FIRST AMENDMENT TO LEASE
This First Amendment to Lease ("Amendment") is made as of the 10th day
of December, 1996 between Xxxxx Business Park, a Washington Joint Venture
("Lessor"), and Bow-Flex of America, Inc. ("Lessee").
RECITALS
A. Lessor (successor-in-interest to Xxxxxxxxxxx Group, Inc.) and Lessee
executed that certain Lease Agreement September 16, 1992, with the term
beginning May 1, 1992 (the "Lease"), with respect to certain premises located in
the XXXXX BUSINESS PARK, in the City of Vancouver, Xxxxx County, Washington
which are more particularly described in the Lease (the "Premises").
B. Lessee has asked Lessor to extend the term of the Lease, provide for an
additional lease extension option, and consent to Lessee making certain
alterations to the Premises at Lessee's sole cost and expense. Lessor is willing
to grant such requests, provided that the parties make certain other amendments
to the Lease.
NOW, THEREFORE, for and in consideration of the covenants contained herein,
the parties agree as follows:
AGREEMENT
1. DEFINITIONS. Terms used herein shall have the same meanings as
provided therefor in the Lease unless otherwise expressly provided herein or
unless the context otherwise requires.
2. AMENDMENTS TO LEASE. The Lease is hereby amended in the following
respects only:
2.1 LEASE TERM. The first sentence of Section 1.4 of the Lease is
hereby deleted and the following is substituted therefor:
The term of this Lease shall commence on May 1, 1992 and end on
April 30, 2002 unless earlier terminated hereunder.
2.2 OPTION TO EXTEND. Sections 1.5 and 1.6 are hereby added to the Lease
following Section 1.4 as follows:
SECTION 1.5. OPTION TO EXTEND. Lessee shall have the option to
extend the Lease term for five (5) additional years, beginning May 1,
2002 and ending on April 30, 2007 (the "Option Period"), provided
Lessee (a) notifies Lessor in writing of its intention to exercise its
option to extend no later than October 31, 2001 and (b) Lessee is not
then in default, has not been in material default during the Lease
term, nor is in default at the commencement of the Option Period, under
the terms of the Lease.
SECTION 1.6. OPTION PERIOD TERMS. The same terms and conditions of
this Lease applicable to the initial Lease term shall be applicable in
the Option Period, except that at the commencement of the Option
Period, the monthly rent will be the greater of (i) the adjusted
monthly rental rate in effect as of September 1, 2001 or (ii) the
monthly "fair market" rental rate for the Premises as determined in
Lessor's sole discretion ("May 2002 Rent") and thereafter such rent
will be adjusted on September 1 of each year as set forth in Section
2.2 of the Lease. In no event shall the rent, as subsequently adjusted,
be less than the May 2002 Rent, and for purposes of such adjustments,
the reference in the second paragraph of Section 2.2 to "the sum set
forth in Paragraph 2 hereof" is hereby amended to reference "the May
2002 Rent." At Tenant's written request at any time after August 31,
2001, Lessor will notify Lessee of the monthly "fair market" rental
rate that it has determined will apply to the Premises as of May 1,
2002.
2.3 RENT ADJUSTMENT. The parties hereby clarify the intended
meaning of the first sentence of the second paragraph of Section 2.2 by
amending it to read as follows:
Such adjustments shall be made so that the rent payable hereunder
each month during the next adjustment interval shall bear the same
relationship to the sum set forth in Paragraph 2 hereof as the Consumer
Price Index, U.S. City Average, of the Bureau of Labor Statistics of the
U.S. Department of Labor (U.S. Index Of All Items for All Urban Consumers -
1982-84 equals 100) (sometimes referred to herein as the "Index") as of
the date of the adjustment bears to the Index as of
the base date. For all adjustments prior to September 1, 1997, the base
year or base date shall be May 1, 1992, for adjustments on September 1,
1997 through September 1, 2001, the base year or base date shall be May
1, 1997, and for adjustments during the Option Period, the base year or
base date shall be May 1, 2002.
2.4 RENT BEGINNING MAY 1, 1997. Effective May 1, 1997, the first
sentence of Section 2.1 is hereby amended to read as follows:
During the term hereof, Lessee shall pay to Lessor, without
deduction or offset by Lessee, rent for the Premises in the sum of
Four Thousand Nine Hundred Ninety-One Dollars ($4,991.00) per month.
2.5 COMMON AREA EXPENSES. Effective May 1, 1997, the last sentence in
Section 2.1 and the phrase "including common area charges" in the
fourth sentence of Section 2.2 are hereby deleted.
