Exhibit 10.10
AMENDMENT NO. 1 TO OFFICE SPACE LEASE
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THIS AMENDMENT NO. 1 ("Amendment No. 1") to the Lease (as defined below) is
made the 12 day of October, 1998 is by and between 000 XXXXXXXX XXXXXX
ASSOCIATES, L.P., a Pennsylvania limited partnership (hereinafter "Landlord")
whose address is 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxx Xxxx, Xxxxxxxxxxxx 00000 and
CDNOW, INC., a Pennsylvania corporation (hereinafter "Tenant").
STATEMENT OF FACTS
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A. Landlord and Tenant entered into an Office Space Lease dated June 12,
1998 (hereinafter "Lease") setting forth the terms of occupancy by Tenant of
space in the building located at 000 Xxxxxxxx Xxxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxxxxxxx 00000 (hereinafter "Building").
B. Tenant and Landlord desire to extend certain dates, periods,
measurements and other adjustable items set forth in the Lease on the terms and
conditions set forth herein.
C. All terms not defined herein shall have the meaning ascribed to such
terms in the Lease.
STATEMENT OF TERMS
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NOW, THEREFORE, in consideration of the Premises and the covenants
hereinafter set forth, and intending to be legally bound hereby, it is mutually
agreed as follows:
1 Article 6 of the Preamble is hereby amended to read in its entirety as
follows:
5. DEMISED PREMISES OR PREMISES shall be sixty three thousand
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nine hundred thirty five (63,935) gross rentable square feet as
measured in accordance with 1996 BOMA Standards for multi-tenant
buildings which measurement includes a loss factor of 3.45%.
2 Section 3 of the Lease is hereby amended to read in its entirety as
follows:
3. COMPLETION OF PREMISES. The Building and the Premises shall
be completed in accordance with the Work Letter attached hereto as
Exhibit C (herein called the "Work Letter") at Landlord's expense.
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All necessary work shall be commenced promptly following Landlord's
execution of this Lease and shall be substantially completed on the
Occupancy Date set forth in the Preamble; provided, however, that the
time for substantial completion of the Building and
the Premises shall be extended for additional periods of time equal to
the time lost by Landlord or Landlord's contractors, subcontractors or
suppliers due to strikes or other labor troubles; Tenant Delay (as
defined in Exhibit C); governmental restrictions and limitations;
unavailability or delays in obtaining fuel, labor or materials; xxxx
or other national emergency; accidents; floods; defective materials;
fire damage or other casualties; adverse weather conditions; the
inability to obtain building or use and occupancy permits; or any
cause similar or dissimilar to the foregoing which is beyond the
reasonable control of Landlord or Landlord's contractors,
subcontractors or suppliers ("Force Majeure"); provided further,
however, that for Landlord to claim that a Force Majeure prevented
timely achievement of substantial completion (i) Landlord must provide
written notice of the applicable event to Tenant within 48 hours of
its occurrence, which notice shall specify the Force Majeure event and
the anticipated effect on the date of substantial completion, and (ii)
an actual delay in substantial completion must have occurred which but
for the Force Majeure event would not have occurred. The Building and
the Premises shall be deemed substantially completed when (i) all of
the work and installations required to improve the Building and
Premises as delineated in the Work Letter ("Landlord Work") are
completed in conformity with such Work Letter (subject, in the case of
the Premises Work (as defined in Exhibit C) to minor dimensional
variations due to construction being carried out within an existing
structure and "punch list" items as described below), and the HVAC
(and all building utilities) shall be in good working order and be
functioning in accordance with operating standards described in the
Lease or in the Work Letter but in all events and in all aspects
necessary to permit Tenant to occupy and fully utilize the Building
and the Premises for its intended use, and (ii) Tenant has received
from Landlord all permits required for lawful use and occupancy of the
Premises by the Tenant (punch list items alone excepted). Landlord
shall notify Tenant in writing approximately forty-five (45) days in
advance and again not later than ten (10) days prior to the date
Landlord believes it will achieve substantial completion of the
Landlord's Work and will be prepared to deliver the Premises to Tenant
in the condition required hereunder. Landlord shall promptly correct
all work properly rejected by Tenant for failing to conform to the
requirements of the Work Letter, whether or not fabricated, installed
or completed and whether nor not set forth on the punch list. If
within one year after the date of substantial completion of the
Landlord Work any of such work is found to be not in conformity with
the requirements of the Work Letter, Landlord shall correct it
promptly after receipt of written notice from Tenant to do so.
Landlord's obligations under the immediately preceding sentence shall
survive Tenant's occupancy of the Premises upon substantial
completion. Tenant shall give Landlord notice promptly after discovery
of any such condition. No failure to deliver the Premises by the
September 1, 1998 Occupancy Date shall in any respect affect the
validity or continuance of this Lease or any obligation of Tenant
hereunder or extend the Term of the Lease
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provided, however, that for every day of delay after November 6, 1998,
Tenant shall be entitled to two (2) days abatement of Rent under this
Lease in addition to the abatement period already provided in the
Preamble hereto, at Paragraph 9, which rent abatement shall run for
six (6) consecutive months from the date of substantial completion
(the designated "Rent Commencement Date") notwithstanding), and shall
be subject to extension as otherwise provided in this sentence.
