FIRST AMENDMENT
THIS FIRST AMENDMENT is entered into on this 30th day of
December 1999, by and between XXXXXX XXXXXX PROPERTIES, LIMITED PARTNERSHIP, a
Delaware limited partnership ("Landlord") and XXXXXXX XXXXXX CORPORATION, a
Delaware corporation ("Tenant").
R E C I T A L S:
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A. Landlord and Tenant entered into that certain Lease dated August
10, 1998 (the "Lease") for space consisting of approximately 14,905 rentable
square feet located at Xxxxxx Airport Center, at 000 Xxxxx Xxxx, Xxx Xxxxx,
Xxxxxx (the "Original Premises").
B. Landlord and Tenant have agreed to expand the Original Premises by
the addition of an area containing 4,928 rentable square feet as more
specifically depicted on the floor plan attached to this First Amendment as
Exhibit "A-1" and incorporated herein by reference (the "Expansion Space").
NOW THEREFORE, based upon the covenants and promises contained herein
and other good and valuable consideration, the parties mutually agree as
follows:
1. Notwithstanding any provision to the contrary contained in the
Lease, and subject to the terms and conditions contained herein, Landlord and
Tenant agree as follows:
(a) The Lease Term as defined in Section 1.01(k) of the Lease shall be
amended to seventy-four (74) months causing a lease expiration date of March 31,
2005.
(b) The commencement date for the Expansion Space shall occur on the
earlier of (i) the date Tenant commences conducting its business in the
Expansion Space, (ii) the date the Work is substantially completed in the
Expansion Space (as defined below) or (iii) December 15, 1999, except as delayed
pursuant to this First Amendment (the "Expansion Space Commencement Date").
(c) Landlord will be deemed to have delivered possession of the
Expansion Space to Tenant on the Expansion Space Commencement Date, as it may be
adjusted pursuant to this First Amendment. Tenant acknowledges that neither
Landlord nor its agents or employees have made any representations or warranties
as to the suitability or fitness of the Expansion Space for the conduct of
Tenant's business or for any other purpose, nor has Landlord or its agents or
employees agreed to undertake any alterations or construct any tenant
improvements to the Original Premises or Expansion Space except as expressly
provided in this First Amendment. If for any reason, Landlord cannot deliver
possession of the Expansion Space to Tenant on or before the fixed date
component of the Expansion Space Commencement Date, the Lease and this First
Amendment will not be void or voidable, and Landlord will not be liable to
Tenant for any resultant loss or damage.
In the event the Expansion Space is not substantially completed by
July 1, 2000 ("Guaranteed Completion Date"), Tenant shall have the right to
terminate this First Amendment by providing Landlord with thirty (30) days prior
written notice ("Termination Notice"). If Landlord substantially completes the
Expansion Space prior to the lapse of thirty (30) days after Landlord's receipt
of the Tenant's Termination
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Notice, the Termination Notice shall become void and Tenant shall lose all
rights Tenant has to terminate this First Amendment under this Section. The
Guaranteed Completion Date shall be extended by one (1) day for each day
attributable to (a) an event of Force Majeure or (b) any Tenant Delays.
Notwithstanding the foregoing, in the event this First Amendment is
terminated, Landlord shall, within forty-five (45) days refund to Tenant the
Base Rent that has been paid to Landlord in connection with the Expansion Space.
(d) If, by the fixed date component of the Expansion Space
Commencement Date specified above, the Work has not been substantially completed
due to any cause other than Landlord's default or "Force Majeure Delays" (as
defined below), Landlord shall have no liability, and the Expansion Space
Commencement Date shall nonetheless commence as of said fixed date component of
the Expansion Space Commencement Date.
(e) If, however, the Work is not substantially completed by the fixed
date specified above due to default on the part of Landlord or Force Majeure
Delays, then as Tenant's sole remedy for the delay in Tenant's occupancy of the
Expansion Space, the fixed date component of the definition of the Expansion
Space Commencement Date shall be delayed for the period of delay in substantial
completion of the Work. The Work shall be deemed "substantially completed" when
(i) Landlord has provided reasonable access to the Expansion Space to Tenant,
(ii) Landlord has completed the Work other than punchlist items which do not
materially interfere with Tenant's use of the Expansion Space, and (iii)
Landlord has obtained a permanent or temporary certificate of occupancy for the
Expansion Space (or its equivalent). For purposes of this Section 1 "Force
Majeure Delays" shall mean and refer to a period of delay or delays encountered
by Landlord affecting the Work because of delays due to excess time in obtaining
governmental permits or approvals beyond the time period normally required to
obtain such permits or approvals for similar space within the Xxxxxx Airport
Center; fire, earthquake or other acts of God; acts of the public enemy; riot;
insurrection; public unrest; governmental regulations of the sales of materials
or supplies or the transportation thereof; strikes or boycotts; shortages of
material or labor or any cause beyond the reasonable control of Landlord.
