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EXHIBIT 10.23
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("Amendment") is entered into by and
among XXXXXX FAMILY INVESTMENTS, L.L.C., a South Dakota limited liability
company ("Lessor") and XXXXXX DRUG CO., a South Dakota corporation ("Lessee")
for the purpose of amending that certain lease, dated July 1, 1997 (the
"Lease"), by and between Lessor and Lessee respecting 000 Xxxxxx Xxxx, Xxxxx
Xxxxx, Xxxxx Xxxxxx 00000 (the "Premises"), more particularly described on
Exhibit A, attached hereto and incorporated herein.
WHEREAS, Xxxxxx X. Xxxxxx, XX, sole stockholder of Lessee and managing
member of Lessor, plans to sell all of the issued and outstanding stock in
Lessee to D&K Healthcare Resources, Inc., a Delaware corporation; and
WHEREAS, Lessee and Lessor desire to amend the Lease as per their
mutual agreement respecting the same.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged by each party hereto, the parties agree to
amend the Lease as follows:
1. Section 2(b) is hereby modified by deleting the following language
from the first sentence thereof, "two (2) separate ten-year (10-year) renewal
periods", and replacing it in its entirety by the following: "one (1) five-year
(5-year) renewal period".
2. The fourth sentence of the first paragraph of Section 8 is hereby
deleted in its entirety and replaced by the following: "Except as otherwise
provided in the hereinafter entitled paragraph 'Destruction of Premises', Tenant
shall, at all times during the term hereof and at its sole cost and expense,
repair any and all damage to the premises; notwithstanding the foregoing, Tenant
shall have no obligation to make repairs to any structural member or major
system of the premises, including without limitation the exterior walls and
roofs thereof and the HVAC, plumbing or electrical systems thereof
(collectively, the "Excluded Repair Items"). The obligation to repair any and
all damage to Excluded Repair Items shall be the obligation of Landlord, who
shall, once such obligation arises, promptly begin the repairs thereto and
pursue such repairs diligently until completion."
3. The following shall be added to the end of the second paragraph of
Section 8: "Notwithstanding the foregoing, Tenant shall have no obligation to
make repairs and/or alterations to the premises required because of violation of
any governmental laws, regulations or requirements which existed on or before
June 1, 1999 (the "Excluded Alteration Items"). The obligation to alter or
repair any and all Excluded Alteration Items shall be the obligation of
Landlord, who shall, once
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such obligation arises, promptly begin the repairs thereto and pursue such
repairs diligently until completion."
4. The following shall be added as Section 37 of the Lease: "Landlord
hereby covenants and agrees that it will, on or before , ,
begin construction of an addition to the premises (the "Addition"). The Addition
shall (i) at a minimum, result in a total facility square footage, including the
existing premises, of 20,000 square feet, (ii) be constructed in accordance with
plans and specifications to be mutually agreed upon by the parties and (iii) be
constructed with materials and workmanship equal to the existing premises. All
costs and expenses associated with the construction of the Addition shall be
borne by Landlord. The Landlord shall procure or caused to be procured insurance
in commercially reasonable amounts to cover the risks normally associated with
the construction of a like building or addition, and shall indemnify, defend and
hold harmless the Tenant for any and all lost, cost and damage associated with
the construction of the Addition (but not special or consequential damages),
including and notwithstanding anything to contrary herein contained, mechanic's
liens."
5. For purposes of executing this Amendment, a document (or signature
page thereto) signed and transmitted by facsimile machine or telecopier is to be
treated as an original document. The signature of any party thereon, for
purposes hereof, is to be considered as an original signature, and the document
transmitted is to be considered to have the same binding effect as an original
signature on an original document. At the request of any party, any facsimile or
telecopy document is to be reexecuted in original form by the parties who
executed the facsimile or telecopy document. No party may raise the use of a
facsimile machine or telecopier or the fact that any signature was transmitted
through the use of a facsimile or telecopier machine as a defense to the
enforcement of this Amendment when executed in compliance with this paragraph.
6. This Amendment hereof may be executed in several counterparts and
by each party on a separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together shall constitute one
instrument. In proving this Amendment it shall not be necessary to produce or
account for more than one such counterpart signed by the party against whom
enforcement is sought.
As modified by this instrument, the Lease remains in full force and effect.
THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the 1st day of June, 1999.
XXXXXX FAMILY INVESTMENTS, L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, XX, Managing Member
XXXXXX DRUG CO.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
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Title: President
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EXHIBIT A
Lot A of Tract 2 of Sioux Empire Development Park Two Addition to the City of
Sioux Falls, Minnehaha County, South Dakota, according to the recorded plat
thereof.
