover................................................................. 32



31. Surrender................................................................ 32



32. Liens.................................................................... 33



33. Interest; Late Charge.................................................... 34



34. Inspections.............................................................. 34



35. Transfer of Landlord's Interest.......................................... 34



36. Indemnity................................................................ 35



37. Modification of Lease.................................................... 35



38. Memorandum of Lease...................................................... 36



39. Paragraph Captions....................................................... 36



40. Entire Agreement......................................................... 36



41. Choice of Law and Interpretation......................................... 36



42. Prevailing Party......................................................... 36



43. Exhibits................................................................. 36



44. Guarantee................................................................ 37



45. Independent Covenants.................................................... 37



46. Entry by Landlord........................................................ 37



47. [Deleted by intent of parties.].......................................... 37



48. Survival of Obligations.................................................. 37



49. Lease Subject to Landlord's Acquisition of Demised Premises.............. 38



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50. Americans With Disabilities Act.......................................... 38



51. Reports by Tenant........................................................ 39



52. Option to Purchase....................................................... 39



53. No Third Party Beneficiaries............................................. 41



54. Counterparts............................................................. 41



55. Consents and Approvals................................................... 41



56. Limitation on Damages.................................................... 41



57. Tenant's Property........................................................ 41



Exhibit A - Legal Description Exhibit B - Site Plan Exhibit C - Plans Exhibit C-1 - Construction Schedule Exhibit D - Schedule of Rents Exhibit E - Lease Term Agreement Exhibit F - Memorandum of Lease Exhibit G - Landlord's Development Costs Exhibit H - Permitted Exceptions Exhibit I - Escrow Agreement



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THIS BUILD-TO-SUIT LEASE AGREEMENT (this "Lease") is made as of the 18th day of March, 1997 (the "date hereof") between SUNNYVALE PARTNERS LIMITED PARTNERSHIP, an Illinois limited partnership, having its principal office at c/o Ridge Sunnyvale, Inc., c/o Ridge Capital Corporation, 257 East Main Street, Barrington, Illinois 60010 (hereinafter referred to as "Landlord"), and FIRST DATA MERCHANT SERVICES CORPORATION, having its principal office at 5660 New Northside Drive, Suite 1400, Atlanta, Georgia 30328 (hereinafter referred to as "Tenant").



W I T N E S S E T H:

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Landlord, for and in consideration of the rents, covenants and agreements hereinafter set forth on the part of Tenant to be paid, kept, observed and performed does hereby lease unto Tenant, and Tenant does hereby take subject to the conditions herein expressed, all that parcel of land situated in the City of Sunnyvale, County of Santa Clara, State of California and legally described on Exhibit A attached hereto and made a part hereof (the "Land"), together with all improvements located and to be constructed thereon by Landlord, which are hereinafter called "Landlord's Improvements." Landlord's Improvements and all improvements, machinery, building equipment, fixtures and other property of Landlord, real, personal or mixed (except Tenant's trade fixtures and any other property of Tenant), installed or located thereon, together with all additions, alterations and replacements thereof are collectively referred to herein as the "Improvements." The Land and the Improvements are sometimes hereinafter collectively referred to as the "Demised Premises". The structure located upon and being a part of the Demised Premises which is constructed to be used as a two story office building containing approximately 80,000 "useable square feet" (as defined in Paragraph 4 below) is hereinafter referred to as the "Building".



1. Description. Landlord will cause Landlord's Improvements (including

----------- the Building and other site improvements depicted on the Site Plan attached hereto and made a part hereof as Exhibit B) to be constructed in substantial accordance with the plans and specifications enumerate on Exhibit C (the "Plans"). Landlord agrees that Landlord shall not make any modifications or changes to the Plans without Tenant's prior written consent. Landlord further agrees to make any changes to the Plans requested by Tenant in writing and if the change requested by Tenant increases or decreases the cost of the Demised Premises, the Base Rent provided for herein shall be adjusted in accordance with the provisions of the formula provided on Exhibit D.

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2. Term and Occupancy. A. The term of this Lease shall commence on the

------------------ Construction Completion Date, as provided in Paragraph 4 below (hereinafter referred to as the "Commencement Date"), and shall end on the date which is the last day of the month that includes the twelfth (12th) anniversary of the Commencement Date (hereinafter referred to as the "Expiration Date"), unless the term be extended or earlier terminated as provided herein.



