Exhibit 10.19
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT ("Amendment") is made and entered
into as of this 31 day of August, 1999, by and between XxXxxxxxx Place, L.L.C.,
an Arizona limited liability company ("Landlord"), and VistaCare, Inc. a
Delaware corporation ("Tenant").
1. RECITALS
1.1 Landlord and Tenant entered into a Lease Agreement dated April 12,
1999 (the "Lease"), wherein Landlord leased to Tenant a portion of
the Second Floor with 20,000 rentable square feet at 0000 Xxxxx
Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxx, 00000 (the "Premises"). The Lease
Agreement, as amended, is hereinafter referred to as the "Lease".
1.2 By this First Amendment to Lease Agreement, the parties desire to
further amend the Lease on the terms and conditions hereafter set
forth.
1.3 Except as specifically defined in this Amendment, all capitalized
terms shall have the same meaning as set forth in the Lease.
NOW, THEREFORE, the parties hereto, for good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, state, confirm and
agree as follows:
2. AGREEMENT
2.1 Article 1 Premises shall be and is hereby modified by:
(a) deleting all of Section 1.1 and inserting the following in
lieu thereof: "The Premises is located on the third (3rd)
floor and includes all of the occupiable space on the floor
as shown on Exhibit "A-MOD". The Rentable Area of the
Premises is estimated to be 25,774 square feet including
the Load Factor; provided, however, if the Rentable Area or
the Load Factor should be greater or less, as a result of
construction of the Building, the Premises, other premises,
or Interior Common Facilities, the Rentable Area set
forth in this Section 1.1 shall be adjusted accordingly";
(b) modifying Section 1.2 (a) (ii) by deleting the words
"multiplied by" and inserting the word "plus" in lieu thereof;
(c) deleting all of Section 1.2 (b) and inserting the following in
lieu thereof; "Useable area means the area of the Premises to
include all occupiable space on the third (3rd) floor
(excluding stairwells, elevator shafts, and vertical shafts)
computed by measuring to the exterior surface of permanent
outside walls, to the Tenant side of permanent interior
walls.";
(d) deleting all of Section 1.2 (c) and inserting the following in
lieu thereof; "Load factor means one third (1/3) of the total
area of the main lobby, elevator lobby and fire corridors
located on the first floor of the Premises."
2.2 Article 3 Rent shall be and is hereby modified by deleting the first
three (3) sentences and inserting the following in lieu thereof:
"ARTICLE 3: RENT
3.1 Beginning with the third (3rd) month of the Lease, Tenant
covenants and agrees to pay to Landlord, without deduction, setoff,
prior notice or demand, for the use and occupancy of the Premises a
minimum monthly rent of Fifty Two Thousand Six Hundred Twenty One
and 92/100 Dollars ($52,621.92) payable in advance on the first day
of each and every calendar month through thirty eighth (38th) month
of the Lease Term. Beginning with the thirty ninth (39th) month of
the Term and continuing for the next twenty four (24) months,
through the sixty second (62nd) month, Tenant agrees to pay a
Minimum Monthly Rent of Fifty Three Thousand Six Hundred Ninety Five
and 83/100 Dollars ($53,695.83) payable in advance on the first day
of each and every calendar month. Beginning with the sixty third
(63rd) month of the Term and continuing for the next twenty four
(24) months, through the eighty sixth (86th) month, Tenant agrees to
pay a Minimum Monthly Rent of Fifty Five Thousand Eight Hundred
Forty Three and 67/100 Dollars ($55,843.67)
payable in advance on the first day of each and every calendar
month."
2.3 Article 8 Security Deposit shall be and is hereby modified by
deleting the words and dollar amount "Twenty Two Thousand Nine
Hundred Eighty Seven and 04/100 Dollars ($22,897.04)" and inserting
the words and dollar amount "Thirty Four Thousand Seven Hundred
Seventy Five and 63/100 Dollars ($34,775.63)" in lieu thereof.
2.4 Rider "1" Option to Extend shall be and is hereby modified by
deleting all of Section 2 Minimum Monthly Rent During the Renewal
Term and inserting the following in lieu thereof
"2. Minimum Monthly Rent During The Renewal Term. The Minimum
Monthly Rent and Parking Rates for the First Renewal Term and the
Second Renewal Term shall be equal to the market rental rates then
being charged to new occupants of space in comparable buildings for
a comparable transaction ("Fair Market Rental Rate").
Landlord shall determine the Fair Market Rental Rate by using its
good faith judgement. Landlord shall provide written notice of such
amount within fifteen (15) days (but in no event later than twenty
(20) days) after Tenant provides the Option Notice to Landlord
exercising Tenant's option rights which require a determination of
the Fair Market Rental Rate. Tenant shall have thirty (30) days
("Tenant's Review Period") after receipt of Landlord's notice of the
new rental within which to accept such rental or to reasonable
object thereto in writing. In the event Tenant objects, Landlord and
Tenant shall attempt to agree upon such Fair Market Rental Rate
using their best good faith efforts. If Landlord and Tenant fail to
reach agreement within fifteen (15) days following Tenant's Review
Period ("Outside Agreement Date"), then Landlord or Tenant may
request an independent appraisal of the Fair Market Rental Rate.
(a) If Tenant or Landlord requests an independent appraisal,
then within thirty (30) days of the date of the request,
Landlord and Tenant shall each, at its own expense, provide
to the other the written opinion of a qualified real estate
appraiser (the "appraiser") regarding the Fair
Market Rental Rate. If the lower appraisal is at least
ninety-five percent (95%) of the higher, then the Fair Market
Rental Rate shall be the average of the two opinions.
(b) If the lower appraisal is not at least ninety five percent
(95%) of the higher, then, the appraisers shall, within ten
(10) days of the date the later opinion was provided, agree
on the appointment of a third appraiser who shall provide a
written opinion on the Fair Market Rental Rate within
fifteen (15) days of his or her appointment. The cost of
the third appraiser shall be paid by Landlord and Tenant
equally."
Brokerage Commission. If Tenant exercises its Option to Extend at
each Renewal Term, Landlord shall not be required to pay a brokerage
commission associated with such transaction.
2.5 Exhibit A to the Lease is hereby replaced in its entirety with
Exhibit "A-MOD" attached hereto.
2.6 As amended herein, all of the terms and conditions of the Lease are
hereby ratified and confirmed in their entirety.
IN WITNESS WHEREOF, the parties, have executed this Amendment as of the
date first written above.
LANDLORD:
XXXXXXXXX PLACE, L.L.C.
An Arizona limited liability company
BY: /s/ Xxxxxx X. Xxxxxxxx
________________________
Xxxxxx X. Xxxxxxxx
Its: Member
TENANT:
VistaCare, Inc.
A Delaware corporation
BY: /s/ Xxxxx Xxxxxxx
________________________
Its: CFO
EXHIBIT "A-MOD"
FLOOR PLAN
(diagram omitted)
