LEASE AMENDMENT NO. 1
This Lease Amendment No. 1 (this "Amendment") is
executed as of April 10, 2003, between WHWPP REAL ESTATED
LIMITED PARTNERSHIP, a Delaware limited partnership
("Landlord") and MDI TECHNOLOGIES, INC., a Missouri
corporation ("Tenant") for the purpose of amending the Lease
Agreement dated October 23, 2000 (the "Lease"). Capitalized
terms used herein but not defined shall be given the meanings
assigned to them in the Lease.
RECITALS:
WHEREAS, Tenant is currently occupying Suite 100,
containing 12,022 rentable square feet of space (the
"Premises"), in the Building located as 000 Xxxx Xxxx Xxxxx,
Xx. Xxxxx, Xxxxxxxx in that multi-building development
commonly known as West Port Plaza. The land on which the
Building is located is described on Exhibit A, attached
hereto and incorporated herein.
WHEREAS, Tenant desires to lease the storage area
commonly known as Storage Xxxx 00 (S-10), containing 215
rentable square feet of space, which is depicted on Exhibit
B, attached hereto and incorporated herein (the "Storage
Space"), and which is located in the Building.
WHEREAS, Landlord has agreed to lease the Storage Space
to Tenant on the terms and conditions contained herein.
AGREEMENTS:
For valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Landlord and Tenant agree
as follows:
1. Acceptance. Effective as of the Effective Date
(hereinafter defined), Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, the Storage Space.
Tenant acknowledges that the Storage Space shall be used for
storage only. Except as provided in the next sentence,
Tenant hereby accepts the Premises in their "AS-IS"
condition. Landlord, at its expense, shall install new door
hardware and repair/patch the hole in wall. Tenant's
obligations under the Lease, including, without limitation,
Tenant's insurance and indemnity obligations, are
incorporated herein by reference and shall be applicable to
Tenant's use and occupancy of the Storage Space. If Tenant
shall fail to perform its obligations with respect to the
Storage Space, Landlord shall be entitled to exercise all
rights and remedies available to Landlord under the Lease.
2. Effective Date. The effective date of this
Amendment shall be March 1, 2003 (the "Effective Date").
3. Term. The term for the Storage Space shall begin on
the Effective Date and shall terminate at 5:00 p.m., St.
Louis, Missouri time on January 31, 2006, unless sooner
terminated as provided in the Lease.
4. Base Rent For Storage Space. As of the Effective
Date, monthly Base Rent for the Storage Space shall be as
follows:
Lease Months Base Rent Per Month
March 1, 2003, through February 28, 2004 $152.29
March 1, 2004, through February 28, 2005 $156.77
March 1, 2005, through January 31, 2006 $161.25
5. Tenant's Proportionate Share. From and after the
Effective Date, Tenant's Proportionate Share for the Storage
Space shall be .19414%, which percentage is equal to a
fraction, the numerator of which is the number of rentable
square feet in the Premises (215) and the denominator of
which is the number of rentable square feet in the Building
(110,742). The Base Year for the Storage Space shall be
calendar year 2003. Landlord and Tenant stipulate that the
number of rentable square feet in the Storage Space and the
Building are correct.
6. Limitation of Liability. In addition to any other
limitation of Landlord's liability is contained in the Lease,
the liability of Landlord (and its partners, shareholders or
members) to Tenant (or any other person or entity claiming
by, through, or under Tenant) for any default by Landlord
under the terms of the Lease or any matter relating to or
arising out of the occupancy or
use of the Storage Space, Premises and/or other areas of the
Building shall be limited to Tenant's actual direct, but not
consequential damages therefor, and shall be recoverable only
from the interest of Landlord in the Building and Landlord
(and its partners, shareholders or members) shall not be
personally liable for any deficiency.
7. Brokerage. Landlord and Tenant each warrant to the
other that it has not dealt with any broker or agent in
connection with the negotiation or execution of this
Amendment other than Colliers Xxxxxx Xxxxxx Xxxxxx, whose
commission shall be paid by Landlord pursuant to a separate
written agreement. Tenant and Landlord shall each indemnify
the other against all costs, expenses, attorneys' fees, and
other liability for commissions or other compensation claimed
by any other broker or agent claiming the same by, through,
or under the indemnifying party.
8. Ratification. Tenant hereby ratifies and confirms
its obligations under the Lease, and represents and warrants
to Landlord that it has no defenses thereto. Additionally,
Tenant further confirms and ratifies that, as of the date
hereof, (a) the Lease is and remains in good standing and in
full force and effect, and (b) Tenant has no claims,
counterclaims, set-offs or defenses against Landlord arising
out of the Lease or in any way relating thereto or arising
out of any other transaction between Landlord and Tenant.
9. Tenant Estoppel. From time to time, Tenant shall
furnish to any party designated by Landlord, within ten (10)
business days after Landlord has made a request therefor, a
certificate signed by Tenant confirming and containing such
factual certifications and representations as to this Lease
as Landlord may reasonably request. Unless otherwise
required by Landlord's Mortgagee or a prospective purchaser
or mortgagee of the Building, the initial form of estoppel
certificate to be signed by Tenant is attached hereto as
Exhibit C.
10. Binding Effect; Governing Law. Except as modified
hereby, the Lease shall remain in full force and effect and
this Amendment shall be binding upon Landlord and Tenant and
their respective successors and assigns. If any
inconsistency exists or arises between the terms of this
Amendment and the terms of the Lease, the terms of this
Amendment shall prevail. This Amendment shall be governed by
the laws of the State of Missouri.
11. Counterparts. This Amendment may be executed in
multiple counterparts, each of which shall constitute an
original, but all of which shall constitute one document.
12. List of Exhibits. All exhibits and attachments
hereto are incorporated herein by this reference.
Exhibit A - Legal Description
Exhibit B - Depiction of Storage Space
Exhibit C - Tenant Estoppel Certificate
Exhibit D - Agency Disclosure
Executed as of the date first written above.
LANDLORD: WHWPP REAL ESTATE LIMITED
PARTNERSHIP, a Delaware
limited partnership
By: WHWPP Gen-Par, Inc., a
Delaware corporation, its
general partner
By:_________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Assistant Vice
President
TENANT: MDI TECHNOLOGIES, INC., a
Missouri corporation
By:______________________________
Name: Xxxxxx X. Xxxxxx
Title: CFO
[EXHIBITS A through D ARE IMMATERIAL AND HAVE
BEEN OMITTED.]