Landlord shall notify Tenant of the anticipated Construction Completion Date. Landlord agrees to notify Tenant promptly from time to time of any changes in the anticipated Construction Completion Date. Tenant shall have the right to enter the Demised Premises during

the approximately ninety (90) day period preceding the Construction Completion Date for the purpose of installing its equipment and Tenant does hereby agree to assume all risk of loss or damage to such equipment, and to indemnify, defend and hold harmless Landlord from and against any loss or damage to such equipment and all liability, loss or damage arising from any injury to the property of Landlord, or its contractors, subcontractors or materialmen, and any death or personal injury to any person or persons arising out of such installation. Landlord agrees to cooperate with Tenant so that Tenant's contractors and tradespeople will be permitted to reasonably perform their work without material interference. Tenant agrees to cooperate with Landlord so that Landlord's contractors and tradespeople will be permitted to reasonably perform their work without material interference.



B. Notwithstanding anything else in this Lease to the contrary, Tenant shall have the right to terminate this Lease as of the end of the eighth (8th) Lease Year (the "Early Termination Date") provided that Tenant shall (a) notify Landlord in writing of its election to terminate at least one (1) year prior to the Early Termination Date, and (b) pay to the Landlord, concurrently with the notification to Landlord hereunder, a termination fee by certified or cashier's check or wire transfer of available funds ("Termination Amount") equal to the discounted present value (using Landlord's financing interest rate) amount needed to reduce the remaining unamortized principal balance due on the indebtedness originally incurred by Landlord to finance the Landlord's Development Costs (as defined in Paragraph 19F) to ___________. If Tenant gives such notice as required hereunder and pays the Termination Amount concurrently therewith, this Lease shall be deemed terminated as to all rights or obligations hereunder (except such rights and obligations as Landlord and Tenant would otherwise have upon normal expiration of the term of this Lease). Any such notice hereunder, not accompanied by the Termination Amount as provided hereinabove, shall be deemed invalid and of no force or effect. Upon Landlord's closing on the permanent loan for the financing of the Landlord's Development Costs, Landlord shall provide to Tenant a copy of the twenty (20) year permanent loan amortization (the "Loan Amortization") which shall include the principal amount that will be due at the end of the eighth (8th) Lease Year.



Tenant shall have the right to pay the Termination Amount to any mortgagee of the Demised Premises or other person with a lien on the Demised Premises or the rents derived therefrom, but Tenant shall have no such obligation to do so unless such obligation is specifically set forth in a non-disturbance or other agreement between Tenant and such mortgagee or other lienholder. Notwithstanding the foregoing, Tenant acknowledges and agrees that any payment to any such mortgagee or other lienholder shall only be effectuated by a two- party or two-payee certified or cashier's check, made payable to both Landlord and any such mortgagee or other lienholder.



3. Rent. The annual base rental ("Base Rent") shall be calculated in

---- accordance with the provisions set forth on the Schedule of Rents attached hereto and made a part hereof as Exhibit D. Base Rent shall be paid monthly, in advance, in equal installments, without offset or deduction by wire transfer in accordance with separate instruction given by Landlord to Tenant, on the Commencement Date and on the first day of each month thereafter during the term hereof; provided however, that if the term of this Lease shall commence on a date other than the first day





of a calendar month or end on a date other than the last day of a calendar month (i) the first and last month's Base Rent shall be prorated based upon the ratio that the number of days in the term within such month bears to the total number of days in such month, and (ii) Base Rent reserved for the calendar month of any scheduled rent escalation shall be equitably adjusted upon due consideration of the number of days in such month falling within the preceding Lease Year (as herein defined) and the number of days in such month falling within the current Lease Year. For purposes of this Lease, the term "Lease Year" shall mean the 12- month period commencing on the Commencement Date and each 12-month period thereafter during the term of this Lease (and any renewal or extension-thereof), provided that, if the Commencement Date is not the first day of a calendar month, the first "Lease Year" shall be the period commencing on the Commencement Date and ending on the last day of the twelfth (12th) full calendar month following the Commencement Date and all Base Rent payable for the month in which the Commencement Date occurs shall be paid on the first day of the following calendar month. Notwithstanding the foregoing, on or prior to the date of closing under the Sale Agreement (as defined herein), Tenant shall also deposit into escrow with First American Title Guaranty Company the sum of Two Million Dollars ($2,000,000.00) to cover a portion of the Landlord's Development Costs which shall be disbursed in accordance with the Escrow Agreement attached hereto as Exhibit I.



