EXHIBIT 5.1
FIRST AMENDMENT TO LEASE AGREEMENT
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This FIRST AMENDMENT TO LEASE AGREEMENT (this "Amendment") is made and
entered into as of May 2, 2007 by and between JNL REAL ESTATE, LLC, a
Pennsylvania limited liability company ("JNL"), EASTWOOD ASSOCIATES, LLC, a
Pennsylvania limited liability company ("Eastwood"), and HBL HOLDINGS, LLC, a
Pennsylvania limited liability company ("HBL"), collectively trading and doing
business as 000 XXXXXXXXX XXXXXXXXX JOINT VENTURE ("Lessor"), and CIMNET, INC.,
a Delaware corporation ("Lessee") (hereinafter sometimes collectively referred
to as the "Parties"). Capitalized terms used and not otherwise defined herein
shall have the respective meanings set forth in the Lease (defined below).
W I T N E S S E T H:
WHEREAS, JNL, Eastwood, HBL, Lessor and Lessee entered into a Lease
Agreement dated January 24, 2007 (the "Lease"), covering the premises located at
000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxxxx 00000, as more
fully described in the Lease (the "Leased Premises"); and
WHEREAS, The Parties desire to amend the Lease on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, the Parties hereby agree as follows:
1. Option to Terminate. Notwithstanding anything in the Lease to
the contrary, the Parties agree that effective at any time on or after January
31, 2010, Lessee shall have the right and option to terminate the Lease (the
"Termination") by (i) delivery of no less than six (6) months advance written
notice to Lessor (the "Termination Notice"), and (ii) payment to Lessor, on the
date of the Termination (which shall be set forth in the Termination Notice and
shall be the last day of a month) of the Termination Fee. For purposes of this
Amendment, the "Termination Fee" shall equal $400,000 if the Termination occurs
on January 31, 2010, such amount to be reduced by $8,333.33 for each month that
passes thereafter without the occurrence of the Termination. Notwithstanding the
foregoing, at no point will the Termination Fee be reduced below $160,000. For
illustrative purposes, the sliding scale applicable to the Termination Fee is
attached hereto as Exhibit A.
2. Assignment and Subletting. Section 6 of the Lease is amended
as follows:
2.1 The introductory paragraph in Section 6 of the Lease is hereby
deleted and replaced with the following:
"Negative Covenants of Lessee. Lessee covenants and agrees
that it will do none of the following things without first
obtaining the consent, in writing, of Lessor, which consent
Lessor shall not unreasonably withhold, condition or delay,
and without providing Lessor with reimbursement for any
reasonable expenses incurred or incidental to Lessee's
proposed action."
2.2 Paragraph (b) of Section 6 of the Lease is hereby amended by
adding the following at the end of such paragraph (b) of Section 6:
"Notwithstanding anything herein to the contrary, Lessor's
consent shall not be required in the event of any assignment
or subletting by Lessee to: (i) any "Affiliate" (defined for
the purposes of this Lease as any entity controlling,
controlled by, or under common control with Lessee), or (ii)
any third party, provided that (a) such third party (or a
guarantor that has agreed to guarantee the obligations of such
third party) has net profit in excess of $1,500,000 for the
most recently reported 12-month period, and (b) Lessee
provides Lessor prior written notice of the assignment or
subletting at least twenty (20) days prior to the effective
date thereof, together with the relevant financial data of
such third party. In the case of either Lessee subletting the
Leased Premises or an assignment pursuant to clause (i) above,
Lessee shall remain responsible for all of its obligations
arising under the Lease. In the case of a valid assignment
pursuant to clause (ii) above, Lessor shall be deemed
unconditionally released from all of its obligations arising
under the Lease."
3. Subordination, Non-Disturbance and Attornment. Lessor
represents to Lessee that as of the date of this Amendment the Premises is
encumbered by a mortgage in favor of the Lessor's lender (the "Security Deed")
and that Lessor is the fee simple owner of the Premises. Lessee agrees that the
Lease (as amended hereby) is and shall remain subject and subordinate to such
Security Deed; provided, however, that as a part of such subordination and on
the Lease Amendment Effective Date (as defined in Section 8 of this Amendment),
Lessor, Lessee and Lessor's lender shall enter into said lender's standard,
commercially reasonable form of Subordination, Non-Disturbance and Attornment
Agreement ("SNDA"), provided that (i) such form is acceptable to Lessee in its
reasonable discretion, and (ii) except for the subordination of this Lease to
the Security Deed, such SNDA does not impair Lessee's rights or remedies or
increase Lessee's obligations under the Lease. In the event that, following the
date of this Amendment, Lessor desires to refinance the debt secured by the
Security Deed, or otherwise encumber the Premises with a deed to secure debt,
deed of trust, mortgage or other similar instrument, Lessee agrees to
subordinate this Lease to such instrument provided that Lessor, Lessee and
Lessor's lender enter into said lender's standard, commercially reasonable form
of SNDA, provided that (i) such form is acceptable to Lessee in its reasonable
discretion, and (ii) except for the subordination of this Lease to the
applicable financing, such SNDA does not impair Lessee's rights or remedies or
increase Lessee's obligations under the Lease.
