Exhibit 10(c)
FOURTH AMENDMENT TO,
AND AGREEMENT TO PARTIALLY TERMINATE, LEASE AGREEMENT
THIS FOURTH AMENDMENT TO, AND AGREEMENT TO PARTIALLY TERMINATE, LEASE
AGREEMENT (the "Fourth Amendment"), is entered into as of March 1, 2004, by and
between XXXXXXXXX FIELD PARTNERS, LLC, a California limited liability company
("Landlord") and SPARKS EXHIBITS, LTD., a California corporation ("Tenant"),
with reference to the following facts:
A. Landlord and Tenant are all of the parties to that certain Lease
Agreement dated as of June 29, 1998 (the "Lease"), wherein Landlord leased to
Tenant certain real property located at 0000 Xxxxxxxxx Xxx, Xx Xxxxx,
Xxxxxxxxxx, having located thereon a single industrial building (the "Building")
containing approximately 150,159 square feet of space (the "Original Premises").
B. Subsequent to execution of the Lease, Tenant's business requirements
have changed and Tenant has requested that Landlord assist Tenant in locating
tenants to lease portions of the Original Premises. In accordance with Tenant's
request, Landlord previously identified (i) G.T.M. Wholesale Liquidators Inc.
("GTM") as a prospective tenant to lease a portion of the Original Premises
comprising approximately 40,694 square feet (the "GTM Premises") and Landlord
and Tenant previously entered into that certain First Amendment to Lease
Agreement and Agreement dated as of October 31, 2003 (the "First Amendment"),
whereby Landlord and Tenant agreed to mutually cooperate and undertake to pay
for and perform certain obligations with respect to the GTM Premises and that
certain Second Amendment to, and Partial Termination of, Lease Agreement dated
as of January 1, 2004 (the "Second Amendment"), whereby the Lease was partially
terminated with respect to the portion of the Original Premises which is
comprised of the GTM Premises; and (ii) Professional's Choice Sports Medicine
Products, Inc. ("Professional's Choice") as a prospective tenant to lease a
portion of the Original Premises comprising approximately 37,600 square feet
(the "Professional's Choice Premises") and Landlord and Tenant previously
entered into that certain Third Amendment to Lease Agreement and Agreement dated
as of February 27, 2004 (the "Third Amendment"), whereby Landlord and Tenant
agreed to mutually cooperate and undertake to pay for and perform certain
obligations with respect to the Professional's Choice Premises.
C. Landlord now desires to extend to Tenant an option to terminate
the Lease with respect to the portion of the Original Premises which is
comprised of approximately 25,000 square feet and is depicted in Exhibit A to
this Fourth Amendment (the "Additional Premises"), subject to the payment by
Tenant of the lump sum amount of $100,000 to Landlord (the "Additional Premises
Termination Payment") and fulfillment of all terms and conditions set forth in
this Fourth Amendment.
NOW, THEREFORE, in consideration of the mutual covenants, agreements
and undertakings contained in this Fourth Amendment and the exchange of other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Unless defined in this Fourth Amendment, or
except as otherwise expressly provided in this Fourth Amendment, capitalized
terms utilized in this Fourth Amendment shall have the meanings ascribed to such
terms in the Lease.
2. Agreement to Partially Terminate the Lease. Landlord and
Tenant hereby agree and acknowledge that subject to (i) payment by Tenant of the
Additional Premises Termination Payment in good funds to Landlord, and (ii)
Tenant's having terminated any tenancies, subtenancies or other occupancy
agreements and/or arrangements with any tenant(s) and/or occupant(s) of the
Additional Premises and all of such tenant(s) and/or occupant(s) having vacated
the Additional Premises and delivered up possession of the Additional Premises
to Tenant, Tenant shall be entitled to elect to terminate the Lease with respect
only to the portion of the Original Premises which is comprised of the
Additional Premises. If Tenant elects to partially terminate the Lease with
respect to the Additional Premises, such election shall be communicated to
Landlord in writing on or before May 1, 2004 and Landlord agrees that Tenant's
right to elect to partially terminate the Lease with respect to the Additional
Premises shall be irrevocable until the close of business on May 1, 2004,
whereupon, if Tenant shall not have so elected to partially terminate the Lease
with respect to the Additional Premises by said date, Tenant's right to so elect
to partially terminate the Lease with respect to the Additional Premises shall
expire automatically without further action of either Landlord or Tenant and
Tenant shall have no further right to so elect to partially terminate the Lease
thereafter. If Tenant shall so elect to terminate the Lease with respect to the
Additional Premises on or before May 1, 2004, as aforesaid, Tenant shall fully
comply with the requirements of this Section 2 on or before June 1, 2004. If
Tenant so complies, the date of partial termination of the Lease with respect to
the Additional Premises shall be the date upon which Tenant complies with the
last of the requirements set forth in the first sentence of this Section 2 to be
complied with by Tenant; provided, however that the requirement that Tenant pay
the Additional Premises Termination Payment in good funds to Landlord will be
deemed to have been met on the date Tenant tenders to Landlord its check in the
full amount of the Additional Premises Termination Payment, provided that such
check clears Tenant's bank when first deposited by Landlord; otherwise such
requirement will not be deemed to have been met until the date upon which
Landlord's account is credited by its bank with funds in the full amount of the
Additional Premises Termination Payment which are subject to an immediate
withdrawal right in favor of Landlord. If Tenant does not fully comply with the
requirements of this Section 2 on or before said latter date, Tenant's right to
elect to terminate the Lease with respect to the Additional Premises shall
expire automatically and Tenant shall have no further right to so elect to
partially terminate the Lease thereafter. Landlord and Tenant shall execute a
mutually acceptable written instrument acknowledging partial termination of the
Lease with respect to the Additional Premises in accordance with the provisions
set forth above in this Section 2 and agreeing to such amendments and
modifications of the Lease as are necessary and appropriate to modify Tenant's
proportionate share of shared costs and expenses as provided in the Lease, and
other matters, if any, as Landlord and Tenant shall mutually agree.