4. Construction.

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A. Landlord agrees, at Landlord's sole cost and expense, to cause construction of Landlord's Improvements in accordance with the following schedule:



(a) Landlord shall use all reasonable efforts to commence the Site

Preparation Phase (as defined in that certain Real Estate Purchase and Sale

Agreement and Joint Escrow Instructions dated March 18, 1997 (the "Sale

Agreement") between Regis Homes of Northern California, Inc. and Landlord)

as soon as possible following the date Landlord acquires the Land and in

any event on or before the date four (4) business days following the date

Landlord acquires the Land (the "Estimated Construction Commencement

Date"), in accordance with the Plans and in accordance with the

construction schedule attached hereto as Exhibit C-1 (the "Construction

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Schedule") and shall diligently pursue construction in an effort to

complete Landlord's Improvements on or before the Estimated Construction

Completion Date (as herein defined); provided, however, if delay is caused

or contributed to by act or neglect of Tenant, or those acting for or under

Tenant including, without limitation, changes ordered by Tenant, or delays

caused by labor disputes, casualties, acts of God or the public enemy,

governmental embargo restrictions, shortages of fuel, labor, or building

materials, action or non-action of public utilities, or of local, State or

Federal governments affecting the work, or other similar causes beyond the

Landlord's reasonable control, then the time of commencement of said

construction shall be extended for the additional time caused by such delay

(such delays are each hereinafter referred to as an "excused delay"). The

date on which Landlord actually commences construction of Landlord's

Improvements shall be referred to as the "Construction Commencement Date."





(b) Landlord shall use all reasonable efforts to substantially

complete construction of Landlord's Improvements as soon as possible

following the Construction Commencement Date in accordance with the

Construction Schedule attached hereto as Exhibit C-1, as may be extended by

-----------

excused delays (the "Estimated Construction Completion Date"). The date on

which Landlord substantially completes construction of Landlord's

Improvements (except for work to be performed by Tenant) shall be referred

to as the "Construction Completion Date." Landlord acknowledges that

Tenant will suffer significant damages if Landlord fails to deliver the

Demised Premises on or before the Estimated Construction Completion Date

and that time is of the essence with respect to Landlord's completion of

the Landlord's Improvements as required herein. If Landlord fails to cause

the Landlord's Improvements to be substantially completed on or before the

Estimated Construction Completion Date, as said date may be extended from

time to time due to excused delays, Landlord shall be obligated to pay to

Tenant the following sums for each day after the Estimated Construction

Completion Date until the Construction Completion Date up to the maximum of

sixty-five (65) days of delay and thereafter, Landlord shall be liable for

Tenant's actual damages for the delay (which shall include Tenant's actual

costs incurred in connection with holding over at its present location

and/or renting reasonably acceptable substitute space): (a) for the first

thirty (30) days of delay, the sum of One Thousand Dollars ($1,000.00) per

day for each calendar day of delay; (b) for the thirty-first (31st) day

through the sixtieth (60th) day of delay, the sum of Two Thousand Five

Hundred Dollars ($2,500.00) per day for each calendar day of delay; and (c)

for the sixty-first (61st) day through the sixty-fifth (65th) day of delay,

the sum of Seven Thousand Five Hundred Dollars ($7,500.00) per day for each

calendar day of delay. Notwithstanding the foregoing, in no event shall

Landlord be liable to Tenant for any punitive, special, incidental,

indirect or consequential damages of any kind whatsoever, each of which is

hereby excluded by agreement of the parties regardless of whether or not

any party has been advised of the possibility of such damages. Landlord

shall pay the sums calculated above (other than actual damages accrued

after the 95th day of delay) within thirty (30) days after the Commencement

Date. In connection with the foregoing, Landlord agrees to deposit into

escrow for the benefit of Tenant all damages received from Regis

Contractors of Northern California, L.P. pursuant to Section 1.7 of that

certain Construction Management Agreement dated March 18, 1997. Tenant

agrees to deliver to Landlord an accounting of Tenant's actual damages upon



B. Tenant or its architect will from time to time upon written request of Landlord or Landlord's construction lender certify that the construction of Landlord's Improvements has been completed to that point to the reasonable satisfaction of Tenant. Notwithstanding the foregoing, nothing contained herein shall be deemed to abrogate, waive or compromise any of Tenant's rights hereunder with respect to the construction and completion of Landlord's Improvements.



C. In the event this Lease has not been terminated pursuant to Paragraph 49 of the Lease, Landlord and Tenant promptly shall execute a document substantially in the form attached hereto as Exhibit E and made a part hereof, to establish the Commencement Date and the Expiration Date.