Notwithstanding the foregoing, in the event Landlord fails to
substantially complete the Landlord Work and deliver the Premises to
Tenant on or before November 20, 1998, then at Tenant's option, the
Occupancy Date specified in the Preamble at Paragraph 16 shall be
extended to January 15, 1999. Lastly, the event the Landlord Work is
not substantially completed and delivered by Landlord to Tenant on or
before December 23, 1998, the Tenant may terminate this Lease with no
further obligations to Landlord and Tenant shall receive the immediate
return of any monies theretofore paid by Tenant to Landlord. The
aforesaid December 23, 1998 date shall be subject to extension by
reason of Tenant Delay as provided in the Work Letter, but otherwise
shall not be subject to delay by reason of Force Majeure.
3 Article 9 of the Preamble is amended to include the following
provisions:
9. "In addition to any other credit to which Tenant may be
entitled as stated above, Tenant shall be entitled to a one-time Fixed
Basic Rent Credit equal to $80,000.00 (the "Credit") which shall be
applied against Fixed Basic Rent due hereunder until such credit is
fully utilized. Commencing on September 1, 2000, Tenant shall pay
Landlord, in addition to any and all other Fixed Basic Rent
obligations, the sum of $80,000.00 together with interest at the rate
of five percent (5%) per annum from the date the Credit was applied by
Tenant through the date of payment in four (4) equal [quarterly
installments. Once extended, Tenant may prepay all or any portion of
the Credit at any time and from time to time with no prepayment fee or
penalty."
4 The Improvement Allowance set forth in the Work Letter shall be equal
to $1,232,666.80 which is $19.28 per square foot multiplied by 63,935 rentable
square feet. The agreed to contract amount for the Premises Work Costs is
$1,413,000.00 plus the Landlord's construction management fee of $35,325.00
(2.5% of $1,413,000.00) the sum of which is $1,448,325.00. The difference
between $1,448,325.00 and $1,232,666.80 is $215,658.20 which amount shall be due
and payable by Tenant within thirty (30) days following the date Landlord
delivers possession of the Premises to Tenant as provided in Paragraph 2 above.
5 Landlord shall undertake commercially reasonable efforts to deliver
the Premises to Tenant before November 6, 1998 as stated in Section 3 of the
Lease, but Landlord's failure to deliver the Premises prior to such date shall
not give Tenant any further rights except as expressly set forth in Section 3 of
the Lease. In order to keep Tenant apprised of Landlord's
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progress, the parties shall attend weekly meetings at a time and place which is
mutually agreeable which meeting shall be attended by Mr. J. Xxxxx X'Xxxxx. In
no event shall Landlord request further extensions of the November 6, 1998
deliver date set forth in Section 3 except in the case of an express Tenant
Delay (as defined in the Work Letter).
6 Tenant had through September 17, 1998 to determine whether it desired
to lease the approximately 6,100 gross rentable square feet as set forth in that
certain letter dated August 11, 1998 from Xxxxx X. Xxxxxxx, Esquire to Xx.
Xxxxxxx X. Xxxxxx. Tenant had determined not to lease such space. Accordingly,
Tenant's exercise of its right of refusal, as set forth in such letter, shall be
deemed void and of no effect; provided, however, that Tenant's right of first
refusal (as set forth in Section 43 of the Lease) shall remain in full force and
effect as therein provided.
7 Landlord shall be responsible to pay for any services it requests
Xxxxxxx & Associates to perform in measuring the rentable square footage of the
Building and the Premises and those services which are reasonably deemed by
Tenant outside of the scope of services specified in the current services
agreement between Tenant and Xxxxxxx & Associates.
8 Except as modified herein, the Lease covering the Demised Premises
shall remain in full force and effect as if the same sere set forth in full
herein and Landlord and Tenant hereby ratify and confirm all the terms and
conditions thereof.
9 This Amendment shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives, successors and
permitted assigns.
10 Each party agrees that it will not raise or assert as a defense to any
obligation under the Lease or this Amendment or make any claim that the Lease or
this Amendment is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses, notarizations, or
other similar requirements, and each party hereby waives the right to assert any
such defense or make any claim of invalidity or unenforceability due to any of
the foregoing.
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IN WITNESS WHEREOF, Landlord and Tenant have hereunto set their hands and
seals the date and year first above written and acknowledge one to the other
they possess the requisite authority to enter into this transaction and to sign
this Amendment No. 1.
LANDLORD:
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Date Signed:_____________ 000 XXXXXXXX XXXXXX ASSOCIATES, L.P.
a Pennsylvania limited partnership
By: 000 XXXXXXXX XXXXXX ASSOCIATES
ACQUISITION CORPORATION,
a, Pennsylvania corporation,
its sole general partner
By: /s/
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Name:_____________________________
Title:____________________________
TENANT:
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Date Signed: 10/12/98 CDNOW, INC.
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By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title: President
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Attest: Xxxxx X. Xxxxxxx
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