1
Exhibit 6.11(c)
SECOND AMENDMENT TO LEASE
This SECOND AMENDMENT TO LEASE is made and entered into this 20th day of
January, 1998, by and between FIRST XXXXXX, LLC, a Delaware limited liability
company, hereinafter referred to as "Landlord," and XXXXXXXX.XXX INC., an
Arizona corporation, hereinafter referred to as "Tenant."
RECITALS
A. INDELA CAMELSQUARE LIMITED LIABILITY COMPANY, an Arizona limited
liability company ("INDELA") and Tenant executed that certain Lease dated
November 28, 1995 and First Amendment to Lease dated February 7, 1997 (the
"Lease") pursuant to which Tenant leased certain premises commonly known as 0000
Xxxx Xxxxxxxxx Xxxx, Xxxxx X000, Xxxxxxx, Xxxxxxx 00000 ("Premises"). The
Landlord has succeeded to all of INDELA's right, title and interest as the
Landlord under the Lease and as such is the Landlord under the Lease.
B. Tenant leased premises commonly known as 0000 Xxxx Xxxxxxxxx Xxxx,
Xxxxx X000 pursuant to a lease dated June 1, 1996. Said lease expired November
30, 1997, however, Tenant was on holdover for December 1997 and January 1998.
Landlord acknowledges that during said months Tenant continued to pay rent as
defined below. Tenant desires to continue leasing Suite K114, therefore,
Landlord agrees to expand the Premises accordingly and as outlined below.
C. In addition, Tenant desires to exercise their First Right of Refusal
as provided for in the First Amendment to Lease dated February 7, 1997 and
expand into Suite K195 for a term of three years. Said expansion shall be
coterminous with existing Lease thereby extending the Term of the Lease.
NOW, THEREFORE, Landlord and Tenant hereby express their mutual desire
and intent to extend the terms of the Lease, expand the Premises and amend by
this writing those terms, covenants and conditions contained in the Lease as set
forth herein.
1. TERM. The term of the Second Amendment of Lease is for eleven (11)
months commencing on March 1, 2000 and terminating on January 31, 2001. The term
for the Expansion Premises, being Suite K114 and Suite K195, will be for a
period of three (3) years commencing on February 1, 1998 and terminating on
January 31, 2001.
2. EXPANSION LEASED PREMISES. Tenant hereby exercises its First Right of
Refusal to Suite K195 as outlined in paragraph 9 of the First Amendment to
Lease, and Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Expansion Premises, upon all of the terms and conditions set forth
in the Lease, as amended by this Amendment, for a term which shall commence upon
the Delivery Date (as defined below) and end on the Termination Date. For
purposes of this Amendment, the Delivery Date shall mean February 1, 1998. If
2
Landlord fails to tender possession of the Premises to Tenant in accordance with
Paragraph 2 on or before February 1, 1998 the Delivery Date will be
automatically extended one day for each day after which Landlord tenders
possession of the Premises to Tenant; provided, however, the Delivery Date and
the date on which Tenant's obligations commence with regard to the Expansion
Premises shall not be extended for any delay attributed to Tenant, as described
in Paragraph 5 below.
3. TENANT IMPROVEMENTS. Landlord hereby agrees to a one-time shampoo for
the carpet in Suite K114, paint and carpet Expansion Suite K195 (carpet to the
building standard quality) and install a connecting opening between Suite K192
and Suite K195 all at Landlord's sole expense. Other than noted here, the Tenant
accepts the Suite in "as-is" condition.
4. EARLY OCCUPANCY. Tenant has no right to enter the Expansion Premises
until possession is tendered by Landlord. Any occupancy of the Expansion
Premises by Tenant for the regular conduct of Tenant's business prior to the
tender of the Expansion Premises by Landlord will be permitted only with the
prior express written consent of Landlord. If Tenant so takes possession of any
part of the Expansion Premises for business purposes with Landlord's prior
written consent, all of the covenants and conditions of the Lease shall be
binding upon both parties with respect to such portion of the Expansion Premises
in the same manner as if the Delivery Date had been fixed as the date when
Tenant took all other amounts due under the Lease, as amended by this Amendment,
for the prior of such occupancy, prorated for the portion of the Expansion
Premises so occupied. No early occupancy under this Paragraph will change the
Delivery Date.
5. TENANT'S DELAYS. If Landlord is delayed in tendering the Expansion
Premises as a result of:
(a) Tenant's request for materials or installations as a part of
the Expansion Premises that are other than building standard items (except as
may be included with the Expansion Improvements);
(b) Tenant's request for changes in any drawing, plans or
specifications;
(c) Any other act or omission of Tenant (all of which shall be
deemed to be delays caused by Tenant).
then the Delivery Date shall only be extended pursuant to Paragraph 2 of this
Amendment until the date on which Landlord would have been able to tender the
Premises but for such delays.
6. PUNCH LIST. Tenant's taking possession of any portion of the
Expansion Premises will be conclusive evidence that such portion of the
Expansion Premises was in good order and satisfactory condition when Tenant took
possession, except as to an inspection of a punch list prepared and signed by
Landlord and Tenant after an inspection of the Expansion Premises by both such
parties when Tenant takes possession. Landlord will not be responsible for any
items of damage caused by Tenant, its agents, independent contractors or
suppliers. No promises to alter, remodel or improve the Expansion Premises or
Building have been made by
2
3
Landlord to Tenant other than as may be expressly set forth in the Lease,
including this Amendment.
