Contract
THIRD
AMENDMENT
THIS THIRD AMENDMENT (the
"Amendment") is made and
entered into as of the 16th
day of December , 2009
by and between XXXXXX
INVESTMENT COMPANY, A California Limited Partnership ("Lessor"), and Raptor Networks Technology, Inc.
("Lessee").
RECITALS
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A.
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Lessor
and Lessee are parties to that certain lease dated September 22, 2008, as amended
February 09, 2009,
and June 23, 2009 (the "Lease"). Pursuant to
the Lease, Lessor has leased to Lessee space currently containing
approximately 2,400
square feet (the "Premises") described as 0000 X. Xxxxx Xxxxxx
located at Santa
Ana, California.
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B.
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The
Lease by its terms shall expire on March 31, 2010 ("Prior
Termination Date") and the parties desire to extend the Term of the
Lease, all on the following terms and
conditions.
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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, Lessor and Lessee agree as follows:
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I.
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Extension.
The Term of the Lease is hereby extended for a period of Six (6) months and shall
expire on September 30,
2010 ("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".
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II.
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Base
Rent. As of the Extension Date, the schedule of Base Rent payable
with respect to the Premises during the Extended Term is the
following:
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Period
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Monthly
Base Rent
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April
01, 2010 — September 30, 2010
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$1,560.00**
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**Pre-paid
for the term of this lease
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All such
Base Rent shall be payable by Lessee in accordance with the terms of the Lease.
In the event Lessee is more than ten (10) days delinquent in the payment of a
rental installment, Lessor, at Lessor's option may require all future payments
to Lessor by cashier's check or money order.
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III.
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Additional
Security Deposit. No additional security deposit shall be required
in connection with this
Amendment.
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IV.
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Property
Taxes & Insurance Premiums. For the period commencing on the
Extension Date and ending on the Extended Termination Date, Lessee shall
pay for Lessee'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 Lessee's pro-rata share of Insurance Premiums is amended
from $TBD to $ premium for the period 09/01/0909/01/10, A premium not
received at lease execution, and the Tax Base for the computation of
Lessee's pro-rata share of Real Property Taxes is amended from $TBD to
$572.52.
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V.
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Improvements
to Premises. Lessee 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.
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VI.
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Lessee's
Maintenance Obligations. Section 7.1 of the Lease shall hereby be
amended to include the following section 7.1(d)
Replacement:
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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 and including by reference herein all loading
doors, 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.
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VII.
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Insurance;
Indemnity Section 8 of the Lease shall hereby be amended to include
the following section 8.9
Failure to Provide
Insurance:
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Lessee
acknowledges that any failure on its part to obtain or maintain the insurance
required herein will expose Lessor to risks and potentially cause Lessor to
incur costs not contemplated by this Lease, the extent of which will be
extremely difficult to ascertain. Accordingly, for any month or portion thereof
that Lessee does not maintain the required insurance and/or does not provide
Lessor with the required binders or certificates evidencing the existence of the
required insurance, the Base Rent shall be automatically increased, without any
requirement for notice to Lessee, by an amount equal to 10% of the then existing
Base Rent or $100, whichever is greater. The parties agree that such increase in
Base Rent represents fair and reasonable compensation for the additional
risk/costs that Lessor will incur by reason of Lessee's failure to maintain the
required insurance. Such increase in Base Rent shall in no event constitute a
waiver of Lessee's Default or Breach with respect to the failure to maintain
such insurance, prevent the exercise of any of the other rights and remedies
granted hereunder, nor relieve Lessee of its obligations to maintain the
insurance specified in the Lease.
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VIII.
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Other
Pertinent Provisions. Lessor and Lessee 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:
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A.
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PRE-PAID RENT:
Lessee
shall submit on or before April 01, 2010, the pre-paid rental
in the amount of
$9,360.00.
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B.
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ADDITIONAL
CONDITIONS: At the later 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.
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IX.
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Miscellaneous.
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A.
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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 Lessee
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 Lessee in connection with entering
into the Lease, unless specifically set forth in this
Amendment.
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B.
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Except
as herein modified or amended, the provisions, conditions and terms of the
Lease shall remain unchanged and in full force and
effect.
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C.
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In
the case of any inconsistency between the provisions of the Lease and this
Amendment, the provisions of this Amendment shall govern and
control.
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D.
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Submission
of this Amendment by Lessor is not an offer to enter into this Amendment
but rather is a solicitation for such an offer by Lessee. Lessor shall not
be bound by this Amendment until Lessor has executed and delivered the
same to Lessee.
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E.
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Lessee
hereby represents to Lessor that Lessee has dealt with no broker in
connection with this Amendment. Lessee agrees to indemnify and hold
Lessor, its members, principals, beneficiaries, partners, officers,
directors, employees, mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively, the "Lessor
Related Parties")
harmless from all claims of any brokers claiming to have
represented Lessee in connection with this Amendment. Lessor hereby
represents to Lessee that Lessor has dealt with no broker in connection
with this Amendment. Lessor agrees to indemnify and hold Lessee, its
members, principals, beneficiaries, partners, officers, directors,
employees, and agents, and the respective principals and members of any
such agents (collectively, the "Lessee
Related Parties") harmless from all claims of any brokers claiming
to have represented Lessor in connection with this
Amendment.
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F.
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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.
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IN WITNESS WHEREOF,
Lessor and Lessee have duly executed this Amendment as of the day and
year first above written.
| LESSOR: | |||
| XXXXXX INVESTMENT COMPANY, A California Limited Partnership | |||
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By:
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/s/ H. Xxxxxx Xxxxxx, Jr. | |
| Name: H. Xxxxxx Xxxxxx, Jr. | |||
| Title: General Partner | |||
| LESSEE: | |||
| Raptor Networks Technology, Inc. | |||
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By:
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/s/ Xxx Xxxxxxxxxxxxxxx | |
| Name: Xxx Xxxxxxxxxxxxxxx | |||
| Title: Director | |||
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By:
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/s/ Xxx Xxxxxxxxxxxxxxx | |
| Name: Xxx Xxxxxxxxxxxxxxx | |||
| Title: CEO | |||
