FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE ("First Amendment") is made this 19TH
day of JANUARY, 2000, by and between THE REALITY ASSOCIATES FUND IV, L.P., a
Delaware limited partnership, successor in interest to Cigna Real Estate Fund
T, Limited Partnership ("Landlord") and LAKOTA TECHNOLOGIES, INC., a Colorado
corporation; successor in interest to Lakota Energy, Inc. ("Tenant").
W I T N E S S E T H:
WHEREAS, Cigna Real Estate Fund T, Limited Partnership, Landlord's
immediate predecessor in interest, and Lakota Energy, Inc., Tenant's
immediate predecessor in interest, entered into that certain Lease dated
December 17, 1996 (the "Lease"), pursuant to which Tenant leased that certain
premises in Overlook I (the "Project"), 0000 Xxxxx Xxxxx Xxxx, Xxxxxxx,
Xxxxxxx 00000, said premises containing One Thousand Two Hundred Seventy
Eight (1,278) rentable square feet of space (the "Premises");
WHEREAS, Landlord and Tenant desire to amend the Lease to extend the
term and to amend certain other terms and conditions of the Lease as herein
provided.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant hereby agree to the following:
1. RECITALS. The recitals set forth above are incorporated herein
by this reference with the same force and effect as if fully set forth
hereinafter.
2. CAPITALIZED TERMS. Capitalized terms not otherwise defined
herein shall have the meaning ascribed to them in the Lease.
3. LANDLORD. All references in the Lease to Cigna Real Estate Fund
T as Landlord shall hereinafter to the Realty Associates Fund IV, L.P. which
acquired the Project.
4. TENANT. All references in the Lease to Lakota Energy, Inc. as
Tenant shall hereinafter refer to Lakota Technologies, Inc.
5. TERM. The Term of the Lease is hereby extended for three (3)
years commencing on January 15, 2000 (the "Renewal Date") and expiring
January 31, 2003 (the "Termination Date") (inclusively, the "Renewal Term")
unless sooner terminated pursuant to any provision of the Lease or hereof.
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6. BASE RENTAL. Notwithstanding anything to the contrary in the
Lease, during the Renewal Term, Tenant shall pay Base Rental for the entire
Premises to Landlord in the manner and at the times set forth in Section 5(a)
of the Lease, according to the following schedule:
Annual Monthly
Lease Period Base Rental Base Rental
------------ ----------- -----------
01/15/00-01/14/01 $25,560.00 $2,130.00
01/15/01-01/14/02 $26,326.80 $2,193.90
01/15/02-01/31/03 $27,116.64 $2,259.72
7. NOTICES. Paragraph 23 of the Lease is hereby deleted in its
entirety and the following Paragraph 23 substituted in lieu thereof:
"NOTICES: 23. Any notice required or permitted to be given
hereunder shall be in writing and may be given by certified mail,
return receipt requested, personal delivery, Federal Express or other
delivery service. If notice is given by certified mail, return
receipt requested, notice shall be deemed given three (3) days after the
notice is deposited with the U.S. Mail, postage prepaid, addressed to
Tenant or to Landlord at the address set forth below. If notice is given
by personal delivery, Federal Express or other delivery service, notice
shall be deemed given on the date the notice is actually received by
Landlord or Tenant. Either party may by notice to the other specify a
different address for notice purposes. Notwithstanding the address set
forth below for Tenant, upon Tenant's taking possession of the Premises,
the Premises shall constitute Tenant's address for notice purposes. A
copy of all notices required or permitted to be given to Landlord
hereunder shall be concurrently transmitted to such party or parties at
such addresses as Landlord may from time to time designate by notice to
Tenant.
To Landlord at: The Realty Associates Fund IV, L.P.
