Exhibit 10.1
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (the "Second Amendment") is dated
October 25, 2002 (the "Effective Date"), by and between DMV SUB 2, L.P., a
Delaware limited partnership ("Landlord"), and BBJ ENVIRONMENTAL SOLUTIONS, INC.
(f/k/a BBJ CHEMICAL COMPOUNDS, INC.), a Florida corporation ("Tenant").
WITNESSETH:
WHEREAS, Corporex Properties of Tampa, Inc. ("Corporex") and Tenant are
parties to that certain Lease Agreement dated April 18, 1994 (the "Original
Lease"), for the lease of space (as more particularly described in the Lease,
the "Premises") currently containing approximately 6,964 rentable square feet
known as Suite 500 of the building known as Corporex Plaza I located at 0000
Xxxxxxxx Xxxxxxxxx, Xxxxx, Xxxxxxx 00000 (the "Building");
WHEREAS, the Original Lease was amended by an Amendment No. 1 to Lease
Agreement dated November 26, 1997 (the "First Amendment")(the Original Lease and
First Amendment are, collectively, the "Lease");
WHEREAS, Landlord is the successor in title to Corporex's right, title
and interest to the Building, Premises and Lease, and Landlord is now the holder
of all rights thereto and is now the "Landlord" under the Lease; and
WHEREAS, Landlord and Tenant desire to amend the Lease upon the terms
and conditions as hereinafter provided.
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, Landlord and Tenant
hereby agree as follows:
1. Recitals. The foregoing recitals are true and correct and are
incorporated herein by this reference. Unless otherwise indicated, all
capitalized terms used herein shall have the same meaning ascribed to such
terms in the Lease.
2. Extension of Term. The term of the Lease is hereby extended for a
period commencing on January 1, 2003, and expiring on Xxxxxxxx 00, 0000 (xxx
"Xxxxxxxxx Xxxx").
3. Annual Base Rent. Commencing on January 1, 2003, and thereafter
through the end of the Extension Term, Tenant shall pay basic rental for the
Premises as follows:
Period Annual Base Rent Monthly Base Rent
------ ---------------- -----------------
1/1/03-12/31/03 $50,489.00 $4,207.42
1 / l /04-12/31 /04 $52,021.08 $4,335.09
1/1/05-12/31/05 $53,553.16 $4,462.76
All such basic rental shall be payable by Tenant in accordance with
the terms of and in the manner described in the Lease.
4. Pro Rata Share. Throughout the Extension Term, Tenant shall
continue to pay its Pro Rata Share of common area maintenance, taxes and
assessments, and insurance for the Premises in accordance with the terms of the
Lease; provided, however, from and after the Effective Date, the second
sentence of paragraph 10(b)(2) of Schedule 1 of the Original Lease is deleted
and replaced with the following: "The above `cap' for a given calendar year
shall be calculated on a compounding basis over the actual Operating Expenses
(exclusive of taxes, insurance premiums, and utilities) for the calendar year
2002."
5. Repairs. Notwithstanding anything in the Lease to the contrary,
from and after the Effective Date, Tenant shall be responsible for all costs of
repair or maintenance of the base building HVAC system serving the Premises;
provided, however, notwithstanding anything in this Section 5 or the Lease to
the contrary, Landlord shall be responsible for capital repairs to or
replacement of the base building HVAC system serving the Premises that exceed
$750.00 per occurrence per unit, unless said repair or replacement resulted
from Tenant's failure to provide proper preventative maintenance, or Tenant's
negligence, recklessness, or willful misconduct. In addition, Tenant shall be
solely responsible for all repair, maintenance, and replacement obligations and
costs relating to Tenant's supplemental Liebert HVAC unit located within the
Premises.
6. Tenant Improvement Allowance. Landlord will commence construction
of certain improvements (the "Tenant Improvements") to the Premises, which
Tenant Improvements will be completed in accordance with plans and
specifications approved by Landlord and Tenant (the "Plans"). The costs of
completing the Tenant Improvements will be paid by Landlord, subject to
reimbursement from the Tenant Improvement Allowance (as defined below);
provided, however, Landlord is not obligated to pay or incur any costs that
exceed the Tenant Improvement Allowance. If the costs of completing the Tenant
Improvements exceeds the Tenant Improvement Allowance, Tenant shall pay such
excess costs to Landlord within fifteen (15) days after receipt of an invoice
therefor; provided, however, any such reimbursement by Tenant shall under no
circumstances be considered or deemed to be rent of any kind, but rather a
reimbursement of Landlord for such excess costs, and Landlord shall have no
right to recover possession of the leased premises for non-payment of any such
amounts. Any work desired by Tenant other than the Tenant Improvements, such as
furniture, fixturing, and telecommunications and computer cabling, shall be
performed by Tenant, at Tenant's sole expense, using contractors and pursuant
to plans approved by Landlord and in accordance with the alterations provisions
of the Lease.