2.6 ALTERATIONS BY LESSEE. Subject to the requirements of Section
3.6 of the Lease, Lessee, at Lessee's sole cost and expense, may remodel
and/or expand the office area of the Premises ("Office Expansion
Improvements"). Prior to commencement of any work relating to the Office
Expansion Improvements, Lessee must obtain Lessor's written approval of
plans, specifications, and elevations, as applicable. Lessor agrees not to
charge an office rental surcharge for such Office Expansion Improvements.
Notwithstanding language to the contrary in Section 3.6 of the Lease, at the
end of the Lease term, in Lessor's sole discretion, Lessor may require Lessee
to remove any or all of the Office Expansion Improvements and restore the
Premises to their condition prior to installation of the Office Expansion
Improvements, all at Lessee's sole cost and expense.
3. NO OTHER CHANGES. All other provisions, terms and conditions of
the Lease, except as expressly set forth in this Amendment, shall remain
unmodified and shall otherwise continue in full force and effect as written.
4. EFFECTIVE DATE. Except as expressly otherwise set forth herein,
the provisions of this Amendment are effective on the date set forth above.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first above written.
LANDLORD: XXXXX BUSINESS PARK,
a Washington joint venture
By: WINMAR COMPANY, INC.,
its Venturer
By /s/ Xxxxx X. Xxxxxxxxxx
------------------------------
Its President
-------------------------------
By /s/ Xxxx X. Xxxxx
--------------------------------
Its Sr. Vice President
-----------------------------
By: XXXXXXXXXXX GROUP, INC.
its Venturer
By /s/ X.X. Xxxxxxxxxxx
--------------------------------
Its President
-------------------------------
TENANT: BOW-FLEX OF AMERICA, INC.
/s/ Xxx X. Xxxx
-----------------------------------
Its: CFO
------------------------------
STATE OF WASHINGTON )
)ss.
COUNTY OF KING )
I certify that I know or have satisfactory evidence that Xxxxx X.
Xxxxxxxxxx and Xxxx X. Xxxxx are the persons who appeared before me, and said
persons acknowledged that they signed this instrument, on oath stated that
they were authorized to execute the instrument and acknowledged it as the
President and Senior Vice Pres., respectively, of WINMAR COMPANY, INC., the
corporation acting as venturer of XXXXX BUSINESS PARK, the joint venture that
executed the within and foregoing instrument, to be the free and voluntary
act of such party for the uses and purposes mentioned in the instrument; and
on oath stated that they were duly elected, qualified and acting as said
officers of the corporation and that they were authorized to execute said
instrument on behalf of the corporation and that the seal affixed, if any, is
the corporate seal of the corporation, and that the corporation was
authorized to execute said instrument on behalf of the joint venture.
Dated: [illegible], 1996
/s/ Xxxxx Xxxxx
---------------------------------------
[SEAL] Print Name: XXXXX XXXXX
NOTARY PUBLIC in and for the State of
Washington, residing at Bellevue
My commission expires: 4/20/98
STATE OF WASHINGTON )
) ss.
COUNTY OF XXXXX )
I certify that I know or have satisfactory evidence that X.X. Xxxxxxxxxxx
is the person who appeared before me, and said person acknowledged that he
signed this instrument, on oath stated that he was authorized to execute the
instrument and acknowledged it as the President of XXXXXXXXXXX GROUP, INC., the
corporation acting as venturer of XXXXX BUSINESS PARK, the joint venture that
executed the within and foregoing instrument, to be the free and voluntary act
of such party for the uses and purposes mentioned in the instrument; and on oath
stated that he was duly elected, qualified and acting as said officers of the
corporation and that he was authorized to execute said instrument on behalf of
the corporation and that the seal affixed, if any, is the corporate seal of the
corporation, and that the corporation was authorized to execute said instrument
on behalf of the joint venture.
Dated: 1-16-97
/s/ Xxxxxx Xxxxx
--------------------------------
[SEAL] Print Name: XXXXXX XXXXX
NOTARY PUBLIC in and for the State
of Washington, residing at Vancouver, WA
My commission expires: 00-00-00
XXXXX XX XXXXXXXXXX )
) ss.
COUNTY OF XXXXX )
I certify that I know or have satisfactory evidence that Xxx X. Xxxx is the
person who appeared before me, and said person acknowledged that [he/she] signed
this instrument, on oath stated that [he/she] was authorized to execute the
instrument and acknowledged it as the CFO of BOW-FLEX OF AMERICA, INC. to be the
free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
Dated: 1-27-97
/s/ Xxxxx X. Xxxxxxxxxxxxxx
---------------------------------------
Print Name: Xxxxx X. Xxxxxxxxxxxxxx
[SEAL] NOTARY PUBLIC in and for the State of
Washington, residing at Xxxxx Co.
My commission expires: 1-1-2000