(f) Effective as of the Expansion Space Commencement Date and during
the Lease Term:
(i) The term "Premises" shall mean the office/warehouse space
outlined on the plan attached to this First Amendment as Exhibit "A",
and incorporated herein by reference.
(ii) The term "Tenant's Rentable Square Feet" shall mean 19,833
square feet.
(g) Effective as of the Expansion Space Commencement Date and during
the Lease Term, the Base Rent for the Premises shall be as follows:
MONTHLY ANNUAL
PERIOD INSTALLMENT BASE RENT
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12/15/99 - 12/31/00: $21,816.30 $261,795.60
1/1/01 - 12/31/01: $24,791.25 $297,495.00
1/1/02 - 12/31/02: $25,584.57 $307,014.84
1/1/03 - 12/31/03: $26,179.56 $314,154.72
1/1/04 - 3/31/05: $26,774.55 $401,618.25
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(h) Effective as of the Expansion Space Commencement Date and during
the Lease Term, Tenant's Share shall be thirty-five and fifteen hundredths
percent (35.15%).
(i) Effective as of the Expansion Space Commencement Date and during
the Lease Term, Tenant shall be entitled to use an additional thirty-five (35)
unreserved uncovered parking spaces at no charge.
(j) Effective as of the Expansion Space Commencement Date, Exhibit "B"
of this First Amendment shall supersede and replace the Exhibit "B" attached to
the Lease.
(k) Tenant's Address as defined in Section 1.01 (s) of the Lease shall
be amended to: 0000 Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxxx Xxxxx, Xxxxxxxx 00000-0000,
Attention: Xxxxxxx Xxxx, and 0 Xxxxxx Xxxx, Xxx, Xxx Xxxx 00000, Attention: Xx.
Xxxxx Xxxx. With a copy to: 0 Xxxxxx Xxxx, Xxx Xxx Xxxx 00000, Attention: Xxxx
Xxxxxxx.
2. Notwithstanding any provision to the contrary contained in the Lease,
Landlord and Tenant agree as follows:
(a) WORK. Subject to subsection 2(f) below, Landlord shall, at
Tenant's expense, construct certain improvements on or about the Original
Premises and the Expansion Space (the "Work") in accordance with certain plans
and specifications referenced on Exhibit "C" attached hereto and incorporated
herein by this reference. Tenant hereby approves the plans and specifications
referenced on Exhibit "C."
(b) PRELIMINARY PLANS. If the plans and specifications referenced in
Exhibit "C" are final plans and specifications, such final plans and
specifications are hereinafter referred to as the "Final Plans," and the
remainder of this Section shall be inoperative. If the plans and specifications
referenced in Exhibit "C" are preliminary plans, Landlord shall prepare final
working drawings and outlined specifications for the Work and submit such plans
and specifications to Tenant for its approval as soon as reasonably possible
after execution of this First Amendment. Tenant shall approve or disapprove such
drawings and specifications within ten (10) days after receipt from Landlord.
Tenant shall have the right to disapprove such drawings and specifications only
if they materially differ from the plans and specifications attached hereto. If
Tenant disapproves such drawings and specifications, Landlord and Tenant shall
promptly meet in an attempt to resolve any dispute regarding such drawings and
specifications. If the parties are unable to agree upon the final working
drawings and specifications for the Work within ten (10) days, Landlord may, at
Landlord's option, either (1) terminate this First Amendment upon ten (10) days
prior written notice to Tenant, in which case neither Landlord nor Tenant shall
have further liability to the other, or (2) submit the matter to conclusive and
binding arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association to determine whether Tenant properly
disapproved the drawings and specifications, given the standard for disapproval
specified in this Section 2. Final working drawings and specifications prepared
in accordance with this subsection 2(b) approved by Landlord and Tenant are
hereinafter referred to as the "Final Plans."
(c) COMPLETION OF WORK AND EXPANSION SPACE COMMENCEMENT DATE. Landlord
and Tenant agree that the Expansion Space Commencement Date shall be the earlier
of the dates set forth in Section 1 of this First Amendment. The Work shall be
deemed "substantially completed" in accordance with the definition set forth in
Section 1 of this First Amendment.
(d) CHANGES. Landlord's obligation to prepare the Expansion Space for
Tenant's
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occupancy is limited to the completion of the Work set forth in the
plans and specifications attached hereto as Exhibit "C" or in the Final Plans.
Landlord shall not be required to furnish, construct or install any items not
shown thereon. If Tenant, however, requests in writing any change, addition or
alteration ("Changes") in such plans and specifications or in the construction
of the Work, and, if Landlord approves the proposed Changes, Landlord shall
notify Tenant of the cost to perform the Changes and Tenant and Landlord shall
mutually agree upon the amount to be paid by the Tenant for the Changes and
Tenant shall pay such amount to Landlord before Landlord shall perform the
Changes. Any delay caused by Tenant's request for any Changes or from the
construction of any Changes shall not, in any event, delay the Expansion Space
Commencement Date, which shall occur on the date it would have occurred but for
such Changes. The Work shall be the property of Landlord and shall remain upon
and be surrendered with the Premises (as defined in Section 1 of this First
Amendment) upon the expiration of the Lease Term.
