EXHIBIT 10.38
AMENDMENT NO. 1
Dated as of March 7, 1997
to
LEASE AGREEMENT
Dated as of February 14, 1995
between
Flatirons Funding, Limited Partnership,
as Lessor
and
Electronic Arts Redwood, Inc.,
as Lessee
This Amendment has been manually executed in 8 counterparts, numbered
consecutively from 1 through 8, of which this is No. 3. To the extent, if
any, that this Amendment constitutes chattel paper (as such term is defined
in the Uniform Commercial Code as in effect in any jurisdiction), no
security interest in this Amendment may be created or perfected through the
transfer or possession of any counterpart other than the original executed
counterpart which shall be the counterpart identified as counterpart No. 1.
Amendment No. 1 dated as of March 7, 1997 to Lease Agreement
("Amendment No. 1"), dated as of February 14, 1995, between Flatirons Funding,
Limited Partnership, a Delaware limited partnership ("Lessor"), and Electronic
Arts Redwood, Inc., a Delaware corporation ("Lessee"), amending the Lease
Agreement referred to below.
WHEREAS, Owner and Agent have heretofore entered into a Lease
Agreement, dated as of February 14, 1995 (the "Lease Agreement"); and
WHEREAS, Owner and Agent wish to amend the Lease Agreement as
hereinafter provided;
NOW, THEREFORE, Owner and Agent hereby agree that the Lease Agreement
is amended as follows:
1. Section 1 of the Lease Agreement is amended by deleting the
second sentence of the term "Assignee" and replacing it with the following:
"For purposes of paragraph (h) of Section 2, clauses (i), (iv) and (v) of
paragraph (f) of Section 10 and Section 11 hereof and subsection 9.6 and 12
of the Agreement for Lease, the term "Assignee" shall include any lender to
the Lessor or other Person providing credit support to the Lessor pursuant
to a Credit Agreement."
2. Subparagraph (iv) of paragraph (a) of Section 3 of the Lease
Agreement is hereby deleted and restated in its entirety as follows:
"(iv) with respect to any Property acquired and built pursuant to the
Agreement for Lease, Substantial Completion (as defined in the Agreement
for Lease) or the Designated Effective Date (as defined in the Agreement
for Lease) shall have occurred; and".
3. Section 3 of the Lease Agreement is amended by adding the
following as new paragraph (g) thereof:
"(g) In the event the Lessee failed to achieve Substantial Completion prior
to the Designated Effective Date with respect to any Parcel of Property
acquired and built pursuant to the Agreement for Lease, the Lessee may
deliver to the Lessor thereafter, but prior to Substantial Completion (as
defined in the Agreement for Lease) of such Parcel, Interim Advance
Certificates (as defined in the Agreement for Lease) and thereafter a
Certificate of Substantial Completion (as defined in the Agreement for
Lease) pursuant to the Agreement for Lease setting forth the actual amount
expended by the Lessee for items included in the Unit Budget (as defined in
the Agreement for Lease) with respect to such Parcel while it is subject to
the Agreement for Lease. If the conditions set forth in the Agreement for
Lease for Interim Advances (as defined in the Agreement for Lease) or a
Final Advance (as defined in the Agreement for Lease) are satisfied, in the
applicable case, the Lessee and the Lessor shall execute within seven (7)
days of receipt of each
1
such Interim Advance Certificate or Certificate of Substantial Completion
from the Lessee a revised AFL Unit Leasing Record to amend the Adjusted
Acquisition Cost for such Parcel to reflect the increase in the Acquisition
Cost."
4. Section 12 of the Lease Agreement is amended by revising the last
sentence of paragraph (a) thereof to read, in its entirety, as follows:
"At the time a Parcel of Property or Unit of Equipment is sold pursuant to
this Section 12, such Parcel or Unit shall be in compliance with all Legal
Requirements, shall not be subject to any Permitted Contest or any Lien
and, in the case of a Parcel which had been subject to the Agreement for
Lease, Substantial Completion (as defined in the Agreement for Lease) shall
be required to have occurred."
5. Section 18 of the Lease Agreement is amended by adding the
following as new paragraph (l) thereof:
"(l) With respect to a Parcel of Property for which Substantial Completion
has not yet been effected, the construction of such Parcel of Property for
which Substantial Completion has not yet been effected proceeds or is made
in a manner other than as provided in this Lease or the Agreement for Lease
and the Lessee fails to correct such nonconformance in a reasonably prompt
and satisfactory fashion after notice and demand by the Lessor, or the
Lessee shall fail to correct promptly any structural defect in such Parcel
of Property upon demand of the Lessor or the Agent shall default in the
performance of the covenants contained in Section 2, Section 9 or Section
10 of the Agreement for Lease in respect of any such Parcel of Property
after the expiration of any grace period applicable thereto in the
Agreement for Lease."
6. Section 23 of the Lease Agreement is amended to delete the name
"Xxxxxx X. XxXxxxxxx" and to replace it with the name "Xxxxxx Xxxxx".
7. This Amendment No. 1 may be executed in several counterparts,
each of which when executed and delivered shall be deemed an original and all of
which counterparts, taken together, shall constitute but one and the same
Amendment No. 1.
8. This Amendment No. 1 shall in all respects be governed by, and
construed in accordance with, the laws of the State of New York, including all
matters of construction, validity and performance.
9. Except as provided herein, all provisions, terms and conditions
of the Lease Agreement shall remain in full force and effect. As amended
hereby, the Lease Agreement is ratified and confirmed in all respects.
2
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No.
1 to be duly executed as of the date first above written.
Flatirons Funding, Limited Partnership
By Flatirons Capital, Inc.,
its General Partner
By: /S/ Xxxx X. Xxxxxxxxx
---------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice Prisident and Assistant Secretary
Electronic Arts Redwood, Inc.
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: President
