EX-10.1
3
dex101.htm
AMENDMENT TO
LEASE AGREEMENT
Exhibit 10.1
THIRD AMENDMENT TO
LEASE AGREEMENT
JORDAN VALLEY TECHNOLOGY CENTER
OFFICE BUILDING
TWO
THIS THIRD AMENDMENT TO
LEASE AGREEMENT (the “Amendment”) is made and entered into as of this
30th day of September, 2002, by and between XXXXX XXXXXX VALLEY 1, L.C., a Utah Limited Liability Company, (the “Landlord”), and TENFOLD CORPORATION, a Delaware Corporation (the “Tenant”), (collectively the “Parties”).
RECITALS:
A. Landlord and Tenant previously entered into a certain
Lease Agreement – Tenfold Office Building Phase I, dated April 28, 2000 and amended by the First
Amendment to
Lease Agreement dated November 30, 2000 and the Second Amendment to
Lease Agreement dated April 3, 2002 (the “Lease”) providing for the lease by Landlord to Tenant of the office building located at 698 West 10000 South in
South Jordan, Utah. Capitalized terms which are used but not defined in this Amendment shall have the same meaning as is set forth in the Lease.
B. Tenant desires to modify the Lease and reduce its rental obligations under the Lease.
C. Landlord is willing to modify the Lease strictly upon the terms and conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant
hereby agree as follows:
| | 1.
|
| INTENT OF THE PARTIES: It is the intent of
Landlord and Tenant that this Amendment extinguish any and all liabilities or obligations arising between the parties from April 28, 2000 (date of Lease Agreement) through August 31, 2002. As of the Commencement Date of this Third Amendment,
September 1, 2002, neither Landlord nor Tenant shall have any remaining financial obligation to the other pertaining to the time period from April 28, 2000 through August 31, 2002. Accordingly, all financial obligations arising between parties from
April 28, 2000 through August 31, 2002 are hereby terminated and extinguished, and the parties hereby waive all claims, whether known or unknown, against the other party or its directors, officers, employees or agents arising our of such
obligations. The ongoing obligations of the parties are modified and adjusted by this Amendment.
|
| | 2.
|
| ARTICLE 1.1(a), DESCRIPTION OF PREMISES: The
square footage of the Leased Premises shall be changed from 105,068 to 22,310 BOMA rentable square feet. The Leased Premises consists of that certain area shaded on Exhibit “B-3” which is attached hereto and by this reference incorporated
herein.
|
1
| | 3.
|
| ARTICLE 1.1(a)(ii), TENANT’S PROPORTIONATE
SHARE: This Article is deleted in its entirety and replaced with the following:
|
“Tenant’s Proportionate Share” shall mean the percentage derived from the fraction, the numerator of which is the gross rentable square
footage of the Leased Premises (22,310), the denominator of which is the gross rentable square footage of Building Two (105,068). In this Lease, Tenant’s Proportionate Share initially is 21.23%, subject to increase or decrease due to increases
or decreases in the gross rentable square footage of the Leased Premises or in Building Two.
| | 4.
|
| ARTICLE 1.1(d), NON-EXCLUSIVE PARKING: The
number of non-exclusive parking stalls shall be changed from 421 to 89 parking stalls.
|
| | 5.
|
| ARTICLE 2.1, LENGTH OF TERM: The length of
the Lease Term shall be changed from eleven (11) years to five (5) years.
|
| | 6.
|
| ARTICLE 2.2, COMMENCEMENT DATE; OBLIGATION TO PAY
RENT: The Commencement Date of this Third Amendment to Lease Agreement shall be September 1, 2002. Tenant’s obligation to pay rent herein shall commence on the Commencement Date, subject to
the provisions of paragraph 8 of this amendment. The lease termination date is August 31, 2007.
|
| | 7.
|
| ARTICLE 2.6, RENEWAL OPTION: This Article is deleted in its
entirety.
|
| | 8.
|
| ARTICLE 3.1, BASIC ANNUAL RENT: This Article
is deleted in its entirety and replaced with the following:
|
Tenant agrees to
pay to Landlord basic annual rent (the “Basic Annual Rent”) at such place as Landlord may designate, without prior demand and without any deduction or set off whatsoever. Basic Annual Rent shall be due and payable in twelve (12) equal
monthly installments to be paid in advance on or before the first day of each calendar month during the term of the Lease. Notwithstanding the foregoing, the Basic Annual Rent for the months of September and October 2002, shall be paid on or before
October 4, 2002.