(e) COST OF WORK. As used herein, cost of the Work shall mean all the
costs and charges incurred by Landlord to construct the Work, including, without
limitation, (i) the actual contractor costs and charges for material and labor,
contractor's profit, overhead and general conditions incurred by Landlord in
having the Work constructed in accordance with the Final Plans, (ii)
Governmental agency plan check, permit and other fees and sales and use taxes,
(iii) testing and inspection costs, (iv) any paint touch-up or repair work
necessary to the Premises due to Tenant's move into the Expansion Space, (v) all
other costs expended or to be expended by Landlord in the construction of the
Work including those costs incurred by Landlord for construction of elements of
the Work, which construction was performed by Landlord prior to the execution of
this First Amendment by Landlord and Tenant and which construction has been
performed for the benefit of tenants and is customarily performed by Landlord
prior to the execution of leases for such space in the Building for reasons of
economics. Examples of such construction would include the extension of
mechanical (including heating, ventilating and air conditioning systems) and
electrical distribution systems outside of the core area of the Building, wall
construction, column enclosures, and painting outside of the core of the
Building, ceiling hangar wires and window treatment.
(f) ALLOWANCE FOR COST OF WORK. In the event the cost of the Work (as
defined in subsection 2(e) above) being constructed pursuant to the Final Plans
exceeds One Hundred Forty-Seven Thousand Eight Hundred Forty Dollars and No
Cents ($147,840.00) (the "Allowance"), Tenant shall pay to Landlord the cost of
the Work in excess of the Allowance (the "Excess Cost") as provided herein. The
Excess Cost shall be paid to Landlord in cash prior to the commencement of
construction of the Work unless otherwise agreed by the parties. Any delay
caused by Tenant's failure to timely pay an Excess Cost or any cost Tenant is
responsible for paying resulting from Changes shall not, in any event, delay the
Expansion Space Commencement Date, which shall occur on the date it would have
occurred but for such delay.
(g) TENANT'S REPRESENTATIVE. Tenant has designated Xxxx Xxxx as its
sole representative with respect to the matters set forth in this First
Amendment, who shall have full authority and responsibility to act on behalf of
the Tenant as required in this First Amendment.
(h) LANDLORD'S REPRESENTATIVE. Landlord has designated Xxxxxxx Xxxxxx
as its sole representative with respect to the matters set forth in this First
Amendment, who, until further notice to Tenant, shall have full authority and
responsibility to act on behalf of the Landlord as required in this First
Amendment.
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3. Notwithstanding any provision to the contrary contained in the Lease,
Landlord represents and warrants to Tenant, and Tenant represents and warrants
to Landlord, that no broker, leasing agent or finder has been engaged in
connection with the transaction contemplated by this First Amendment. However,
in the event of any claims for brokers' or finders' fees or commissions in
connection with this First Amendment, Landlord and Tenant hereby indemnify and
hold each other harmless against any loss, claim, expense or liability with
respect to any commissions or brokerage fees claimed as a result of the
execution of this First Amendment and/or the renewal of the Lease due to any
action of the indemnifying party.
4. Except as modified herein, the Lease shall remain in full force and
effect.
5. All capitalized terms not defined herein shall have the same meaning as
defined in the Lease.
IN WITNESS THEREOF, this First Amendment has been executed on the day and
year above written.
LANDLORD: TENANT:
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XXXXXX XXXXXX PROPERTIES, XXXXXXX XXXXXX CORPORATION,
LIMITED PARTNERSHIP, a a Delaware corporation
Delaware limited partnership
By its sole general partner: By: ______________________
THE XXXXXX XXXXXX CORPORATION,
A Delaware corporation Print Name: ______________________
By:____________________________ Print Title: ______________________
Print Name:____________________
Print Title:___________________
EXHIBIT "A"
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TO FIRST AMENDMENT
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FLOOR PLAN OF PREMISES
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A-1
EXHIBIT "A-1"
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TO FIRST AMENDMENT
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FLOOR PLAN OF EXPANSION SPACE
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A-2
B-1
EXHIBIT "B"
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TO FIRST AMENDMENT
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LEGAL DESCRIPTION OF BUILDING SITE
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B-1
EXHIBIT "C"
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TO FIRST AMENDMENT
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PLANS AND SPECIFICATIONS
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The Preliminary Plans are those preliminary space plans as depicted below
that were submitted by the Tenant and shall be finalized by JMA Architecture
Studios and approved by Tenant.
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