The Tenant Improvements shall be deemed substantially completed
("Substantial Completion") on the date Landlord substantially completes the
Tenant Improvements in accordance with the Plans and obtains a certificate of
occupancy for the Tenant Improvements. If Substantial Completion of the Tenant
Improvements is delayed due to any act or omission of Tenant or Tenant's
representatives (a "Tenant Delay"), Landlord will be deemed to have achieved
Substantial Completion of the Tenant Improvements on the date when they would
have been ready but for such Tenant Delay.
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Landlord shall provide to Tenant a tenant improvement allowance in the
amount of Three Thousand and No/100ths Dollars ($3,000.00)(the "Tenant
Improvement Allowance") to be credited against Landlord's costs (including,
without limitation, construction management fees not to exceed 5%) of
designing, constructing and installing the Tenant Improvements (the "Costs").
7. Parking. During the Extension Term, and notwithstanding anything in
the Lease to the contrary, Tenant shall have the non-exclusive use of up to
thirteen (13) unreserved parking spaces at no charge to the Tenant. These
unreserved parking spaces shall be in the parking areas described in the Lease
and shall otherwise be governed by the terms and conditions of Section C(5)(g)
of the Original Lease. Tenant agrees that its use of such parking facilities
shall not exceed the number of spaces provided in this paragraph.
8. Brokers. Landlord and Tenant each represent to the other that there
have been no brokers involved in connection with this Second Amendment other
than Xxxxxxxx Xxxx Realty Services, Inc. and Xxxxxxxx-Xxxxx Properties
(collectively, the "Brokers"), and that no other broker has negotiated or
participated in negotiations of this Second Amendment or submitted or showed
the Premises, or is entitled to any commission in connection therewith. Tenant
shall indemnify and hold Landlord harmless from and against any and all
commissions, fees and expenses and all claims therefore, by any other broker,
salesman or other party (other than Xxxxxxxx-Xxxxx Properties) in connection
with or arising out of Tenant's action in entering into this Second Amendment.
Landlord shall indemnify and hold Tenant harmless from and against any and all
commissions, fees and expenses and all claims therefore, by any other broker,
salesman or other party in connection with or arising out of Landlord's action
in entering into this Second Amendment. Landlord shall be responsible for
paying the Brokers' commissions pursuant to separate agreement(s).
9. Notice Addresses. All notices to Landlord must be in writing and
shall be deemed to be duly given only if sent by registered or certified mail,
return receipt requested or overnight delivery service to the following
addresses:
c/o Lend Lease Real Estate Investments
Monarch Tower
0000 Xxxxxxxxx Xx., XX, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Asset Manager-Presidents Plaza
With a copy to:
Xxxxxxxx Xxxx Company
000 X. Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxx
10. Ratification. Except as expressly modified herein, the Lease shall
remain in full force and effect, and the terms thereof are hereby ratified and
confirmed.
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11. Acknowledgments. As of the date of this Second Amendment and to
Tenant's actual knowledge, (a) no default exists on the part of Landlord or
Tenant under the Lease, (b) no circumstance currently exists that, but for the
giving of notice or the passage of time, or both, would be such a default, and
(c) Tenant does not now have or hold any claim or defense against Landlord that
might be set off or credited against future accruing rents or that might
otherwise excuse Tenant's performance under the Lease.
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amendment as of the date and year first above written.
Signed, sealed and delivered in the presence of:
Name: /s/ Xxxxx Xxxxxxx
-----------------
Name: /s/ Xxxx Xxxxxxxx
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DMV SUB 2, L.P., a Delaware limited partnership
By: DMV GP2, LLC, a Delaware limited liability company, its general partner
By: DMV Investors, LLC, a Delaware limited liability company, its sole
member
By: Lend Lease Real Estate Investments, Inc., a Delaware corporation, its
manager
By: /s/ Xxxxxxx Xxxxxx
------------------
Title: Principal
("Landlord")
BBJ ENVIRONMENTAL SOLUTIONS, INC. (f/k/a BBJ CHEMICAL COMPOUNDS, INC.), a
Florida corporation
By: /s/ Xxxxxx X Xxxxx
------------------
Title: CEO
Name: /s/ Xxxxx X. Xxxxxxxxx
----------------------
Name: /s/ Xxx Xxxxxx
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("Tenant")
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