Basic Annual Rent for Lease Year 1 shall consist of the sum of Two Hundred Sixty
Seven Thousand Seven Hundred Twenty and no/100 Dollars ($267,720.00) which is derived as $12.00 per rentable square foot. The Basic Annual Rent shall escalate at the beginning of the second lease year and every year thereafter by $0.50 per rentable
square foot.
| | 9.
|
| SECTION 4.1(c), ESTIMATED COSTS: Section 4.1(c) is hereby
deleted in its entirety and replaced with the following:
|
(c) “Estimated Costs” shall mean the projected amount of Tenant’s
2
Direct Costs and Tenant’s Proportionate Share of Basic Costs, excluding the
costs of electricity and ventilation/air conditioning provided to the Leased Premises, as separately metered and invoiced to Tenant. The Estimated Costs for the calendar year in which the Lease commences are $117,127.50 excluding the costs of
electricity and ventilation/air conditioning to the Leased Premises, and are not included in the Basic Annual Rent. The Estimated Costs are based on 22,310 rentable square feet and a $5.25 per rentable square foot cost.
| 10.
|
| SECTION 21.2, EXCLUSIVE RIGHTS: This article is deleted in
its entirety.
|
| 11.
|
| RELEASE OF ESCROWED FUNDS: By way of this
Amendment, Tenant releases to Landlord the remaining funds (approximately $1,491,529.04 plus accumulated interest) escrowed with Legacy Land Title Company for the payment of finish construction costs in the balance of the Building. Legacy Land Title
is authorized to release these funds to Landlord upon Landlord’s written request.
|
| 12.
|
| In the event Tenant files for bankruptcy protection under Title 11 of the United States Code during the remaining term of this Lease, Tenant agrees to assume or
reject the Lease, as amended, within the sixty (60) day post-petition period set forth in Section 365 of the Bankruptcy Code and further agrees not to seek from the applicable bankruptcy court an extension of such 60-day period.
|
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Third Amendment on the date
first set forth above.
| LANDLORD:
| | | | XXXXX XXXXXX VALLEY 1, L.C., by its
Managing Partner, The Xxxxx Company, L.C.
|
| |
| | | | | | | By:
| |
|
| | | | | | | Its:
| | H. Xxxxx Xxxxx
Chairman and Manager
|
| TENANT:
| | | | TENFOLD CORPORATION
|
| |
| | | | | | | By:
| |
|
| | | | | | | Its:
| | Xxxxxx X. Xxxxxx
Senior Vice President
and
Chief Accounting Officer
|
3
NOTARY
| STATE OF UTAH
| | )
|
| |
| | | ) ss
|
| COUNTY OF SALT LAKE
| | )
|
On this
day of September, 2002, personally appeared before me H. XXXXX XXXXX, who duly acknowledged to me that he executed the foregoing Lease Amendment as the CHAIRMAN AND
MANAGER of THE XXXXX COMPANY, L. C., A UTAH LIMITED LIABILITY COMPANY the managing partner of XXXXX XXXXXX VALLEY 1, L.C.
| |
| My commission Expires:
| | | | | |
|
|
| | | | | | Notary Public
Residing at SALT LAKE
COUNTY
|
| STATE OF UTAH
| | )
|
| |
| | | ) ss
|
| COUNTY OF SALT LAKE
| | )
|
On this
day of September, 2002, personally appeared before me XXXXXX X. XXXXXX, who being duly sworn, did say that he is the SENIOR VICE PRESIDENT AND CHIEF ACCOUNTING OFFICER
of Tenfold Corporation, a Delaware Corporation, and that said instrument was signed in behalf of said corporation by authority of its by-laws or a resolution of its Board of Directors, and said XXXXXX X. XXXXXX acknowledged to me that said
corporation executed the same.
| |
| My commission Expires:
| | | | | |
|
|
| | | | | | Notary Public
Residing at
|
4
EXHIBIT “B-3”
DESCRIPTION OF PREMISES
[Graphics
displaying floor plans of office]