7. LEASED PREMISES. The Premises, as defined in the Lease and amended
hereby, shall be deemed to include the original Premises and the Expansion
Premises. As a consequence thereof, commencing upon the Delivery Date, the
Rentable Area of the Premises shall be increased to a total of 4,490,000
rentable square feet as outlined below:
(a) Original Premises, Suite K192: said Premises contains 2,296
rentable square feet; and
(b) Expansion Premises: Suite K114 containing 1,273 rentable
square feet, which suite is outlined on Exhibit "A" contained herein and shall
continue to be referred to as Suite K114; and
(c) Expansion Premises: Suite K195 (which shall now be referred
to as part of Suite K192) containing an additional 921 rentable square feet,
which suite is outlined on Exhibit "A" contained herein.
8. MONTHLY RENT. Tenant agrees to pay as the monthly base rental the
following:
February 1, 1998 - January 31, 1999 $6,547.92 per month
February 1, 1999 - January 31, 2000 $6,828.54 per month
February 1, 2000 - January 31, 2001 $7,109.17 per month
plus applicable sales tax
for each and every month of the lease, payable in advance, without offset or
deduction, on the first day of each month, commencing on February 1, 1998.
Landlord acknowledges the Leased Premises known as Suite K114 expired on
November 30, 1997 and Tenant has paid rent as "Holdover Tenant" for December,
1997 and January, 1998 in the amount of $1,587.34 plus sales tax.
9. SECURITY DEPOSIT. Tenant shall pay Landlord the sum of One Thousand,
Six Hundred Fifty and No/100 Dollars ($1,650.00) as Security Deposit for the
Expansion Premises originally known as Suite K195. In addition, Landlord shall
transfer the security deposit on hand of $1,600.00 from the Lease dated June 21,
1996, which lease has expired to be held as Security Deposit for the Expansion
Premises known as Suite K114; and Landlord shall continue to hold the Security
Deposit on hand for the original Premises known as Suite K192, in the amount of
$3,100.00. Now therefore, the total Security Deposit on hand for the Leased
Premises shall be Six Thousand, Three Hundred Fifty and No/100 Dollars
($6,350.00).
3
4
10. JANITORIAL. Landlord shall not provide janitorial services to the
Leased Premises. Further, the Tenant shall not be provided any credit or
monetary allowance as compensation for not receiving said janitorial services.
Tenant shall, however, maintain the Premises in an acceptable condition at all
times.
11. PARKING. Landlord to provide a total of seven (7) covered/reserved
parking spaces at $35.00 per space per month throughout the term of the Lease.
12. OPERATING COSTS. The Tenant shall receive a 1998 Base Year in
determining the Tenant's responsibility regarding the payment of operating
costs.
13. CONTINUING OBLIGATIONS. Tenant hereby acknowledges and agrees that
Tenant shall remain liable for any and all of Tenant's duties and obligations
under the Lease accruing prior to the date of this Amendment, including, without
limitation, the payment of all Monthly Installments of Rent and Tenant's
Proportionate Share of Direct Expenses and taxes.
14. COUNTERPARTS. This amendment may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
15. ATTORNEYS' FEES. If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Amendment, or because of an
alleged dispute, breach, default or misrepresentation in connection with any of
the provisions of this Amendment, the successful or prevailing party, whether by
judgment or out-of-court settlement, shall be entitled to recover from the
losing party all costs and expenses incurred therein, including reasonable
attorneys' fees.
16. SEVERABILITY. If any provision of this Amendment or the application
thereof to any party or circumstance shall be determined by any court of
competent jurisdiction to be invalid or unenforceable to any extent, the
remainder of this Amendment or the application of such provision to such person
or circumstance, other than those as to which it so determined invalid or
unenforceable, shall not be affected.
17. GOVERNING LAW. This Amendment shall be deemed to have been entered
into in the State of Arizona and shall be governed by and construed in
accordance with the laws of the State of Arizona.
18. DUE AUTHORITY. Tenant hereby represents and warrants to Landlord
that this Amendment has been duly authorized and that the person executing this
Amendment on behalf of Tenant has all necessary power and authority to execute
this Amendment on behalf of Tenant and that no consent of any other person or
entity is required for the execution or performance of this Amendment.
19. EFFECT OF AMENDMENT. Except as expressly modified herein and
previously amended, the Lease shall continue in full force and effect. In the
event of any conflict between the terms of the Lease and the terms of this
Amendment, this Amendment shall control.
4
5
IN WITNESS WHEREOF, Landlord and Tenant have executed this instrument by
proper persons thereunto authorized so to do on the day and year first
hereinabove written.
TENANT: LANDLORD:
XXXXXXXX.XXX INC., FIRST XXXXXX, LLC,
an Arizona corporation a Delaware limited liability company
By: /s/ Xxxxxxx X. Northern By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------ ---------------------------------
Xxxxxxx X. Northern Xxxxxxx X. Xxxxxxxxx
Its: President Its: Vice President
Dated: February 5, 1997 Dated: February 10, 1998
--------------------------- ------------------------------
This lease proposal shall not be treated as an offer but merely as a proposal
for review purposes. This proposal shall not be valid or binding unless and
until accepted by Landlord in writing and fully executed copy delivered to both
parties hereto. This proposal is subject to withdrawal or modification by
Landlord at any time. Landlord reserves the right to offer premises
simultaneously to other third parties. Therefore, the premises may be subject to
prior leasing.
5
6
EXHIBIT "A"
(Diagram of Leased Premises)
A-1
