FIRST AMENDMENT TO MODIFIED INDUSTRIAL GROSS LEASE
Exhibit 10.17.1
FIRST
AMENDMENT TO MODIFIED INDUSTRIAL GROSS LEASE
THIS FIRST AMENDMENT TO MODIFIED INDUSTRIAL GROSS LEASE (this “Amendment”) is made as of May
28, 2009, by and between XXXXXXXXX XXXXXXXX, LLC, a California limited liability company
(“Landlord”), and ENERGY RECOVERY, INC., a Delaware corporation (“Tenant”).
RECITALS:
A. Landlord and Tenant entered into that certain Modified Industrial Gross Lease
dated as of November 25, 2008 (the “Lease”), relating to certain premises described in the
Lease.
B. Landlord and Tenant desire to amend the Lease as more fully set forth below.
C. All capitalized terms used in this Amendment shall have the respective meanings
given to them in the Lease unless otherwise defined herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the parties hereby amend the Lease on the terms hereof effective as of the date hereof,
notwithstanding anything to the contrary contained therein:
1. Insurance.
(a) The first sentence of Section 6.05 of the Lease is hereby deleted in its
entirety and replaced with the following:
“Tenant, at Tenant’s expense, shall provide and keep in force during the Term of
this Lease a policy or policies of broad form or special form property insurance, in
an amount not less than one hundred percent (100%) replacement value covering
Tenant’s merchandise, furniture, equipment, fixtures, and Tenant’s improvements that
Tenant owns or has installed at Tenant’s sole cost and expense to the Premises.”
(b) The third sentence of Section 6.07 of the Lease is hereby deleted in its
entirety and replaced with the following:
“Landlord, XxXxxxx Properties, Inc., Landlord’s successors and assigns, and any
ground lessor and/or holder of any fee or leasehold mortgage, shall be named as
additional insureds under the commercial general liability insurance policy
maintained by Tenant.”
(c) The fifth sentence of Section 6.07 of the Lease is hereby deleted in its
entirety and replaced with the following:
“Any deductible amounts under any insurance policies required to be carried by
Tenant hereunder shall be in commercially reasonable amounts.”
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(d) Section 6.09 of the Lease is hereby deleted in its entirety and replaced with the
following: “Intentionally Deleted.”
2. Parking. Section 10.06 of the Lease is hereby deleted in its entirety
and replaced with the following:
“Parking. Any monetary obligations imposed relative to parking rights with
respect to the Premises shall be considered as Tax Expenses and shall be paid by
Tenant under Section 5. Landlord grants Tenant the right to use all of the parking
spaces located in the parking area adjacent to the Building (approximately one
hundred and four (104) parking spaces), with the rules regulating the use thereof to
be established, from time to time, by Landlord. Tenant shall control Tenant’s
employees, agents, customers, visitors, invitees, licensees, contractors, assignees
and subtenants (“Tenant’s Parties”) to ensure compliance with such rules. Landlord
may take such actions or incur such cost which it deems reasonably necessary to
enforce the proper parking on the Property, including the reasonable allocation to
Tenant of all costs and expenses to do so. Tenant shall not use the areas outside of
the Premises for the placement of dumpsters, refuse collection, outdoor storage or
parking of cars and/or pickup trucks which are not in working order. Upon request,
Landlord provide Tenant with the right to use an additional one hundred and sixteen
(116) parking spaces (the “Additional Parking Spaces”). The Additional Parking
Spaces will be located as shown on Exhibit G attached (which shows a capacity for
158 parking spaces). Landlord shall provide, at Landlord’s sole cost and expense and
not as Tax Expenses, a striped parking pad as shown in substantially the condition
set forth in Exhibit G which shall include striping, lights, fencing, grading and
automatic gates for security as shown. Tenant shall be solely responsible for the
costs of permitting and constructing a corridor connecting the Premises with the
parking area, as shown on Exhibit G. If the City of San Leandro or Tenant should
determine that Tenant’s use of the Premises requires the availability of more than
two hundred twenty (220) parking spaces, Landlord shall grant Tenant the right to
use additional parking spaces as required by the City in addition to the Additional
Parking Spaces on Exhibit G. Tenant will cooperate with Landlord in petitioning the
City to reduce its parking requirements, if the parking required by the City exceeds
Tenant’s actual needs.”
3. Exhibit G. Exhibit G to the Lease is hereby deleted in its entirety and replaced
with Exhibit 1 attached to this Amendment.
4. Ratification. Except as modified by this Amendment, the Lease and all the terms,
covenants, conditions and agreements thereof are hereby in all respects ratified, confirmed
and approved.
5. Full Force and Effect. This Amendment contains the entire understanding
between the parties with respect to the matters contained herein. Except as modified by this
Amendment, the Lease shall remain unchanged and shall continue in full force and effect. No
representations, warranties, covenants or agreements have been made concerning or affecting
the subject matter of this Amendment, except as are expressly contained herein and in the Lease.
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This Amendment may not be changed orally, but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change or modification or
discharge is sought.
6. Counterparts;
Facsimile Transmission. This Amendment may be executed in any
number of identical counterparts each of which shall be deemed to be an original and all, when
taken together, shall constitute one and the same instrument. A facsimile or similar transmission
of a counterpart signed by a party hereto shall be regarded as signed by such party for purposes
hereof.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this Amendment as of the
date and year first above written.
| LANDLORD: | XXXXXXXXX XXXXXXXX, LLC, | |||||
| a California limited liability company | ||||||
| By: | /s/ Xxxxxxxx XxXxxxx | |||||
| Name: | Xxxxxxxx X. XxXxxxx | |||||
| Title: | Managing Member | |||||
| Date: | June 1, 2009 | |||||
| TENANT: | ENERGY RECOVERY, INC., | |||||
| a Delaware corporation | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
| Name: | Xxxxxxx X. Xxxxxxx | |||||
| Title: | VP and General Counsel | |||||
| Date: | June 2, 2009 | |||||
| By: | /s/ Xxxxx X. Xxxxxxx
|
|||||
| Name: | Xxxxx X. Xxxxxxx | |||||
| Title: | Director of Accounting | |||||
| Date: | June 2, 2009 | |||||
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EXHIBIT 1
EXHIBIT G
attached
Exhibit 1
