LEASE ADDENDUM NO. 3
Exhibit 10.11
LEASE ADDENDUM NO. 3
THIS LEASE ADDENDUM NO. 3 (“Addendum No. 3”) is made and executed as of this day 2 of September, 2010, by and between COTTONWOOD NEWPARK ONE, L.C., a Utah limited liability company (“Landlord”), and SKULLCANDY, INC., a Delaware corporation (“Tenant”), as an addendum to that certain Lease Agreement between Landlord and Tenant dated the 27th day of August, 2007, as amended by that certain Lease Addendum No. 1 dated the 18th day of June, 2008 and that certain Lease Addendum No. 2 dated the 21st day of July, 2010 (“Addendum No. 2”) (collectively, the “Lease”). Landlord and Tenant are sometimes collectively referred to below as the “parties.”
RECITALS:
A. Pursuant to the Lease, Tenant leased from Landlord certain commercial office space in a building (the “Building”) constructed on real property owned by Landlord located at 0000 Xxxx Xxx Xxxxxxxxx, Xxxx Xxxx, Xxxx, as more particularly described in the Lease.
B. The parties desire to modify and amend the Lease, subject to the terms and conditions of this Addendum No. 3.
NOW, THEREFORE, for and in consideration of the parties’ covenants and agreements contained herein and in the Lease, Landlord and Tenant covenant and agree as follows:
AGREEMENT:
1. Recitals. The recitals to this Addendum No. 3 are an integral part of the agreement and understanding of the parties, and are incorporated by reference in this Addendum No. 3.
2. Definitions. The definitions of certain of the capitalized terms used in this Addendum No. 3 not expressly defined in this Addendum No. 3 will have the respective meanings set forth in the Glossary of Defined Terms attached as Exhibit A to the Lease or elsewhere in the Lease.
3. Revised Expansion Date. The effective date of Tenant’s expansion of the Premises into the Third Expansion Space (as such term is defined in Addendum No. 2 is hereby accelerated from January 1, 2011 to September 1, 2010 (the “Accelerated Effective Date”) and Addendum No. 2 is hereby amended accordingly.
4. Base Rent for Third Expansion Space. Section 5 of Addendum No. 2 is hereby deleted in its entirety and is replaced with the following:
From and after the Accelerated Effective Date, Section C of Part I of the Lease is hereby amended to include the Base Rent for the Third Expansion Space as follows:
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C. Base Rent (Lease Provisions, Paragraph 5):
| Lease Year |
Monthly Base Rent | Annual Base Rent | ||||||
| Accelerated Effective Date through 10/31/10 |
$ | 4,745.07 | $ | 56,940.84 | ||||
| 11/1/10 - 12/31/10 |
$ | 0.00 | N/A | |||||
| 1/1/11 - 2/28/12 |
$ | 3,936.00 | $ | 47,232.00 | ||||
| 3/1/12 - 2/28/13 |
$ | 4,054.08 | S48,648.96 | |||||
The above Base Rent for the Third Expansion Space shall be in addition to the Base Rent for the original Premises as currently set forth in Section C of Part I of the Lease and the Base Rent for the Second Expansion Space as set forth above.
5. Operating Expenses for Third Expansion Space. Tenant shall pay Operating Expenses for the Third Expansion Space from the Accelerated Effective Date through December 31, 2010 in the amount of $1,850.00 per month for a total of $7,400.00. From and after January 1, 2011, Tenant shall pay its pro rata share of Operating Expenses as more particularly set forth in Section 6 of Addendum No. 2.
6. Broker. Landlord and Tenant each represent to the other that it has had no dealings with any real estate broker, agent or finder in connection with the negotiation of this Addendum No. 3, except for Xxxxx X. Xxxx of Sage Realty Services, L.C. (“Broker”), and that they know of no other real estate broker, agent or finder who is entitled to a commission or finder’s fee in connection with this Addendum No. 3. Each party shall indemnify, protect, defend and hold harmless the other party against all claims, demands, losses, liabilities, lawsuits, judgments, and costs and expenses (including reasonable attorney fees) for any leasing commission, finder’s fee, equivalent compensation alleged to be owing on account of the indemnifying parties’ dealings with any real estate broker, agent or finder other than the Broker. The terms of this Section 8 will survive the expiration or earlier termination of the Lease Term.
7. Other Provisions.
Tenant represents, warrants and agrees with Landlord as follows:
(a) The Lease and this Addendum No. 3 embody the entire agreement now existing with Landlord related to the Premises; and
(b) The Lease, as modified hereby, is in full force and effect; and
(c) The Lease, or any interest therein, has not been previously transferred, subleased, assigned or pledged by Tenant; and
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(d) Tenant is not aware of any default by Tenant or Landlord under either the Lease or this Addendum No. 3.
Landlord represents, warrants and agrees with Tenant as follows:
(a) The Lease and this Addendum No. 3 embody the entire agreement now existing with Tenant related to the Premises; and
(b) The Lease, as modified hereby, is in full force and effect; and
(c) Landlord is not aware of any default by Tenant or Landlord under either the Lease or this Addendum No. 3.
11. General. Without limiting any provision respecting assignment or transfer as contained in the Lease, this Addendum No. 3 shall be binding upon and inure to the benefit of the respective legal representatives, and any authorized successors and assigns of the parties. This Addendum No. 3 shall be governed by, and construed in accordance with, the laws of the State of Utah. All notices and other communications given pursuant to the Lease, as modified hereby, shall be made as provided in the Lease. Except as modified in this Addendum No. 3, the Lease is, and shall remain, in full force and effect. The Lease, as amended by this Addendum No. 3, shall not be further amended or modified except by a written instrument signed by the parties. In the event of any conflict between the terms of the Lease and this Addendum No. 3, this Addendum No. 3 shall control. The person executing this Addendum No. 3 on behalf of Tenant warrants and represents that Tenant has full right and authority to execute, deliver and perform this Addendum No. 3 and no approval or consent of any third party (other than the parties to this Addendum No. 3) is necessary to make such Addendum No. 3 effectual or otherwise valid and binding. The person executing this Addendum No. 3 on behalf of Landlord warrants and represents that: (a) Landlord is a duly organized and existing legal entity, in good standing in the State of Utah; (b) Landlord has full right and authority to execute, deliver and perform this Addendum No. 3 and no approval or consent of any third party (other than the parties to this Addendum No. 3) is necessary to make this Addendum No. 3 effectual or otherwise valid and binding; and (c) the person executing this Addendum No. 3 on behalf of Landlord was authorized to do so. This Addendum No. 3 shall not be effective or binding unless and until it is fully executed and delivered by Landlord and Tenant. This Addendum No. 3 may be executed in multiple counterparts, each of winch shall constitute an original and all of which taken together shall constitute one and the same instrument.
[Signature Page to Follow]
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DATED and effective as of the date first written above.
| TENANT: | SKULLCANDY, INC., a Delaware corporation | |||||
| By: | /s/ XXXXXX XXXXXX | |||||
| Name: | XXXXXX XXXXXX | |||||
| Title: | PRESIDENT | |||||
| Date: | 2/SEPT/2010 | |||||
| LANDLORD: | COTTONWOOD NEWPARK ONE, L.C., a Utah | |||||
| limited liability company, by its manager | ||||||
| CPM NEWPARK, L.C., a Utah limited liability company, by its manager | ||||||
| COTTONWOOD PARTNERS MANAGEMENT, LTD., a Utah limited liability company, by its following general partner, COTNET MANAGEMENT, INC., a Utah corporation | ||||||
| By: | /s/ XXXX X. XXXX | |||||
| XXXX X. XXXX, President | ||||||
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