THIRD AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE AGREEMENT ("Amendment") is made and entered into
this 22nd day of November, 2002, by and between AMB Property, L.P., a Delaware
limited partnership ("Lessor"), and WTC Industries, Inc. a Delaware corporation
("Lessee").
WITNESSETH
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WHEREAS, Lessor and Lessee entered into a Lease Agreement dated November
30, 2000 as amended by Amendments dated February, 2001 and June 21, 2001
(hereinafter collectively referred to as the "Lease"], wherein Lessor leased to
Lessee and Lessee rented from Lessor certain Premises as defined in the Lease,
(and at times described herein as "Initial Premises"), consisting of
approximately 35,942 square feet of net rentable area in the Building (as
defined in the Lease), commonly known as 0000 Xxxxxx Xxxx, Xxxxx, Xxxxxxxxx.
WHEREAS, the Term of the Lease as set forth in the Lease was to expire on
July 31, 2006; and
WHEREAS, Lessee wishes to lease additional space contiguous to the Initial
Premises, which contiguous space consists of approximately 25,015 net rentable
square feet of area shown cross-hatched on EXHIBIT A attached hereto the
("Additional Premises") and
WHEREAS, at the special insistence and request of Lessee, Lessor has agreed
to extend the Term of the Lease and expand the Premises, and make such other
amendments to the Lease as provided below.
NOW, THEREFORE, in consideration of the mutual promises of the parties
hereto and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Lease shall be amended as follows:
1. Recitals. The above recitals shall constitute an integral part of this
Amendment.
2. Capitalized Terms. Capitalized terms set forth in this Amendment shall
have the same meaning as in the Lease, unless specifically modified and amended
herein.
3. Total Area Premises. As of February l, 2003 the total area of the
Premises defined in the Lease shall be approximately 60,957 square feet of area.
4. Term of Lease. The term of the lease for the additional premises shall
commence December l, 2002, with rent payment commencing pursuant to Article 6
listed below, and the expiration of the total area premises shall be extended
until January 31, 2008 unless earlier terminated, as provided in the lease (the
"Extended Term").
5. Lessee's Prorata Share. Lessee's share of expenses as defined in the
Lease is approximately 85.60% effective February l, 2003, up until said date,
Lessee's share of expenses shall remain at the described percentage in the
Lease.
6. Monthly Base Rent. Commencing February 1, 2003, Lessee shall pay to
Lessor as Monthly Base Rent, pursuant to the terms and conditions of the Lease:
a. Twenty one thousand one hundred eighty three and 00/100 dollars
($21,183) from February l, 2003 through July 31, 2005;
b. Twenty two thousand six hundred fifty six and 00/100 dollars ($22,656)
from August 1, 2005, through January 31, 2008.
From the date of this Amendment until February 1, 2003, Monthly Base Rent
shall be paid in accordance with the terms of the Lease.
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7. Notices. All bills, statements or notices of communications which
Lessor may desire or be required to give to Lessee shall be deemed
sufficiently given or rendered if in writing and either delivered to
Lessee personally or sent by registered or certified mail addressed to
Lessee at the Demised Premises, and at the time of the rendition
thereof of such notice or communication shall be deemed to be the time
when the same is delivered to Lessee or deposited in the mail as
herein provided. Any notice by Lessee or Lessor must be served by
registered or certified mail addressed to Lessor at the following
address:
AMB Property, L.P.
c/o CB Xxxxxxx Xxxxx, Inc.
000 Xxxxxxxxx Xxxxxx
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
WITH A COPY TO:
AMB Property Corporation
Asset Manager - Minneapolis
00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
8. Headings. Paragraph headings used in this Amendment are for
convenience only, and shall not affect the construction of this
Amendment.
9. Lessor Leasehold Improvements. Lessor agrees to construct the
leasehold improvements in accordance with the terms of Exhibit B.
attached hereto and incorporated herein.
10. Lessee's Contribution to Leasehold Improvements. Lessee agrees to pay
its share of the Leasehold Improvements in accordance with the terms
and conditions of Exhibit B.
11. Security Deposit. Upon execution of this Amendment, Lessee shall
deposit with Lessor an additional security deposit of $22,000.00, for
an aggregate total Security Deposit of $40,908.92.
12. Restoration of Premises. At the end of the Term of the Lease, Lessor
shall undertake to demolish the warehouse improvements and restore
that portion of the Premises identified as cross-hatched on the
attached Exhibit C and further described in Exhibit C-1 to its
original condition. Lessee shall pay the cost Right such demolition in
an amount not to exceed $22,000.00. Provided there are adequate funds
in Lessee's Security Deposit, Lessor shall be entitled to retain such
amount to ensure payment for such demolition. If there are not
adequate funds in Lessee's Security Deposit, Lessee shall pay
demolition costs to Lessor immediately upon demand. The restoration of
the balance of the Premises shall be per the terms and conditions of
Article 7.2(c) of the Lease.
