Exhibit 10.37
XXXXX PLAZA
FIRST AMENDMENT TO LEASE
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(Early Lease Termination)
I. PARTIES AND DATE
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THIS FIRST AMENDMENT TO LEASE (this "Amendment") dated as of January 31,
2006, is entered into by and between XXXXX PLAZA PROPERTY, INC., a Delaware
corporation ("Landlord"), and NETWORK INSTALLATION CORPORATION, a California
corporation ("Tenant").
II. RECITALS
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A. Landlord and Tenant entered into that certain Modified Industrial
Complex Lease dated as of July 7, 2004 (the "Lease") pursuant to which Tenant
leases certain premises commonly known as Suite 200 containing approximately
10,273 square feet (the "Premises") in that certain industrial complex known as
Xxxxx Plaza and located at 00000 Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxxxx.
B. Landlord and Tenant presently desire to provide for the early
termination of the Lease, all as more fully set forth below.
III. LEASE MODIFICATION
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A. Early Termination. Subject to the provisions of this Amendment, the
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Lease shall terminate effective as of 11:59 p.m. on February 28, 2006 (the
"Termination Date") with the same force and effect as if the Lease originally
provided for the term of the Lease to expire on the Termination Date (instead of
expiring on October 31, 2008). Tenant shall pay rent and perform Tenant's
obligation under the Lease as provided in the Lease through and including the
Termination Date. Tenant shall vacate and surrender the Premises no later than
the Termination Date in accordance with the terms of the Lease (as modified by
this Amendment). Concurrently with Tenant's execution and delivery of this
Amendment to Landlord, Tenant shall pay a termination fee to Landlord in the
amount of $38,049.81 (the "Termination Fee").
B. Security Deposit. The parties hereto acknowledge that Landlord is
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holding a security deposit in the amount of $17,105.00 Notwithstanding anything
to the contrary set forth in the Lease or in California Civil Code Section
1950.7, Landlord shall be entitled to retain the Security Deposit and Tenant
hereby waives any claim for the return of the Security Deposit pursuant to the
Lease.
C. Release. As of the Termination Date provided that Tenant has paid
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the Termination Fee to Landlord and has surrendered the Premises to Landlord in
the condition required by the Lease, each of Landlord and Tenant shall
unconditionally and fully waive, release and discharge the other party and each
such party's members, managers, officers, agents, investment advisors,
employees, successors, and assigns and all officers, directors, employees,
agents, partners or any other person or legal entity acting for or on behalf of
any of the foregoing from any and all obligations, claims, actions, liabilities,
past, present and future, of whatever kind of character, known or unknown, by
reason of, growing out of, arising out of or existing in connection with, the
execution of the Lease or any of the terms or provisions thereof, Tenant's use
and occupancy of the Premises, or by reason of the breach or alleged breach, or
conduct or activity resulting in the breach or alleged breach, of any of the
terms or provisions of the Lease. Each of Landlord Tenant acknowledges that it
is familiar with Section 1542 of the Civil Code of the State of California which
provides as follows:
A general release does not extend to claims which the creditor does not know or
suspect to exist in his or her favor at the time of executing the release, which
if known by him or her must have materially affected his or her settlement with
the debtor.
Each of Landlord and Tenant hereby waives and relinquishes every right
or benefit it may have under Civil Code Section 1542 and all other provisions of
law with respect to any such claim it may have against the other party to the
fullest extent that it may lawfully do so. In connection with such waiver and
relinquishment, each of Landlord and Tenant acknowledges that it is aware that
it may hereafter discover facts in addition to or different from those which it
now knows or believes to be true with respect of the subject matter of this
Amendment, but that it is such party's intention hereby to fully, finally and
forever settle and release all such claims, known or unknown, suspected or
unsuspected, which may now exist or which have previously existed between Tenant
and Landlord. Accordingly, each of Landlord and Tenant agrees that this
Amendment shall be and remain in effect as a full and complete release
notwithstanding the discovery or existence of any such additional or different
facts.
D. Survival. Notwithstanding the provisions of Section III.C. above,
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each of Landlord and Tenant acknowledges and agrees that the obligations of each
party set forth in the Lease which by the express terms thereof or implication
survive the termination of the Lease shall, notwithstanding the foregoing,
indeed survive the execution of this Amendment, including without limitation all
indemnifications.
E. No Assignment. Tenant represents and warrants that it has not made
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any assignment, sublease, transfer, conveyance or other disposition of (i) the
Lease; (ii) its interest in the terms of the Lease, to any person, firm,
partnership, association, or other entity. In addition, Tenant represents and
warrants that it has full power and authority to sign and deliver this
Amendment, and the execution and delivery of this Amendment will not violate and
will not constitute a default under any agreements between Tenant and any third
parties. Tenant hereby agrees to indemnify and hold harmless Landlord against
all actions, demands, liabilities, costs, expenses, rights of action or causes
of action based on, arising out of, or in connection with, any breach of any of
the foregoing representations and warranties.
IV. GENERAL
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A. Effect of Amendment; Ratification. This Amendment contains the
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entire understanding between the parties with respect to the matters contained
herein. This Amendment may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change or
modification or discharge is sought.
B. Authority. Tenant and each person executing this Amendment on
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behalf of Tenant hereby covenants and warrants that (a) Tenant is duly organized
and validly existing under the laws of the State of California, (b) Tenant has
full power and authority to enter into this Amendment and to perform all
Tenant's obligations under the Lease, as amended by this Amendment, and (c) each
person (and all of the persons if more than one signs) signing this Amendment on
behalf of Tenant is duly and validly authorized to do so.
C. Governing Law. This Amendment and any enforcement of the agreement
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and modification set forth above shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date and year first above written.
"LANDLORD"
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XXXXX PLAZA PROPERTY, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Its: President
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Dated: _____________, 2006
"TENANT"
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NETWORK INSTALLATION
CORPORATION,
a California corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: CEO
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By: ____________
Name: ____________
Title: ____________
Dated: 1-31-, 2006
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