Exhibit 10(d)
FIFTH AMENDMENT TO,
AND PARTIAL TERMINATION OF, LEASE AGREEMENT
THIS FIFTH AMENDMENT TO, AND PARTIAL TERMINATION OF, LEASE AGREEMENT
(the "Fifth Amendment"), is entered into as of April 1, 2004, by and between
XXXXXXXXX FIELD PARTNERS, LLC, a California limited liability company
("Landlord") and SPARKS EXHIBITS, LTD., a California corporation ("Tenant"),
with reference to the following facts:
A. Landlord and Tenant are all of the parties to that certain Lease
Agreement dated as of June 29, 1998 (the "Lease"), wherein Landlord leased to
Tenant certain real property located at 0000 Xxxxxxxxx Xxx, Xx Xxxxx,
Xxxxxxxxxx, having located thereon a single industrial building (the "Building")
containing approximately 150,159 square feet of space (the "Original Premises").
B. Subsequent to execution of the Lease, Tenant's business requirements
changed and Tenant requested that Landlord assist Tenant in locating tenants to
lease portions of the Original Premises. In accordance with Tenant's request,
Landlord previously identified (i) G.T.M. Wholesale Liquidators Inc. ("GTM") as
a prospective tenant to lease a portion of the Original Premises comprising
approximately 40,694 square feet (the "GTM Premises") and Landlord and Tenant
previously entered into (A) that certain First Amendment to Lease Agreement and
Agreement dated as of October 31, 2003 (the "First Amendment"), whereby Landlord
and Tenant agreed to mutually cooperate and undertake to pay for and perform
certain obligations with respect to the GTM Premises and (B) that certain Second
Amendment to, and Partial Termination of, Lease Agreement dated as of January 1,
2004 (the "Second Amendment"), whereby Landlord and Tenant agreed to partially
terminate the Lease with respect to the portion of the Original Premises
comprised of the GTM Premises, and (ii) Professional's Choice Sports Medicine
Products, Inc. ("Professional's Choice") as a prospective tenant to lease a
portion of the Original Premises comprising approximately 37,600 square feet
(the "Professional's Choice Premises") and Landlord and Tenant previously
entered into that certain Third Amendment to Lease Agreement and Agreement dated
as of February 27, 2004 (the "Third Amendment"), whereby Landlord and Tenant
agreed to mutually cooperate and undertake to pay for and perform certain
obligations with respect to the Professional's Choice Premises.
C. In addition, Landlord and Tenant entered into that certain Fourth
Amendment to, and Agreement to Partially Terminate Lease Agreement, dated as of
March 1, 2004 (the "Fourth Amendment"), whereby Landlord agreed to grant Tenant
an option to partially terminate the Lease further with respect to a portion of
the Original Premises comprising approximately 25,000 square feet, subject to
the performance of certain obligations and undertakings set forth in the Fourth
Amendment.
D. Upon the fulfillment and satisfaction of certain terms, provisions
and conditions set forth in the Third Amendment, Landlord and Tenant agreed to
mutually terminate the Lease with respect only to the portion of the Original
Premises which is comprised of the Professional's Choice Premises. Subject to
payment by Tenant of remaining amounts required by the Third Amendment, such
terms, provisions and conditions set forth in the Third Amendment have been
fulfilled and satisfied and, accordingly, Landlord and Tenant desire to
memorialize the partial termination of the Lease with respect to the
Professional's Choice Premises and to otherwise amend certain terms and
provisions of the Lease affected by such partial termination.
NOW, THEREFORE, in consideration of the mutual covenants, agreements
and undertakings contained in this Fifth Amendment and the exchange of other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Unless defined in this Fifth Amendment, or except as
otherwise expressly provided in this Fifth Amendment, capitalized terms utilized
in this Fifth Amendment shall have the meanings ascribed to such terms in the
Lease.
2. Mutual Partial Termination of the Lease; Effective Date. Pursuant
to, and in accordance with, Section 4 of the Third Amendment ("Section 4"),
Landlord and Tenant hereby agree and acknowledge that (i) subject to payment by
Tenant of remaining amounts required by the Third Amendment as provided in the
next sentence, all terms, provisions and conditions of Section 4 which were
required to be fulfilled and satisfied in order for the Lease to be partially
terminated have been fulfilled and satisfied, (ii) effective as of April 1, 2004
(the "Effective Date"), the Lease is partially terminated with respect only to
the portion of the Original Premises which is comprised of the Professional's
Choice Premises (the "Partial Termination"), (iii) this Fifth Amendment is
intended by Landlord and Tenant to constitute the "mutually acceptable written
instrument" referred to in Section 4 of the Third Amendment, which Section 4
contemplates is to be entered into by Landlord and Tenant partially terminating
and amending the Lease and (iv) the Lease is amended and modified in accordance
with the terms and provisions of this Fifth Amendment. Notwithstanding
Landlord's agreement with Tenant to partially terminate the Lease as of the
Effective Date, as aforesaid, Tenant shall remain obligated and liable for
Tenant's obligation to pay to Landlord Tenant's Contribution (as defined in the
Third Amendment), and if applicable, Tenant's share of certain attorneys' fees
and costs of Landlord described and set forth in Section 6 of the Third
Amendment, until Tenant shall have fully discharged and satisfied said
obligations.
3. Specific Amendments to the Lease. Effective as of the Effective
Date, the Lease is hereby amended only in the following specific respects:
3.1 Definition of Premises. The definition of the "Premises",
for all purposes of the Lease, shall refer to, and be deemed to refer to, the
Original Premises reduced by the portion of the Original Premises which
comprises the GTM Premises and the Professional's Choice Premises, consisting of
approximately 71,865 square feet, depicted in the amended Exhibit A attached to
this Fifth Amendment, which Exhibit A amends, supersedes and replaces in its
entirety, original Exhibit A to the Lease.