c/o Xxxxxxxx Xxxx Company
Five Concourse Parkway, Suite 1600
Xxxxxxx, Xxxxxxx 00000
With a Copy to: TA Associates Realty
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxxxx Xxxxxxx
8. HAZARDOUS MATERIAL. Section 7 of the of the Lease is hereby
modified by adding the following at the end of Section 7:
"For purposes of this Lease, the term "Hazardous Materials"
shall also mean any hazardous substance, hazardous waste, infectious waste,
or toxic substance, material, or waste which becomes regulated or is defined
as such by any local, state or federal governmental authority. Except for
small quantities of ordinary office supplies such as copier toners, liquid
paper, glue, ink and common household cleaning materials, Tenant shall not
cause or permit any Hazardous Material to be brought, kept or used in or
about the Premises or the Building by Tenant, its agents or employees. Tenant
hereby agrees to indemnify Landlord from and against any breach by Tenant of
the obligations stated in the preceding sentence, and agrees to defend and
hold Landlord harmless from and against any and all claims, judgments,
damages, penalties, fines, costs, liabilities, or losses (including,
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without limitation, diminution in value of the Building, damages for the loss
or restriction of use of rentable space or of any amenity of the Building,
damages arising from any adverse impact on marketing of space in the
Building, sums paid in settlement of claims, attorneys' fees, consultant fees
and expert fees) which arise during or after the term of the Lease (as the
same may be extended) as a result of such breach. This indemnification of
Landlord by Tenant includes, without limitation, costs incurred in connection
with any investigation of site conditions and any cleanup, remedial removal,
or restoration work required due to the presence of Hazardous Material caused
by Tenant, its agents or employees. Tenant shall promptly notify Landlord of
any release of a Hazardous Material in the premises or at the Building of
which Tenant becomes aware, whether caused by Tenant or any other person or
entity. The provisions of this Section 7 shall survive the termination of the
Lease."
9. COMPLIANCE WITH LAWS. The Lease is hereby modified by adding the
following Section 38:
"38. To the extent that the Landlord receives any notice from a
governmental entity that the Building is not in compliance with the
Americans with Disabilities Act ("ADA") and the Landlord is obligated
pursuant to a final determination to undertake action in order to
comply with ADA, then in such event Landlord agrees to undertake such
remedial action at Landlord's sole cost and expense. To the extent that
such notice requires action with regard solely to Tenant's particular
use of the Premises, Tenant shall be obligated to undertake such action
at Tenant's sole cost and expense."
10. TENANT IMPROVEMENTS.
a. Tenant hereby acknowledges that all obligations of Landlord
pursuant to Exhibit C and Exhibit E to the Lease have been met.
b. Landlord, at Landlord's sole cost and expense, shall touch-up
the Premises with paint where needed provided the cost of such re-painting
shall not exceed One and 00/100 Dollar per rentable spare foot of space in
the Premises. Except as provided in this Xxxxxxxxx 00, Xxxxxxxx shall have
no further obligation to make any improvements to the Premises on behalf of
Tenant.
11. BROKER. Tenant represents and warrants to Landlord that Tenant
has not had any dealings or entered into any agreements with any person,
entity, realtor, broker, agent or finder in connection with the negotiation of
this First Amendment other than Xxxxxxxx Xxxx Company. Tenant shall indemnify
and hold Landlord harmless from and against any loss, claim, damage, expense
(including costs of suit and reasonable attorneys' fees) or liability for any
compensation, commission or charges claimed by any other realtor, broker,
agent or finder claiming to have dealt with Tenant in connection with this
First Amendment.
12. REAFFIRMATION OF TERMS. Except as modified herein, all of the
terms, covenants and provisions of the Lease are hereby confirmed and
ratified and shall remain unchanged and in full force and effect.
13. REPRESENTATIONS. Tenant hereby represents and warrants to
Landlord that Tenant (i) is not in default of any of its obligations under
the Lease and that such Lease is valid, binding and enforceable in accordance
with its terms, (ii) has full power and authority to execute and perform this
First Amendment, and (iii) has taken all action necessary to authorize the
execution and performance of this First Amendment.
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14. COUNTERPART COPIES. This First Amendment may be executed in two
or more counterpart copies, each of which shall be deemed to be an original
and all of which counterparts shall have the same force and effect as if the
parties hereto had executed a single copy of this First Amendment.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First
Amendment as of the day and year first above written.
LANDLORD
The Realty Associates Fund IV, L.P.,
a Delaware limited partnership
By: Realty Associates Fund IV LLC,
a Massachusetts limited liability
company, general partner
By: Realty Associates Advisors LLC,
a Delaware limited liability
company, Manager
By: Realty Associates Advisors
Trust, a Massachusetts
business trust, sole member
By: /s/ Xxxxxx X. Xxxxxx
--------------------
By: Realty Associates Fund IV Texas
Corporation, A Texas corporation,
general partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------
TENANT: XXXXXX X. XXXXXX
REGIONAL DIRECTOR
Lakota Technologies, Inc., a Colorado
corporation
By: /s/ [illegible]
--------------------------------
Its: President
--------------------------------
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