SECOND AMENDMENT TO LEASE
Exhibit 10.29
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease (this “Second Amendment”) is made this 19th day
of January, 2009 by and between 1200 ENTERPRISES LLC (“Lessor”) and SUPERCONDUCTOR TECHNOLOGIES,
INC. (“Lessee”).
Recitals
A. Lessor and Lessee are parties to that certain Standard Industrial/Commercial
Multi-Tenant Lease Net dated 1 June 2001 (the “Lease”) for the premises commonly known as 000 Xxxx
Xxxxx, Xxxxxx X, X, X, X and approximately one-half of Suite E, Santa Barbara, California as more
particularly described in the Lease (the “Premises”).
X. Xxxxxx and Lessee were parties to that certain Standard Industrial/Commercial Multi-Tenant
Lease Net dated 22 January 2003 (the “Warehouse Lease”) for the premises commonly known as 000 Xxxx
Xxxxx, Xxxxx X, Xxxxx Xxxxxxx, Xxxxxxxxxx as more particularly described in the Warehouse Lease
(the “Warehouse Premises”). The Warehouse Lease was amended by a First Amendment to Lease dated 22
March 2004 (the “Warehouse Amendment”). On or about 1 October 2007, the Lease was amended by a
First Amendment to Lease (the “First Amendment”) which incorporated the Warehouse Premises into the
Premises, the Warehouse Lease and the Warehouse Amendment were terminated, and the rent provisions
of the Lease were amended accordingly.
X. Xxxxxx and Lessee have agreed that Lessee has exercised its first option to extend the
Lease pursuant to paragraph 50.
X. Xxxxxx and Lessee have agreed to a fair market rent which will be effective with this
Second Amendment and to modify the provisions related to annual adjustment of rent.
E. Capitalized terms used herein and not otherwise defined shall have the meanings given to
them in the Lease.
NOW, THEREFORE, in consideration of the mutual covenants of the respective parties thereto, it
is agreed as follows:
1. Amendment of Lease. The Lease is hereby amended as follows:
1.1 | The Expiration Date in Paragraph 1.3 is hereby amended to be “30 November 2016.” | ||
1.2 | Paragraph 1.5 is hereby amended to read as follows: “Base Rent: Ninety One Thousand, Six Hundred & Ninety Nine and 40/100 Dollars ($91,699.40) per month (“Base Rent”), payable on the first (1st) day of each month commencing 1 February 2009 (also see Paragraph 4). The Base Rent shall be subject to adjustment on an annual basis on 1 December 2009 and on the same day of every year thereafter (the “Adjustment Date”). The adjustment of the Base Rent shall be calculated as follows: |
For the Adjustment Date on 1 December 2009 and 2010:
(1) The rent in effect as of the Adjustment Date in each year shall be increased by the
greater of (A) zero percent (0.0%); or (B) the percentage increase, if any, in the
Consumer Price Index (All Items for All Urban Consumers 1982-84 = 100 Base), of the
United States Department of Labor, Bureau of Labor Statistics for the Los
Angeles-Anaheim-Riverside,
California area for the twelve-month period ending on the immediately proceeding
September 30th (the “Index). The calculation pursuant to subparagraph (B)
shall be made according to the following formula:
X | = | A x B/C | |
X | = | Adjusted Base Rent | |
A | = | Base Monthly Rent in effect as of the Adjustment Date | |
B | = | The monthly index in effect for the twelve-month period ending on the immediately preceding September 30th (the “Adjustment Index”) | |
C | = | The monthly index in effect for the twelve-month period ending on September 30th one year prior to the Adjustment Index (the “Base Index”) |
The monthly Base Rent as so increased shall be payable for each month commencing with
the Adjustment Date and continuing until the next Adjustment Date. In no event,
however, shall the CPI Adjusted Base Rent be less than the rent payable for the month
immediately preceding the Adjustment Date.
(2) If the Index is discontinued or revised during the term of this lease, such other
government Index or computation with which it is replaced shall be used in order to
obtain substantially the same result as would be obtained if the Index had not been
discontinued or revised.
(3) In not event shall the Adjusted Base Rent increase by greater than two percent
(2.0%) per annum.
For the Adjustment Date on 1 December 2011 and each year thereafter:
(1) The rent in effect as of the Adjustment Date in each year shall be increased by the
greater of (A) one percent (1.0%); or (B) the percentage increase, if any, in the
Consumer Price Index (All Items for All Urban Consumers 1982-84 = 100 Base), of the
United States Department of Labor, Bureau of Labor Statistics for the Los
Angeles-Anaheim-Riverside,
California area for the twelve-month period ending on the
immediately preceding
September 30th (the “Index”). The calculation pursuant to subparagraph (B)
shall be made according to the following formula:
X | = | Ax B/C | |
X | = | Adjusted Base Rent | |
A | = | Base Monthly Rent in effect as of the Adjustment Date | |
B | = | The monthly index in effect for the twelve-month period ending on the immediately preceding September 30th (the “Adjustment Index”) | |
C | = | The monthly index in effect for the twelve-month period ending on September 30th one year prior to the Adjustment Index (the “Base Index”) |
The monthly Base Rent as so increased shall be payable for each month commencing with
the Adjustment Date and continuing until the next Adjustment Date. In no event,
however, shall the CPI Adjusted Base Rent be less than the rent payable for the month
immediately preceding the Adjustment Date.
(2) If the Index is discontinued or revised during the term of this lease, such other
government Index or computation with which it is replaced shall be used in order to
obtain substantially the same result as would be obtained if the Index had not been
discontinued or revised.
(3) In no even shall the Adjusted Base Rent increase by greater than four percent
(4.0%) per annum.
2. Effective Date. The “Effective Date” of this Amendment shall be 1 February
2009.
3. Miscellaneous.
3.1 | This Amendment shall be construed in accordance with, and all disputes hereunder shall be governed by, the internal laws of the State of California, venue in the County of Santa Xxxxxxx. | ||
3.2 | In the event of any controversy or dispute arising out of this Amendment, the prevailing party or parties shall be entitled to recover from the nonprevailing part or parties, reasonable expenses, including, without limitation, attorneys’ fees and costs actually incurred. | ||
3.3 | Should any provision of this Amendment be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms, or provisions shall not be affected thereby and such illegal or invalid part, term or provisions shall be deemed not to be a part of this Amendment. | ||
3.4 | This Amendment sets forth the entire agreement between the parties hereto, and fully supersedes any and all prior agreements or understandings between the parties hereto pertaining to the subject matter hereof. | ||
3.5 | Each part to this Agreement hereby represents and warrants that it has the legal power, right and authority to enter into this Agreement and to consummate this transaction and that it has not assigned any of its rights under the Sublease to any third party. | ||
3.6 | This Amendment may be executed in several counterparts and any and all such executed counterparts shall constitute one agreement binding upon the parties hereto. | ||
3.7 | This Amendment shall be binding on and shall inure to the benefit of the parties hereto and their respective successors and assigns. |
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first
written above.
“Lessor” | “Lessee” | |||||
1200 ENTERPRISES LLC | SUPERCONDUCTOR TECHNOLOGIES, INC. | |||||
By:
|
/s/ Xxxxx Xxxxxx | By: | /s/ Xxxxxxx X Xxxxxx | |||
Print Name: Xxxxx Xxxxxx | Print Name: Xxxxxxx X Xxxxxx | |||||
Date: February 12, 2009 | Date: February 10, 2009 |