EXHIBIT 99.1
FIRST AMENDMENT
THIS FIRST AMENDMENT (the "AMENDMENT") is made and entered into as of May
3, 2005, by and between EOP OPERATING LIMITED PARTNERSHIP, A DELAWARE LIMITED
PARTNERSHIP ("LANDLORD") and LIGHTBRIDGE, INC., A DELAWARE CORPORATION
("TENANT").
RECITALS
A. Landlord and Tenant are parties to that certain lease dated August 10,2004
(the "ORIGINAL LEASE"), which Original Lease has been previously amended
by an instrument dated January 19, 2005 and (the Original Lease, as so
amended, being referred to herein as the "LEASE"). Pursuant to the Lease,
Landlord has leased to Tenant space currently containing approximately
19,097 rentable square feet (the "EXISTING PREMISES") described as Suite
No. 310 on the 3rd floor and Suite No. 600 on the 6th floor of the
building commonly known as US Bank Plaza, located at 00000 XX 0xx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx (the "BUILDING").
B. Tenant has requested that additional space containing approximately 4,349
rentable square feet described as Suite No. 320 on the 3rd floor of the
Building shown on EXHIBIT A hereto (the "EXPANSION SPACE") be added to the
Existing Premises and that the Lease be appropriately amended and Landlord
is willing to do the same on the following terms and conditions.
NOW, THEREFORE, in consideration of the above recitals which by this
reference are incorporated herein, the mutual covenants and conditions contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant agree as follows:
1. EXPANSION AND EFFECTIVE DATE. Effective as of the Expansion Effective
Date (defined below), the Premises, as defined in the Lease, is increased
from 19,097 rentable square feet on the 3rd and 6th floors to 23,446
rentable square feet on the 3rd and 6th floors by the addition of the
Expansion Space, and from and after the Expansion Effective Date, the
Existing Premises and the Expansion Space, collectively, shall be deemed
the Premises, as defined in the Lease. The Term for the Expansion Space
shall commence on the Expansion Effective Date and end on the Termination
Date. The Expansion Space is subject to all the terms and conditions of
the Lease except as expressly modified herein and except that Tenant shall
not be entitled to receive any allowances, abatements or other financial
concessions granted with respect to the Existing Premises unless such
concessions are expressly provided for herein with respect to the
Expansion Space.
1.01. The "EXPANSION EFFECTIVE DATE" shall be the later to occur of (i)
June 1, 2005 ("TARGET EXPANSION EFFECTIVE DATE"), and (ii) the date
upon which the Landlord Work (as defined in the Work Letter attached
as EXHIBIT B hereto) in the Expansion Space has been substantially
completed; provided, however, that if Landlord shall be delayed in
substantially completing the Landlord Work in the Expansion Space as
a result of the occurrence of a Tenant Delay (defined below), then,
for purposes of determining the Expansion Effective Date, the date
of substantial completion shall be deemed to be the day that said
Landlord Work would have been substantially completed absent any
such Tenant Delay(s). A "TENANT DELAY" means any act or omission of
Tenant or its agents, employees, vendors or contractors that
actually delays substantial completion of the Landlord Work,
including, without limitation, the following:
a. Tenant's failure to furnish information or approvals within
any time period specified in the Lease or this Amendment,
including the failure to prepare or approve preliminary or
final plans by any applicable due date;
b. Tenant's selection of equipment or materials that have long
lead times after first being informed by Landlord that the
selection may result in a delay;
c. Changes requested or made by Tenant to previously approved
plans and specifications;
d. The performance of work in the Expansion Space by Tenant or
Tenant's contractor(s) during the performance of the Landlord
Work; or
e. If the performance of any portion of the Landlord Work depends
on the prior or simultaneous performance of work by Tenant, a
delay by Tenant or Tenant's contractor(s) in the completion of
such work.
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The Expansion Space shall be deemed to be substantially completed on
the date that Landlord reasonably determines that all Landlord Work
has been performed (or would have been performed absent any Tenant
Delays), other than any details of construction, mechanical
adjustment or any other matter, the noncompletion of which does not
materially interfere with Tenant's use of the Expansion Space. The
adjustment of the Expansion Effective Date and, accordingly, the
postponement of Tenant's obligation to pay Rent on the Expansion
Space shall be Tenant's sole remedy and shall constitute full
settlement of all claims that Tenant might otherwise have against
Landlord by reason of the Expansion Space not being ready for
occupancy by Tenant on the Target Expansion Effective Date.
1.02. In addition to the postponement, if any, of the Expansion Effective
Date as a result of the applicability of Section 1.01. of this
Amendment, the Expansion Effective Date shall be delayed to the
extent that Landlord fails to deliver possession of the Expansion
Space for any other reason (other than Tenant Delays by Tenant),
including but not limited to, holding over by prior occupants. Any
such delay in the Expansion Effective Date shall not subject
Landlord to any liability for any loss or damage resulting
therefrom. If the Expansion Effective Date is delayed, the
Termination Date under the Lease shall not be similarly extended.
