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EXHIBIT 10.6
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the "Amendment") is made and entered
into this 15th day of September, 2000 (the "Effective Date"), by and between
Meridian Eau Claire LLC, a Wisconsin limited liability company ("Landlord"), and
Xxxxxxxxxx Technology Incorporated, a Minnesota corporation ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain Lease Agreement
dated May 1, 1996 (the "Lease") related to the premises located in the County of
Eau Claire, Wisconsin and more particularly described in the Lease. Landlord,
Tenant and The Northwestern Mutual Life Insurance Company ("Lender") are parties
to that certain Subordination, Non-Disturbance, Attornment and Estoppel
Agreement dated as of May 1, 1996, as amended (the "SNDA") in connection with a
real estate term loan (the "Loan") from Lender to Landlord.
B. Tenant is currently not in compliance with certain financial
covenant provisions set forth in the SNDA. Lender has agreed to waive such
non-compliance and amend the requirements contained in such covenant provisions
in exchange for an increase in the interest rate charged to Landlord on the
Loan. Tenant has agreed to pay additional rent to Landlord to cover the
increased interest charges incurred by Landlord.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Landlord and Tenant hereby agree
and covenant as follows:
1. DEFINITIONS. Except as otherwise provided herein, all capitalized
terms shall have the meanings set forth in the Lease.
2. INCREASED RENTAL PAYMENT. For the period commencing October 1, 2000,
and ending on the earlier of (a) the Covenant End Date or (b) the Reduction Date
(as that term is defined in the First Amendment to Real Estate Term Note between
Landlord and Lender of even date herewith (the "Note Amendment")), Tenant shall
pay to Landlord as additional rent an amount (the "Increased Rent") equal to the
increase in the Monthly Payment (as that term is defined in the Note Amendment)
over the present Monthly Payment of $140,621.46, if, as and when the Monthly
Payment increases under (x) clause (b) of Section 2 of the Note (as that term is
defined in the Note Amendment), as amended by paragraph 2(B) of the Note
Amendment and (y) Section 5(b)(i) of the Note, as amended by paragraph 2(C)(iii)
of the Note Amendment. The Increased Rent equals $10,060.97 per month for the
period commencing October 1, 2000, will increase by an additional $10,169.37 if
the Monthly Payment is increased pursuant to said Section 5(b)(i) of the Note,
and will be reduced to zero and terminated on the Reduction Date, all as
provided in the Note, as amended by paragraph 2 of the Note Amendment. The
Increased Rent shall be paid at the time and in the same manner as Basic Rent.
Tenant also agrees to pay attorney fees incurred by Landlord in the negotiation
of this Amendment and the Note Amendment or incurred by Landlord to enforce the
Lease against Tenant if Tenant subsequently breaches any financial covenant
under the SNDA, as amended.
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3. OTHER TERMS AND CONDITIONS. Except as expressly amended hereby, all
other terms and conditions of the Lease shall remain unchanged and in full force
and effect and are ratified and confirmed in all respects. This Amendment,
together with the Lease, constitutes the entire agreement between the parties
hereto with respect to the matters stated herein and may not be amended or
modified, unless such amendment or modification shall be in writing and signed
by the party against whom enforcement is sought. In the event of any conflict
between the terms, provisions and covenants of the Lease and this Amendment, the
terms, provisions and covenants of this Amendment shall supersede and govern the
actions of the parties hereto. This Amendment shall not be construed against any
party based on such party's participation in the drafting thereof and no drafts
of this Amendment proposed by or on behalf of any party, whether or not used or
used in whole or in part, shall affect the construction, interpretation or
effect of this Amendment, the Lease or any other agreement to which the parties
hereto may be a party or by which they may be bound. The terms, covenants and
conditions contained in this Amendment shall bind and inure to the benefit of
the parties hereto and their respective successors and assigns.
4. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the Effective Date.
LANDLORD: MERIDIAN EAU CLAIRE LLC
By: UW-MADISON SUPPORTING
ORGANIZATION, INC., its Sole Member
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Its: Secretary/Treasurer
TENANT: XXXXXXXXXX TECHNOLOGY INCORPORATED
By: /s/ Xxxx X.Xxxxxxxx
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Xxxx X. Xxxxxxxx
Its: Chief Financial Officer
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