FIRST AMENDMENT
TO
AMENDED AND RESTATED SUBLEASE AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED SUBLEASE AGREEMENT (this
"AMENDMENT") is made as of January 1, 2004, by and between SMITHS AEROSPACE,
INC., a Delaware corporation, f/k/a Smiths Industries Aerospace & Defense
Systems, Inc., a Delaware corporation ("SUBLANDLORD"), and X.XXXXXXX
CORPORATION, a Delaware corporation ("SUBTENANT").
RECITALS
A. Sublandlord and Subtenant entered into that certain Amended and
Restated Sublease Agreement dated as of September 1, 2000 (the "SUBLEASE") for
space in that certain building located at 00000 Xxxxxxx Xxxxx Xxxxx Xxxxx, Xxx
Xxxxx, Xxxxxxxxxx 00000, which space is more particularly described in the
Sublease and contains 12,572 square feet (the "ORIGINAL PREMISES"). The Original
Premises is depicted in Exhibit A attached hereto.
B. Subtenant has requested that Sublandlord reduce the Original Premises
by 4,830 square feet (the "REDUCTION SPACE"). The new Premises (excluding the
Reduction Space) is depicted in Exhibit B attached hereto.
C. The Term of the Sublease expired on July 31, 2003 (the "ORIGINAL
SUBLEASE EXPIRATION DATE"), but Subtenant has continued to occupy the Original
Premises subject to the terms of the Sublease. Subtenant has requested that
Sublandlord extend the Term to July 31, 2006.
D. The Parties desire to amend the Sublease to, among other things, delete
the Reduction Space from the Original Premises and extend the Term, as set forth
in this Amendment.
NOW, THEREFORE, in reliance upon the foregoing and for good and valuable
consideration, the receipt of which is hereby acknowledged, Sublandlord and
Subtenant (together, the "PARTIES" and each sometimes a "Party") agree and
hereby amend the Sublease as follows:
AGREEMENT
1. DEFINITIONS. Any term which is defined in the Sublease, and not
otherwise defined or modified in this Amendment, shall have the meaning ascribed
to it in the Sublease wherever capitalized herein. Each term defined in this
Amendment shall have its defined meaning wherever capitalized herein.
2. EFFECTIVE DATE. This Amendment shall be effective as of the Effective
Date (however, certain provisions of this Amendment shall be retroactive to the
Original Sublease Expiration Date as expressly set FORTH IN THIS AMENDMENT). THE
"EFFECTIVE DATE" IS THE DATE upon which Landlord consents to this Amendment (see
Section 17 below).
3. DEMISE OF ORIGINAL PREMISES. Effective as of the Effective Date, but
retroactive to the Original Sublease Expiration Date, Sublandlord hereby demises
and subleases to Subtenant, and Subtenant hereby accepts and subleases from
Sublandlord, the Original Premises.
4. REDUCTION OF ORIGINAL PREMISES. Effective as of the Effective Date, the
Original Premises shall be reduced to exclude the Reduction Space.
5. REDUCED PREMISES AND NEW PREMISES AREA. Effective as of the Effective
Date, the Premises shall contain a total Premises area of 7,742 square feet. The
Premises (excluding the Reduction Space) is depicted in Exhibit B attached
hereto and is not subject to verification or re-measurement.
6. EXTENSION OF TERM. Effective as of the Effective Date, but retroactive
to the Original Sublease Expiration Date, the Term of the Sublease shall be
extended by 36 months. The extended Term shall expire on July 31, 2006 (the
"EXPIRATION DATE"), unless sooner terminated in accordance with the express
provisions of the Sublease.
7. BASE RENT. Effective as of the Effective Date, but retroactive to the
Original Sublease Expiration Date, Sublandlord shall pay to Subtenant Base Rent
as follows:
---------------------------------------------------------------------------------------------------------------
TIME PERIOD ANNUAL RATE ANNUAL BASE RENT MONTHLY BASE RENT
---------------------------------------------------------------------------------------------------------------
From August 1, 2003 to $15.85 $199,266.24 $16,605.52
the Effective Date
---------------------------------------------------------------------------------------------------------------
From Effective Date to $14.40 $111,484.80 $9,290.40
the Expiration Date
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8. SUBTENANT'S PROPORTIONATE SHARE. Effective as of the Effective Date,
but retroactive to the Original Sublease Expiration Date, Subtenant shall pay to
Sublandlord Subtenant's Proportionate Share of Operating Expenses pursuant to
Section 4.2 of the Sublease; provided however, upon the Effective Date,
Subtenant's Proportionate Share shall be decreased to 7.05% to take the
Reduction Space into account.
9. SECURITY DEPOSIT. Effective as of the Effective Date, the Security
Deposit shall be increased to $18,580.80. Subtenant has already deposited, in
cash, with Sublandlord the sum of $15,337.84. Therefore, upon the Effective
Date, Subtenant shall deposit $3,243.00, in cash, with Sublandlord (such amount
hereafter referred to as the "ADDITIONAL SECURITY DEPOSIT AMOUNT").