2. BASE RENT. In addition to Tenant's obligation to pay Base Rent for the
Existing Premises, Tenant shall pay Landlord Base Rent for the
Expansion Space as follows:
PERIOD ANNUAL RATE PER MONTHLY BASE RENT
SQUARE FOOT
Expansion Effective Date
through 9/30/06 $13.00 $4,711.42
10/1/06 through 9/30/07 $13.50 $4,892.63
10/1/07 through 9/30/08 $14.00 $5,073.83
10/1/08 through 9/30/09 $14.50 $5,255.04
All such Base Rent shall be payable by Tenant in accordance with the terms
of the Lease.
If the Expansion Effective Date is other than the Target Expansion
Effective Date, the schedule set forth above with respect to the payment
of any installment(s) of Base Rent for the Expansion Space shall be
appropriately adjusted on a per diem basis to reflect the actual Expansion
Effective Date, and the actual Expansion Effective Date shall be set forth
in a confirmation letter to be prepared by Landlord. However, the
effective date of any increases or decreases in the Base Rent rate shall
not be postponed as a result of an adjustment of the Expansion Effective
Date as provided above.
3. ADDITIONAL SECURITY DEPOSIT. Upon Tenant's execution hereof, Tenant shall
pay Landlord the sum of $18,000.00 which is added to and becomes part of
the Security Deposit, if any, held by Landlord as provided under Section 6
of the Lease as security for payment of Rent and the performance of the
other terms and conditions of the Lease by Tenant. Accordingly,
simultaneous with the execution hereof, the Security Deposit is increased
from $31,325.34 to $49,325.34.
4. TENANT'S PRO RATA SHARE. From and after the Expansion Effective Date,
Tenant's Pro Rata Share for the Expansion Space is 3.1658%.
5. IMPROVEMENTS TO EXPANSION SPACE.
5.1. CONDITION OF EXPANSION SPACE. Tenant has inspected the Expansion
Space and agrees to accept the same "as is" without any agreements,
representations, understandings or obligations on the part of
Landlord to perform any alterations, repairs or improvements, except
as may be expressly provided otherwise in this Amendment.
5.2. RESPONSIBILITY FOR IMPROVEMENTS TO EXPANSION SPACE. Landlord shall
perform improvements to the Expansion Space in accordance with the
Work Letter attached hereto as EXHIBIT B.
6. EARLY ACCESS TO EXPANSION SPACE. If Tenant is permitted to take possession
of the Expansion Space before the Expansion Effective Date, such
possession shall be subject to the terms and conditions of the Lease and
this Amendment and Tenant shall pay Rent and Additional Rent applicable to
the Expansion Space to Landlord for each day of possession prior to the
Expansion Effective Date. However, except for the cost of services
requested by Tenant (e.g. freight elevator usage), Tenant shall not be
required to pay Rent for the Expansion Space for any days of possession
before the Expansion Effective Date during which Tenant, with the approval
of Landlord, is in possession of the Expansion Space for the sole purpose
of performing improvements or installing furniture, equipment or other
personal property.
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7. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that, effective as
of the date of this Amendment (unless different effective date(s) is/are
specifically referenced in this Section), the Lease shall be amended in
the following additional respects:
7.01 PARKING. Notwithstanding anything to the contrary contained in
Section II.A of EXHIBIT F to the Original Lease, from and after the
Expansion Effective Date, the "APPLICABLE NUMBER" shall be 61. All
other terms and conditions of Section II of EXHIBIT F to the
Original Lease shall remain in full force and effect, including,
without limitation, the monthly rates for the Spaces as provided
therein.
7.02 MONUMENT SIGNAGE. Landlord shall construct a new exterior monument
sign on the southwest corner of the Property (the "NEW MONUMENT
SIGN") similar to the existing monument sign located outside the
Building on N.E. 0xx Xxxxxx. Provided that Tenant remains in
occupancy of at least 23,446 rentable square feet of space in the
Building under the terms of the Lease, as hereby amended, and in
consideration of a one time fee in the amount of $6,500.00 which
shall be paid upon Tenant's execution and delivery of this
Amendment, Tenant shall have the right to have Building standard
signage (with Building standard typeface and design) identifying
Tenant on the New Monument Sign. Any change or modification of the
monument signage requested by Tenant, shall be subject to Landlord's
approval, and shall be at Tenant's sole cost and expense. The
monument signage rights described above are personal to the initial
Tenant named under the Lease, or any successor as a result of a
Permitted Transfer, but such monument signage rights cannot be
assigned to any other assignee or subtenant.