3.2 Parking. The requirement, in Section 1.1 of the Lease,
that the Premises contain not less than 200 parking spaces is hereby amended to
provide that the Premises shall contain not less than 96 parking spaces.
3.3 Base Monthly Rental. Base Monthly Rental, as provided in
Section 3.1 of the Lease, shall be the sum of $34,495.05 per month, and, in
accordance with Section 3.3 of the Lease, shall remain fixed throughout the
balance of the initial term of the Lease as set forth in Section 2.1 of the
Lease.
3.4 Share of Common Area Maintenance Expenses and Other
Charges. The second sentence of Section 11.2 of the Lease shall be amended in
its entirety, to provide: "Tenant shall pay to Landlord in the manner set forth
in Section 11.3 of the Lease, Tenant's prorata share of expenses in connection
with the maintenance of common areas, which shall be equal to that proportion
which the gross floor area of the Premises bears to the gross floor area in the
Building (i.e., 47.86%), plus any additional costs arising from special
requirements created by Tenant's use of the Premises".
4. Amendment; Confirmation; Interpretation. To the extent, but only to
the extent, necessary to give effect to the First Amendment, the Second
Amendment, the Third Amendment, the Fourth Amendment and this Fifth Amendment,
the Lease is deemed amended and modified. Except to the limited extent amended
and modified hereby, the Lease is ratified and confirmed in all respects and
remains extant and in full force and effect.
5. General Provisions.
5.1 Further Assurances. Each party hereto agrees to perform
any further acts and execute and deliver any further documents that may be
reasonably necessary to effectuate the provisions of this Fifth Amendment.
5.2 Counterparts; Fax Signatures. This Fifth Amendment may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
Facsimile signatures shall have the same force and effect as original
signatures.
5.3 Severability. If any provisions, or portions thereof, of
this Fifth Amendment or the application thereof are held to be unenforceable or
invalid by any court of competent jurisdiction, the remainder of this Fifth
Amendment shall not be affected thereby and to this end only the provisions of
this Fifth Amendment are declared severable.
5.4 Successors and Assigns. Subject to the provisions of
Section 5.10 of this Fifth Amendment, all terms of this Fifth Amendment shall be
binding on and shall inure to the benefit of and be enforceable by the parties
hereto and their respective heirs, legal representatives, successors and
assigns.
5.5 Governing Law; Venue. This Fifth Amendment shall be
governed by, construed and enforced in accordance with the laws of the State of
California and is to be performed in San Diego County, California and any action
or other proceeding brought to enforce or interpret this Fifth Amendment shall
be brought in San Diego County, California.
5.6 Waiver. No waiver of any of the provisions of this Fifth
Amendment shall be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver. No
failure to enforce any right or provision hereunder shall preclude or affect the
later enforcement of such right or provision. No waiver shall be binding unless
executed by the party making the waiver.
5.7 Time. Time is of the essence with respect to the
performance by each party of its rights and obligations hereunder.
5.8 Attorneys' Fees. In the event any attorney is employed by
either party to this Fifth Amendment with regard to any legal action,
arbitration or other proceeding brought by either party for the enforcement or
interpretation of this Fifth Amendment, or because of any alleged dispute,
breach, default, or misrepresentation involving any provisions of this Fifth
Amendment, the party prevailing in any such proceeding shall be entitled to
recover reasonable attorneys' fees and other costs and expenses incurred, in
addition to any other relief to which it may be entitled.
5.9 No Joint Venture. The parties hereto are independent of
one another and no joint venture, partnership or other collaborative venture is
intended or implied by the provisions of this Fifth Amendment.
5.10 Assignment. Neither party may assign this Fifth Amendment
nor any of its respective rights, liabilities and obligations under this Fifth
Amendment without the prior written consent of the other party, which may be
given or withheld in such party's sole and unreviewable discretion.
5.11 Entire Agreement. This Fifth Amendment, together with the
First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment
and the Lease, constitutes the entire agreement between the parties pertaining
to the subject matter contained in this Fifth Amendment and supersedes all prior
and contemporaneous agreements, representations and understandings of the
parties with respect thereto. There are no representations, warranties,
agreements or understandings, express or implied, written or oral between the
parties hereto relating to the subject matter of this Fifth Amendment which are
not fully expressed herein, in the First Amendment, the Second Amendment, the
Third Amendment, the Fourth Amendment and/or the Lease.
5.12 Amendment. No supplement, amendment, modification,
discharge or change of this Fifth Amendment shall be binding unless executed in
writing by all of the parties.
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5.13 Authority. If a party to this Fifth Amendment is a
corporation or other entity which is not a natural person, each individual
executing this Fifth Amendment on behalf of said corporation or other entity
represents and warrants that he is duly authorized to execute and deliver this
Fifth Amendment on behalf of said corporation or other entity in accordance with
a duly adopted resolution of the board of directors of such corporation or the
governing authority of such other entity or in accordance with the bylaws of
such corporation or governing instrument(s) of such other entity, and that this
Fifth Amendment is binding upon such corporation or other entity in accordance
with its terms.
IN WITNESS WHEREOF, the parties have executed this Fifth Amendment as
of the date first set forth above.
Landlord: Tenant:
XXXXXXXXX FIELD PARTNERS, LLC SPARKS EXHIBITS, LTD.,
a California limited liability company a California corporation
By: ____________________________ By: ________________________
[Signature] [Signature]
____________________________ ________________________
[Print Name and Title] [Print Name and Title]
