EXHIBIT 10.71
FIRST AMENDMENT TO LEASE
This First Amendment to Lease (the "AMENDMENT") is made as of
the_______________________________day of ____________, 2005, by and between
FirstCal Industrial 2 Acquisition, LLC, a Delaware LLC, as landlord ("LANDLORD")
and Sedona Corporation, a Pennsylvania Corporation as tenant ("TENANT").
RECITALS
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A. Landlord is the successor in interest to DUKE REALTY LIMITED
PARTNERSHIP, an Indiana limited partnership ("FORMER OWNER").
B. Former Landlord originally owned the real property commonly
known as WESTPOINT BUSINESS CENTER, 13895 INDUSTRIAL PARK BOULEVARD (the
"PROPERTY"), and on September 29, 2005, Landlord acquired fee simple title to
the Property from the Former Owner.
C, Former Owner, as landlord, entered into a certain Lease, dated
October 31, 2005, with ( the "ORIGINAL LEASE"), and pursuant to the Original
Lease, Tenant leased from the Former Owner 630 rentable square feet in the
Property (the "PREMISES").
D. On September 29, 2005, Former Owner assigned to Landlord Former
Owner's entire right, title and interest in, to and under the Original Lease.
E. Landlord and Tenant now desire to modify and amend the Original
Lease.
NOW, THEREFORE, in consideration of the terms and provisions of this
Amendment, Landlord and Tenant hereby modify and amend the Original Lease, as
follows:
1. Recitals. All of the Recitals set forth above are hereby
incorporated into the body of this First Amendment, as though separately and
specifically set forth herein.
2. Defined Terms and Conflict. Any capitalized terms used, but not
defined, in this Amendment shall be deemed to have the meanings respectively
ascribed to those terms in the Original Lease. In the event of any conflict
between the terms and provisions of the Original Lease and those of this
Amendment, the terms and provisions of this Amendment shall control, in all
events.
3. Extension of Lease Term. The Lease Term is hereby extended for a
period of THREE (3) YEARS and ZERO (0) MONTHS, so that the extended Lease Term
shall expire on December 31, 2008 (the "EXTENDED EXPIRATION DATE"). The period
of time from the expiration of the Lease Term described in the Original Lease
through the Extended Expiration Date is hereinafter referred to as the "EXTENDED
LEASE TERM."
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4. Minimum Annual Rent. During the Extended Lease Term, the Minimum
Annual Rent and the Monthly Rental Installments shall be as follows:
Term Monthly Base (Net) Rent
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January 1, 2006 - January 31, 2006 $ 0.00
February 1, 2006 - December 31, 2006 $459.38
January 1, 2007 - December 31, 2007 $472.50
January 1, 2008 - December 31, 2008 $485.63
5. Tenant's Insurance. SECTION 9.02 of the Original Lease is hereby
deleted and, in lieu thereof, the following is instead substituted:
Tenant shall purchase, at its own expense, and keep in force at
all times during the Lease Term the policies of insurance set forth
below (collectively, "TENANT'S POLICIES"). All Tenant's Policies shall
(a) be issued by an insurance company with a Best's rating of A or
better and otherwise reasonably acceptable to Landlord and shall be
licensed to do business in the state in which the Leased Premises is
located; (b) provide that said insurance shall not be canceled or
materially modified unless 30 days' prior written notice shall have
been given to Landlord; (c) provide for deductible amounts that are
reasonably acceptable to Landlord (and its lender, if applicable) and
(d) otherwise be in such form, and include such coverages, as Landlord
may reasonably require. The Tenant's Policies described in (i) and (ii)
below shall (1) provide coverage on an occurrence basis; (2) name
Landlord (and its lender, if applicable) as additional insured; (3)
provide coverage, to the extent insurable, for the indemnity
obligations of Tenant under this Lease; (4) contain a separation of
insured parties provision; (5) be primary, not contributing with, and
not in excess of, coverage that Landlord may carry; and (6) provide
coverage with no exclusion for a pollution incident arising from a
hostile fire. All Tenant's Policies (or, at Landlord's option,
Certificates of Insurance and applicable endorsements, including,
without limitation, an "Additional Insured-Managers or Landlords of
Premises" endorsement) shall be delivered to Landlord prior to the
Commencement Date and renewals thereof shall be delivered to Landlord's
corporate and regional notice addresses at least 30 days prior to the
applicable expiration date of each Tenant's Policy. In the event that
Tenant fails, at any time or from time to time, to comply with the
requirements of the preceding sentence, Landlord may (A) order such
insurance and charge the cost thereof to Tenant, which amount shall be
payable by Tenant to Landlord upon demand, as Additional Rent or (B)
impose on Tenant, as Additional Rent, a monthly delinquency fee, for
each month during which Tenant fails to comply with the foregoing
obligation, in an amount equal to five percent (5%) of the Monthly
Rental Installments then in effect. Tenant shall give prompt notice to
Landlord and Agent of any bodily injury, death, personal injury,
advertising injury or property damage occurring in and about the
Property.