3. Amendment; Confirmation; Interpretation. To the extent, but only to
the extent, necessary to give effect to the First Amendment, Second Amendment,
Third Amendment and this Fourth Amendment, the Lease is deemed amended and
modified. Except to the limited extent amended and modified hereby, the Lease is
ratified and confirmed in all respects and remains extant and in full force and
effect.
4. General Provisions.
4.1 Further Assurances. Each party hereto agrees to perform
any further acts and execute and deliver any further documents that may be
reasonably necessary to effectuate the provisions of this Fourth Amendment.
4.2 Counterparts; Fax Signatures. This Fourth Amendment may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
Facsimile signatures shall have the same force and effect as original
signatures.
4.3 Severability. If any provisions, or portions thereof, of
this Fourth Amendment or the application thereof are held to be unenforceable or
invalid by any court of competent jurisdiction, the remainder of this Fourth
Amendment shall not be affected thereby and to this end only the provisions of
this Fourth Amendment are declared severable.
4.4 Successors and Assigns. Subject to the provisions of
Section 4.10 of this Fourth Amendment, all terms of this Fourth Amendment shall
be binding on and shall inure to the benefit of and be enforceable by the
parties hereto and their respective heirs, legal representatives, successors and
assigns.
4.5 Governing Law; Venue. This Fourth Amendment shall be
governed by, construed and enforced in accordance with the laws of the State of
California and is to be performed in San Diego County, California and any action
or other proceeding brought to enforce or interpret this Fourth Amendment shall
be brought in San Diego County, California.
4.6 Waiver. No waiver of any of the provisions of this Fourth
Amendment shall be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver. No
failure to enforce any right or provision hereunder shall preclude or affect the
later enforcement of such right or provision. No waiver shall be binding unless
executed by the party making the waiver.
4.7 Time. Time is of the essence with respect to the
performance by each party of its rights and obligations hereunder.
4.8 Attorneys' Fees. In the event any attorney is employed by
either party to this Fourth Amendment with regard to any legal action,
arbitration or other proceeding brought by either party for the enforcement or
interpretation of this Fourth Amendment, or because of any alleged dispute,
breach, default, or misrepresentation involving any provisions of this Fourth
Amendment, the party prevailing in any such proceeding shall be entitled to
recover reasonable attorneys' fees and other costs and expenses incurred, in
addition to any other relief to which it may be entitled.
4.9 No Joint Venture. The parties hereto are independent of
one another and no joint venture, partnership or other collaborative venture is
intended or implied by the provisions of this Fourth Amendment.
4.10 Assignment. Neither party may assign this Fourth
Amendment nor any of its respective rights, liabilities and obligations under
this Fourth Amendment without the prior written consent of the other party,
which may be given or withheld in such party's sole and unreviewable discretion.
4.11 Entire Agreement. This Fourth Amendment, together with
the First Amendment, Second Amendment, Third Amendment and the Lease,
constitutes the entire agreement between the parties pertaining to the subject
matter contained in this Fourth Amendment and supersedes all prior and
contemporaneous agreements, representations and understandings of the parties
with respect thereto. There are no representations, warranties, agreements or
understandings, express or implied, written or oral between the parties hereto
relating to the subject matter of this Fourth Amendment which are not fully
expressed herein, in the First Amendment, Second Amendment, Third Amendment
and/or the Lease.
4.12 Amendment. No supplement, amendment, modification,
discharge or change of this Fourth Amendment shall be binding unless executed in
writing by all of the parties.
4.13 Authority. If a party to this Fourth Amendment is a
corporation or other entity which is not a natural person, each individual
executing this Fourth Amendment on behalf of said corporation or other entity
represents and warrants that he is duly authorized to execute and deliver this
Fourth Amendment on behalf of said corporation or other entity in accordance
with a duly adopted resolution of the board of directors of such corporation or
the governing authority of such other entity or in accordance with the bylaws of
such corporation or governing instrument(s) of such other entity, and that this
Fourth Amendment is binding upon such corporation or other entity in accordance
with its terms.
IN WITNESS WHEREOF, the parties have executed this Fourth Amendment as
of the date first set forth above.
Landlord: Tenant:
XXXXXXXXX FIELD PARTNERS, LLC SPARKS EXHIBITS, LTD.,
a California limited liability company a California corporation
By: ____________________________ By: ________________________
[Signature] [Signature]
____________________________ ________________________
[Print Name and Title] [Print Name and Title]