13. First Right of Offer For Additional Space. The Lessee shall have the
following rights with respect to additional space in the Building:
(a) Upon the terms and provisions set forth in this Section, the
Lessee shall have a one time only right of "first offer" to lease
"available space" (as such term is defined in Subsection B hereof) in
the area designated in EXHIBIT "D" hereof (Expansion Area). If the
Lessee fails to exercise such right of first offer as provided herein
with regard to any part of the Expansion Area, the Lessor thereafter
may lease such space to any party or parties and upon any terms the
Lessor deems necessary or desirable.
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(b) For purposes of this Section, "first offer" shall mean a right by
the Lessee to lease such space as of the expiration of the Lessor's
lease with the existing Lessee; for purposes of this Section, space
becomes "available space" in the Building when the lease of such space
has expired or otherwise terminated, and the prior occupant of such
space has physically vacated and surrendered possession of the space
to the Lessor. Lessor will not enter into a lease extension or renewal
with existing Lessee prior to making the first offer to WTC
Industries, Inc.
(c) The Lessee may not exercise any right of first offer with respect
to less than all of the space then becoming available. The Lessee
shall exercise such right of first offer by delivering written notice
of exercise to the Lessor not later than ten (10) days following the
date of delivery by the Lessor to the Lessee of notice ("Notice of
Availability") that the space identified in the Notice of Availability
is becoming available o the expected date specified in the notice.
(d) The Lessee's tenancy of the space covered by any exercised right
of first offer shall commence and be deemed to have commenced upon the
last to occur of (i) the date availability specified in the Lessor's
Notice of Availability, or (ii) the date upon which the prior
occupancy of such space physically vacates and surrenders possession
of the space, or (iii) the thirtieth (30th) day following the date on
which the Lessor delivers such Notice of Availability.
(e) Reference herein to the Leased Premises shall, effective upon the
termination of the Lessee's tenancy of the space in question, be
deemed to include such space upon all of the same terms, covenants,
and conditions contained in this Lease, including the rental rate
which will be based on the same per square foot rent contained in this
Lease.
(f) No such right of first offer shall exist or may be exercised by
the Lessee (or if exercised, such right shall be deemed cancelled and
shall be of no force and effect) if at the time such right is claimed
by the Lessee and/or at the time the Lessee's tenancy of the space
covered by such right is otherwise to commence, the Lessee is then in
default under this Lease or this Lease is not then in full force and
effect.
(g) If, through inadvertence or error, Lessor fails to provide Lessee
with the NOTICE of AVAILABILITY when the EXPANSION AREA becomes
available space and leases the EXPANSION AREA to another tenant, then
Lessor's liability shall be limited to Lessee's actual damages in an
amount not to exceed Ten Thousand Dollars and 00/100 dollars
($10,000.00).
14. Construction. This Amendment shall be construed under the laws of the
State of Minnesota. Whenever possible, each provision of this
Amendment shall be interpreted in such manner as to be effective and
valid under applicable law. If any term or provision of this Amendment
shall to any extent be held invalid or unenforceable, the remainder
shall not be affected thereby, and each other term or provision of
this Amendment shall be valid and be enforced to the fullest extent
permitted by law.
15. Survival of Other Terms and Conditions. Except as modified herein, all
other terms and conditions of the Lease shall remain in full force and
effect, and nothing herein shall be construed to relieve either Lessor
or Lessee of any obligations as set forth herein.
16. Entire Agreement. The Lease, the prior amendments, this Amendment, and
the Exhibits attached hereto, constitute the entire understanding of
the parties hereto with respect to the transaction contemplated
thereby, and supersede all prior agreements and understandings between
the parties with respect to the subject matter. No representations,
warranties, undertakings or promises, whether oral, implied, written
or otherwise, have been made by either party hereto to the other
unless expressly stated in the above-referenced documents, or unless
mutually agreed to in writing between the parties hereto after the
date hereof, and neither party has relied upon any verbal
representations, agreements or understandings expressly set forth
herein.
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17. Option Rights. Any option rights which may have existed under the
terms of the Lease shall terminate as of the date of the execution of
this Amendment.
18. Submission of Amendment. The submission of this Amendment to Lease
Agreement for examination does not constitute a reservation of or
option for the Leased Premises, and this Amendment shall become
effectively only upon execution and delivery thereof by Lessor and
Lessee.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
LESSEE: LESSOR:
WTC INDUSTRIES, INC., AMB PROPERTY, L.P.,
A DELAWARE CORPORATION A DELAWARE LIMITED PARTNERSHIP
BY: AMB PROPERTY CORPORATION,
A MARYLAND CORPORATION
ITS GENERAL PARTNER
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Its: VP-Operations Its: Vice President
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