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Tenant shall purchase and maintain, throughout the Term, a
Tenant's Policy(ies) of: (i) commercial general or excess liability
insurance, including personal injury and property damage, in the amount
of not less than $2,000,000.00 per occurrence, and $5,000,000.00 annual
general aggregate, per location; (ii) comprehensive automobile
liability insurance covering Tenant against any personal injuries or
deaths of persons and property damage based upon or arising out of the
ownership, use, occupancy or maintenance of a motor vehicle at the
Premises and all areas appurtenant thereto in the amount of not less
than $1,000,000, combined single limit; (iii) commercial property
insurance covering Tenant's Property (at its full replacement cost);
(iv) workers' compensation insurance per the applicable state statutes
covering all employees of Tenant; (v) business interruption insurance
with limits not less than an amount equal to two (2) years' rent due
hereunder; and if Tenant handles, stores or utilizes Hazardous
Substances in its business operations, (vi) pollution legal liability
insurance.
6. Financial Information. SECTION 16.09 of the Original Lease is
hereby deleted and, in lieu thereof, the following is hereby substituted:
From time to time during the Lease Term, Tenant shall deliver
to Landlord information and documentation describing and concerning
Tenant's financial condition, and in form and substance reasonably
acceptable to Landlord, within ten (10) days following Landlord's
written request therefor. Upon Landlord's request, Tenant shall provide
to Landlord the most currently available audited financial statement of
Tenant; and if no such audited financial statement is available, then
Tenant shall instead deliver to Landlord its most currently available
balance sheet and income statement. Furthermore, upon the delivery of
any such financial information from time to time during the Lease Term,
Tenant shall be deemed to automatically represent and warrant to
Landlord that the financial information delivered to Landlord is true,
accurate and complete, and that there has been no adverse change in the
financial condition of Tenant since the date of the then-applicable
financial information.
7. Waiver of Trial by Jury. THE LANDLORD AND THE TENANT, TO THE
FULLEST EXTENT THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BROUGHT BY ANY PARTY TO THIS LEASE WITH RESPECT TO THIS
LEASE, THE LEASED PREMISES, OR ANY OTHER MATTER RELATED TO THIS LEASE OR THE
LEASED PREMISES.
8. Miscellaneous.
8.1 Entire Agreement. This Amendment constitutes the entire
understanding between the parties with respect to the transaction contemplated
herein, and all prior or contemporaneous oral agreements, understandings,
representations and statements, and all prior written agreements,
understandings, letters of intent and proposals are merged into this Amendment.
Except as otherwise expressly provided herein, neither this Amendment nor any
provisions hereof may be waived, modified, amended, discharged or terminated
except by an instrument in writing signed by the party against which the
enforcement of such waiver, modification, amendment, discharge or termination is
sought, and then only to the extent set forth in such instrument.
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8.2 No Recording. Neither this Amendment nor any memorandum
thereof shall be recorded and the act of recording by Tenant shall be deemed a
default by Tenant hereunder.
8.3 Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the state in which the Property is
located.
8.4 Construction of Agreement. In construing this Amendment, all
headings and titles are for the convenience of the parties only and shall not be
considered a part of this Amendment. Whenever required by the context, the
singular shall include the plural and the masculine shall include the feminine
and vice versa. This Amendment shall not be construed as if prepared by one of
the parties, but rather according to its fair meaning as a whole, as if both
parties had prepared it. All (if any) Exhibits attached hereto are incorporated
in this Amendment by reference thereto.
8.5 Partial Invalidity. The provisions of this Amendment shall be
deemed independent and severable, and the invalidity or partial invalidity or
enforceability of any one provision shall not affect the validity of
enforceability of any other provision hereof.
8.6 Counterparts; Facsimile. This Amendment may be executed in
multiple counterparts and shall be valid and binding with the same force and
effect as if all parties had executed the same Amendment. A fully executed
facsimile copy of this Amendment shall be effective as an original.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties executed this Amendment as of the
_______ day of _____________, 2005.
LANDLORD:
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FirstCal Industrial 2 Acquisition, LLC, a Delaware limited
liability company
BY: FirstCal Industrial 2, LLC, a Delaware limited
liability company and its sole member
BY: FR FirstCal 2, LLC, a Delaware limited
liability company and its Manager
BY: First Industrial Development Services,
Inc., a Maryland corporation and its sole
member
By: _______________________________
Name: _____________________________
Its: ______________________________
Date: _____________________________
TENANT:
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Sedona Corporation, a
Pennsylvania Corporation
By: _______________________________
Name: _____________________________
Its: ______________________________
Date: _____________________________
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