EXHIBIT 10.4
Extension Amendment
#001006-09
FIRST AMENDMENT
THIS FIRST AMENDMENT (the "AMENDMENT") is made and entered into as of
the 9TH day of FEBRUARY, 2009, by and between XXXXXX INVESTMENT
COMPANY, A CALIFORNIA LIMITED PARTNERSHIP ("LANDLORD"), and RAPTOR
NETWORKS TECHNOLOGY, INC. ("TENANT").
RECITALS
A. Landlord and Tenant are parties to that certain lease dated SEPTEMBER
22, 2008 (the "LEASE"). Pursuant to the Lease, Landlord has leased to
Tenant space currently containing approximately 2,400 square feet (the
"Premises") described as 0000 XXXXX XXXXX XXXXXX located at SANTA ANA,
CALIFORNIA.
B. The Lease by its terms shall expire on MARCH 31, 2009 ("PRIOR
TERMINATION DATE"), and the parties desire to extend the Term of the
Lease, all on the following terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Landlord
and Tenant agree as follows:
I. EXTENSION. The Term of the Lease is hereby extended for a period of
SIX (6) MONTHS and shall expire on SEPTEMBER 30, 2009 ("EXTENDED
TERMINATION DATE"), unless sooner terminated in accordance with the
terms of the Lease. That portion of the Term commencing the day
immediately following the Prior Termination Date ("EXTENSION DATE")
and ending on the Extended Termination Date shall be referred to
herein as the "EXTENDED TERM".
II. BASE RENT AND COMMON AREA MAINTENANCE. As of the Extension Date, the
schedule of Base Rent and Common Area Maintenance payable with respect
to the Premises during the Extended Term is the following:
----------------------------------------------------------------------
- PERIOD MONTHLY -
- BASE RENT -
----------------------------------------------------------------------
- APRIL 1, 2009 - SEPTEMBER 30, 2009 * $1,560.00 -
----------------------------------------------------------------------
*PREPAID FOR THE TERM OF THIS LEASE
All such Base Rent and Common Area Maintenance shall be payable by
Tenant in accordance with the terms of the Lease.
III. ADDITIONAL SECURITY DEPOSIT. No additional security deposit shall be
required in connection with this Amendment.
IV. PROPERTY TAXES & INSURANCE PREMIUMS. For the period commencing on the
Extension Date and ending on the Extended Termination Date, Tenant
shall pay for Tenant's pro-rata share of increases (if any) over base
year property taxes and insurance premiums in accordance with the
terms of the Lease, provided, however, during such period, the
Insurance Base for the computation of Tenant's pro-rata share of
Insurance Premiums is amended from $TBD to $397.87, and the Tax Base
for the computation of Tenant's pro-rata share of Real Property Taxes
is amended from $TBD to $529.99.
V. IMPROVEMENTS TO PREMISES. Tenant is in possession of the Premises and
accepts the same "as is" without any agreements, representations,
understandings or obligations on the part of Landlord to perform any
alterations, repairs or improvements, except as may be expressly
provided otherwise in this Amendment.
VI. LESSEE'S MAINTENANCE OBLIGATIONS Section 7.1 of the Lease shall hereby
be amended to include the following section 7.1(d) REPLACEMENT:
Subject to Lessee's indemnification of Lessor set forth in Paragraph
8.7 of the Lease, and without relieving Lessee of liability resulting
from Lessee's failure to exercise and perform good maintenance
practices, if an item described in Paragraph 7.1(b) of the Lease
cannot be repaired other than at a cost which is in excess of 50% of
the cost of replacing such item, then such item shall be replaced by
Lessor, and the cost thereof shall be prorated between the parties and
Lessee shall only be obligated to pay, each month during the remainder
of the term of this Lease, on the date on which Base Rent is due, an
amount equal to the product of multiplying the cost of such
replacement by a fraction, the, numerator of which is one, and the
denominator of which is 84 (i.e. 1/84th of the cost per month). Lessee
shall pay interest on the unamortized balance but may prepay its
obligation at any time.
VII. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that, effective
as of the date of this Amendment (unless different effective date(s)
is/are specifically referenced in this Section), the Lease shall be
amended in the following additional respects:
A. RENT: Lessee shall submit on or before April 1, 2009, pre-paid
rent in the amount of $9,360.00
B. ADDITIONAL CONDITIONS: At the latter of the expiration of the
lease or Lessee's occupancy of the premises, Lessee shall remove
the telecommunication wires running across the roof and repair
the hole in the South concrete wall where the wire enters the
building.
VIII. MISCELLANEOUS.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There have
been no additional oral or written representations or agreements.
Under no circumstances shall Tenant be entitled to any rent
abatement, improvement allowance, leasehold improvements, or
other work to the Premises, or any similar economic incentives
that may have been provided Tenant in connection with entering
into the Lease, unless specifically set forth in this Amendment.
B. Except as herein modified or amended, the provisions, conditions
and terms of the Lease shall remain unchanged and in full force
and effect.
C. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment shall
govern and control.
D. Submission of this Amendment by Landlord is not an offer to enter
into this Amendment but rather is a solicitation for such an
offer by Tenant. Landlord shall not be bound by this Amendment
until Landlord has executed and delivered the same to Tenant.
E. Tenant hereby represents to Landlord that Tenant has dealt with
no broker in connection with this Amendment. Tenant agrees to
indemnify and hold Landlord, its members, principals,
beneficiaries, partners, officers, directors, employees,
mortgagee(s) and agents, and the respective principals and
members of any such agents (collectively, the "LANDLORD RELATED
PARTIES") harmless from all claims of any brokers claiming to
have represented Tenant in connection with this Amendment.
Landlord hereby represents to Tenant that Landlord has dealt with
no broker in connection with this Amendment. Landlord agrees to
indemnify and hold Tenant, its members, principals,
beneficiaries, partners, officers, directors, employees, and
agents, and the respective principals and members of any such
agents (collectively, the "TENANT RELATED PARTIES") harmless from
all claims of any brokers claiming to have represented Landlord
in connection with this Amendment.
F. Each signatory of this Amendment represents hereby that he or she
has the authority to execute and deliver the same on behalf of
the party hereto for which such signatory is acting.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
LANDLORD:
XXXXXX INVESTMENT COMPANY, A
CALIFORNIA LIMITED PARTNERSHIP
By: /s/ H. Xxxxxx Xxxxxx, Jr.
-------------------------
Name: H. XXXXXX XXXXXX, JR.
---------------------
Title: GENERAL PARTNER
---------------
TENANT:
RAPTOR NETWORKS TECHNOLOGY, INC.
By: /s/ XXX XXXXXXXXXXXXXXX
-----------------------
Name: XXX XXXXXXXXXXXXXXX
--------------------
Title: DIRECTOR
--------
By: /s/ XXX XXXXXXXXXXXXXXX
-----------------------
Name: XXX XXXXXXXXXXXXXXX
--------------------
Title: CEO
---