D. The following phrases shall have the meanings set forth below:



(a) The phrase "commence[d][s] construction of Landlord's

Improvements" as used herein means issuance of all necessary permits needed

to commence construction, a building permit, execution of a construction

contract or contracts for the completion of Landlord's Improvements in

accordance with the Plans, execution of this Lease, and excavation work has



(b) The phrase "substantial[ly] complete[ed] [ion] [of] construction

of Landlord's Improvements as used in this Lease shall mean the

municipality having jurisdiction thereof issues a certificate of occupancy

permitting Tenant to occupy Landlord's Improvements or takes such other

action as may be customary to permit occupancy or use thereof for the

purposes provided herein and Landlord's Improvements are otherwise ready

for beneficial use and occupancy by Tenant subject to completion of any

punchlist items (as defined herein) by Landlord and Landlord's architect

certified to Tenant in writing that Landlord's Improvements have been

constructed and completed in a good and workmanlike manner in substantial

accordance with the Plans and that to the best of its knowledge the Plans

comply with applicable laws, including without limitation all building

codes, zoning ordinances and regulations and the Act (as defined herein)

and Landlord's Improvements are otherwise ready for beneficial use and

occupancy by Tenant subject to completion of any punchlist items by

Landlord; provided, however, the issuance of a certificate of occupancy or

such other action as may be customary to permit occupancy or use thereof

and the issuance of the architect's certificate shall not be a condition to

payment of rent or commencement of the term if failure to secure such

certificate of occupancy or action or architect's certificate is caused by

the act or neglect of Tenant or if matters required for issuance are the

responsibility of Tenant.



(c) The phrase "usable square feet" means the square feet contained

within the inside of the exterior walls of the Building.



E. Within fifteen (15) days after the Construction Completion Date, Tenant, Landlord and Landlord's Architect shall prepare and execute a punchlist (the "punchlist") of incomplete and incorrect items which shall include details of construction and mechanical and electrical adjustments which are minor in character and do not materially interfere with Tenant's use or enjoyment of the Demised Premises in accordance with the provisions of this Lease, and may also include landscaping and other items which do not materially affect Tenant's use of the Demised Premises but which cannot be immediately completed because of weather, or any items listed on the Plans or the Construction Schedule as items to be completed after substantial completion of the Landlord's Improvements, if any (such items are sometimes hereinafter referred to as "punchlist items"). Landlord shall use all reasonable efforts to complete the punchlist items as soon as possible after its receipt of the punchlist, and to minimize disruption of Tenant's business and other inconveniences to Tenant, subject to excused delays. If Landlord fails to complete the punchlist items within ninety (90) days after the receipt by Landlord of the completed punchlist by Tenant, subject to excused delays, then Tenant shall have the right, but not the obligation, to complete the punchlist items and Landlord shall reimburse Tenant for its





reasonable out-of-pocket expenditures in connection therewith upon presentation of invoices in sufficient detail and lien waivers covering performance of the work. Nothing herein contained shall be deemed or construed to permit Tenant to offset against Base Rent or other charges payable by Tenant hereunder. Landlord shall deliver to Tenant "as built" working drawings of the Landlord's Improvements within sixty (60) days after completion of the punchlist items.



Landlord shall maintain a retainage of a minimum of ten percent (10%) of the cost the so-called tenant improvement portion of the Landlord Improvements (the "TI Work") or ____________, based on an estimated approximate cost of _______________ for the TI Work. The aforementioned on retainage shall not be released until the punchlist items for TI Work have been completed to Tenant's reasonable satisfaction.



F. Landlord shall at its own expense correct or repair any parts of Landlord's Improvements that fail to conform with the requirements of the Plans during the period of construction of Landlord's Improvements (unless Tenant is willing to accept such non-conforming work and so notifies Landlord thereof in writing). Landlord shall correct any defects in the construction of Landlord's Improvements not caused by Tenant which appear within a period of one (1) year from the Construction Completion Date, but not otherwise. Landlord shall obtain for the joint benefit of Landlord and Tenant, a joint, non-exclusive assignment of all contractor, subcontractor, equipment, material and manufacturers' warranties relating to the Landlord's Improvements which shall contain a minimum of a one (1) year warranty period commencing with the contractors' or subcontractors' completion of the work included in Landlord's Improvements (the "Warranties"). Furthermore, on the Construction Completion Date, Landlord shall assign to Tenant the non-exclusive right to enforce any and all Warranties and Landlord agrees to reasonably cooperate with Tenant's pursuit of any and all claims under the Warranties.



G. Tenant shall have the right to request that changes be made to the Plans. Within ten (10) days after Tenant's requests, Landlord shall provide an estimate of the amount that the change will increase or decrease the cost of completing the Landlord's Improvements and the time adjustment to the Construction Schedule, if any. If Tenant approves the change following receipt of the estimates, Landlord shall submit a change order to its contractors to implement the change requested by Tenant. The estimated increase or decrease in the time required to complete the Landlord's Improvements resulting from Tenant's change shall be reflected as an adjustment to the Construction Schedule and shall be deemed an "excused delay" and any net increase or decrease in Landlord's construction costs due to Tenant's change order, shall be borne by or credited to Tenant, as the case may be, by means of an adjustment to the Schedule of Rents in accordance with the formula established on Exhibit D.



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