10. SUBLANDLORD'S WORK. After the Effective Date, Sublandlord shall
install, or cause to be installed, a new demising wall that physically separates
the Premises from the Reduction Space ("SUBLANDLORD'S WORK"). Sublandlord's Work
shall be (i) completed within a reasonable period not to exceed 120 days after
the Effective Date, (ii) deemed Subtenant Alterations and (iii) shall be subject
to the terms of the Sublease and Master Lease.
11. ONSITE PARKING. Effective as of the Effective Date, Subtenant shall
have the right to use only 24 unreserved parking stalls.
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12. BROKERAGE COMMISSIONS. The Parties acknowledge that no realtor,
broker, agent or finder was involved in connection with this Amendment other
than CB Xxxxxxx Xxxxx (Attention: Xxxxx X. Xxxxxx), representing Subtenant, and
CB Xxxxxxx Xxxxx (Attention: Xxxxx Xxxxxx), representing Sublandlord
(collectively, the "Brokers") and, therefore, that no brokerage commissions or
other fees are due to any realtor, broker, agent or finder other than the
Brokers. Tenant shall hold harmless, indemnify and defend Landlord against any
claim made in connection with this Amendment by any realtor, broker, agent or
finder other than the Brokers based on an alleged act on the part of Tenant or
any of Tenant's agents or employees. Sublandlord and Subtenant acknowledge that
CB Xxxxxxx Xxxxx, Inc. represents both Parties. Sublandlord and Subtenant
confirm that they were timely advised of such dual representation and that they
consented to the same, and that they do not expect the Brokers to disclose to
either of them confidential information of the other Party.
13. DELETION OF CERTAIN PROVISIONS. Sections 5 (Option to Extend Term) and
6 (Right of First Offer) are hereby deleted from the Sublease, and such Sections
shall be of no further force and effect. Subtenant acknowledges and agrees that,
because the term of the Master Lease expires on August 31, 2006, Sublandlord
shall not (i) extend the Term of the Sublease or renew the Sublease or (ii)
consent to a holdover by Subtenant or any delay in Subtenant's surrender of the
Premises.
14. NO FURTHER AMENDMENT. Except as modified by this Amendment, the
Sublease remains in full force and effect, and unchanged.
15. ENTIRE AGREEMENT. This Amendment contains the entire agreement and
understanding of the Parties with respect to the subject matter of this
Amendment and supersedes and replaces entirely all previous oral and written
understandings or proposals.
16. COUNTERPARTS. This Amendment may be executed in multiple counterparts,
and by each Party on separate counterparts, each of which shall be deemed an
original and all of which shall constitute one and the same instrument.
17. CONSENT TO SUBLEASE BY LANDLORD. This Amendment shall be contingent
upon and shall not become operative unless and until the Landlord has given its
prior written consent to this Amendment. Sublandlord shall not be responsible
for the failure of Landlord to consent to this Amendment or the failure or
refusal of Landlord to grant any consent of Landlord required by this Amendment,
the Sublease or the Master Lease. Should the Landlord not grant its consent to
this Amendment within 30 days from the date hereof, either Party may terminate
this Amendment upon 15 days prior written notice to the other Party, and this
Amendment shall terminate at the end of such 15-day period unless Landlord
consents to this Amendment before the end of such 15-day period. If this
Amendment is terminated pursuant to the preceding sentence, Sublandlord and
Subtenant shall be released from all obligations with respect to this Amendment
and neither shall have any further rights at law or in equity with respect to
this Amendment. The Parties hereby acknowledge that Landlord's consent to this
Amendment shall not make Landlord a party to this Amendment, shall not create
any contractual liability or duty on the part of Landlord and shall not in any
manner increase, decrease or otherwise affect the rights and obligations of
Landlord, Sublandlord and Subtenant with respect to the Master Premises, the
Premises and the Sublease.
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18. SIGNERS' WARRANTY. Each individual executing or delivering this
Amendment on behalf of a Party hereby represents and warrants to the other Party
that he or she has been duly authorized and empowered to do so.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first set forth above.
"SUBLANDLORD" "SUBTENANT"
SMITHS AEROSPACE, INC., A X.XXXXXXX CORPORATION,
Delaware corporation a Delaware corporation
By: /s/ Xxxxxx X Xxxx By: /s/ Xxxxxx X. Xxxx
--------------------------------- ----------------------------------
Name: Xxxxxx X Xxxx Name: Xxxxxx X. Xxxx
---------------------------- -----------------------------
Title: Asst. Secretary Title: President & CEO
---------------------------- -----------------------------
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
-----------------------------
Title: CAO
-----------------------------
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EXHIBIT A
Original Premises
[see attached]
[FLOOR PLAN]
------- -------
INITIAL INITIAL
EXHIBIT B
Premises (excluding Expansion Space)
------------------------------------
[see attached]
EXHIBIT B
x.Xxxxxxx Corporation
[FLOOR PLAN]
------- -------
INITIAL INITIAL