4. Memorandum of Lease. Upon request by any of the Parties, the
Parties each agree to execute a Memorandum of Lease in recordable form, setting
forth such provisions of the Lease (as amended hereby) as may be required by
Pennsylvania law. If so requested by Lessee, Lessor shall execute such
Memorandum of Lease simultaneously with the execution of this Amendment.
Recording costs, together with any transfer taxes or other fees charged by any
local or state governmental authorities in connection with such recordation,
shall be borne by the party requesting recordation of same. The provisions of
the Lease (as amended hereby) shall control with regard to any omissions from,
or provisions which may be in conflict with, the Memorandum of Lease.
5. Improvements and/or Alterations. Paragraph (b) of Section 18
of the Lease is hereby amended and restated as follows: "Upon written consent by
Lessor, Lessee may erect or make all improvements and/or alterations to the
Premises which are reasonably necessary to Lessee's business. Upon expiration or
sooner termination of this Lease, Lessee covenants and agrees that Lessee will
remove (at the request of Lessor) all improvements and/or alterations made by
Lessee and restore the Premises to the same or substantially the same condition
existing before Lessee made such improvements and/or alterations, such removal
and/or restoration costs to be borne solely by Lessee."
6. No Further Amendment. Except as expressly modified herein, the
terms and conditions of the Lease shall remain unchanged and in full force and
effect.
7. Counterparts. This Amendment may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties. Signatures on this Amendment and
certain other documents to be delivered in connection with this Agreement may be
delivered by facsimile in lieu of an original signature, and the Parties agree
to treat such signatures as original signatures and shall be bound thereby.
8. Execution; Condition to Amendment. The Parties have executed
this Amendment simultaneously with the execution of that certain Agreement and
Plan of Merger (the "Merger Agreement") by and between Invensys Systems, Inc.,
Sidus Acquisition Corp., and Lessee. Notwithstanding anything in this Amendment
to the contrary, the Parties agree and acknowledge that this Amendment shall
become effective only upon the Closing of the transactions contemplated by the
Merger Agreement, and that this Amendment shall be deemed effective as of the
Effective Time of the Merger (the "Lease Amendment Effective Date"). In the
event that the Merger Agreement is terminated, this Amendment shall immediately
become null and void and of no force or effect, without need for any further
documentation.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Parties have executed this Amendment as of the
date first written above.
LESSOR:
000 XXXXXXXXX XXXXXXXXX JOINT VENTURE
by and through:
JNL REAL ESTATE, LLC
By: /s/ XXXX X. XXXXXXXXXX, III
---------------------------------
Name: Xxxx X. Xxxxxxxxxx, III
Title: Manager
By /s/ XXXX X. XXXXXXXXXX
---------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Manager
EASTWOOD ASSOCIATES, LLC
By: /s/ XXXXX XXXXXXXX
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: Manager
By: /s/ XXXXXX XXXXX
---------------------------------
Name: Xxxxxx Xxxxx
Title: Manager
By: /s/ XXXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Manager
By: /s/ XXXXX X. XXXXXXXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
. Title: Manager
HBL HOLDINGS, LLC
By: /s/ XXXXXXX X. XXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager
LESSEE:
CIMNET, INC.
By: /s/ XXXX X. XXXXXXXXXX, III
------------------------------------
Name: Xxxx X. Xxxxxxxxxx, III
Title: President and CEO
Exhibit A
Termination Fee Sliding Scale
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Termination Date Termination Fee
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January 31, 2010 $400,000.00
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February 28, 2010 $391,666.67
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March 31, 2010 $383,333.34
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April 30, 2010 $375,000.01
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May 31, 2010 $366,666.68
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June 30, 2010 $358,333.35
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July 31, 2010 $350,000.02
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August 31, 2010 $341,666.69
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September 30, 2010 $333,333.36
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October 31, 2010 $325,000.03
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November 30, 2010 $316,666.70
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December 31, 2010 $308,333.37
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January 31, 2011 $300,000.04
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February 28, 2011 $291,666.71
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March 31, 2011 $283,333.38
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April 30, 2011 $275,000.05
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May 31, 2011 $266,666.72
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June 30, 2011 $258,333.39
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July 31, 2011 $250,000.06
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August 31, 2011 $241,666.73
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September 30, 2011 $233,333.40
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October 31, 2011 $225,000.07
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November 30, 2011 $216,666.74
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December 31, 2011 $208,333.41
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January 31, 2012 $200,000.08
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February 28, 2012 $191,666.75
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March 31, 2012 $183,333.42
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April 30, 2012 $175,000.09
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May 31, 2012 $166,666.76
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June 30, 2012 $160,000.00
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July 31, 2012 $160,000.00
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August 31, 2012 $160,000.00
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September 30, 2012 $160,000.00
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October 31, 2012 $160,000.00
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November 30, 2012 $160,000.00
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December 31, 2012 $160,000.00
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January 31, 2013 $160,000.00
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February 28, 2013 $160,000.00
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March 31, 2013 $160,000.00
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April 30, 2013 $160,000.00
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May 31, 2013 $160,000.00
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June 30, 2013 $160,000.00
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July 31, 2013 $160,000.00
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August 31, 2013 $160,000.00
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September 30, 2013 $160,000.00
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October 31, 2013 $160,000.00
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November 30, 2013 $160,000.00
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December 31, 2013 $160,000.00
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