8. MISCELLANEOUS.
8.01. This Amendment and the attached exhibits, which are hereby
incorporated into and made a part of this Amendment, set forth the
entire agreement between the parties with respect to the matters set
forth herein. There have been no additional oral or written
representations or agreements. Under no circumstances shall Tenant
be entitled to any Rent abatement, improvement allowance, leasehold
improvements, or other work to the Premises, or any similar economic
incentives that may have been provided Tenant in connection with
entering into the Lease, unless specifically set forth in this
Amendment. Tenant agrees that neither Tenant nor its agents or any
other parties acting on behalf of Tenant shall disclose any matters
set forth in this Amendment or disseminate or distribute any
information concerning the terms, details or conditions hereof to
any person, firm or entity without obtaining the express written
consent of Landlord.
8.02. Except as herein modified or amended, the provisions, conditions and
terms of the Lease shall remain unchanged and in full force and
effect.
8.03. In the case of any inconsistency between the provisions of the Lease
and this Amendment, the provisions of this Amendment shall govern
and control.
8.04. Submission of this Amendment by Landlord is not an offer to enter
into this Amendment but rather is a solicitation for such an offer
by Tenant. Landlord shall not be bound by this Amendment until
Landlord has executed and delivered the same to Tenant.
8.05. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Lease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
8.06. Tenant hereby represents to Landlord that Tenant has dealt with no
broker in connection with this Amendment, other than Xxxx Xxxxxxx of
Colliers Real Estate Services, Inc. ("TENANT'S BROKER"). Tenant
agrees to indemnify and hold Landlord, its trustees, members,
principals, beneficiaries, partners, officers, directors, employees,
mortgagee(s) and agents, and the respective principals and members
of any such agents (collectively, the "LANDLORD RELATED PARTIES")
harmless from all claims of any brokers, other than Tenant's Broker,
claiming to have represented Tenant in connection with this
Amendment. Landlord hereby represents to Tenant that Landlord has
dealt with no broker in connection with this Amendment, other than
Xxxxxx Xxxxxxx of Equity Office Properties Management Corp.
("LANDLORD'S BROKER"). Landlord agrees to indemnify and hold Tenant,
its trustees, members, principals, beneficiaries, partners,
officers, directors, employees, and agents, and the respective
principals and members of any such agents (collectively, the "TENANT
RELATED PARTIES") harmless from all claims of any brokers, including
Landlord's Broker, claiming to have represented Landlord in
connection with this Amendment.
8.07. Each signatory of this Amendment represents hereby that he or she
has the authority to
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execute and deliver the same on behalf of the party hereto for which
such signatory is acting.
9. CONTINGENCY. This Amendment is expressly contingent upon Landlord and US
Bank National Association ("US BANK") entering into an agreement (the
"TERMINATION AGREEMENT") terminating US Bank's lease with Landlord for the
Expansion Space on or before April 21, 2005. If Landlord and US Bank fail
to fully execute and deliver the Termination Agreement on or before April
21, 2005, then, at Landlord's option, this Amendment shall be null and
void.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment
as of the day and year first above written.
LANDLORD:
EOP OPERATING LIMITED PARTNERSHIP,
A DELAWARE LIMITED PARTNERSHIP
By: Equity Office Properties Trust, a Maryland real
estate investment trust, its general partner
By: /s/ Xxxxx X. Xxxxxx
-----------------------------
Xxxxx X. Xxxxxx
Vice-President- Leasing
Seattle Region
TENANT:
LIGHTBRIDGE, INC., A DELAWARE CORPORATION
By: /s/ Xxx Xxxxx
----------------------------------
Name: Xxx Xxxxx
Title: President
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LANDLORD ACKNOWLEDGMENTS
STATE OF Washington )
COUNTY OF King) ss:
I, the undersigned, a Notary Public, in and for the County and State
aforesaid, do hereby certify that Xxxxx X. Xxxxxx, personally known to me to be
the Vice President - Leasing of Equity Office Properties Trust, a Maryland real
estate investment trust, and personally known to me to be the same person whose
name is subscribed to the foregoing instrument, appeared before me this day in
person and acknowledged that as such officer of said entity being authorized so
to do, (s)he executed the foregoing instrument on behalf of said entity, by
subscribing the name of such entity by himself/herself as such officer, as a
free and voluntary act, and as the free and voluntary act and deed of said
entity under the foregoing instrument for the uses and purposes therein set
forth.
GIVEN under my hand and official seal this 3rd day of May, 2005.
XXXXXX XXXX GOOD Xxxxxx Xxxx Good
NOTARY PUBLIC ----------------
STATE OF WASHINGTON Notary Public
COMMISSION EXPIRES
JANUARY 9, 2008
My Commission Expires: 1/9/08
TENANT ACKNOWLEDGMENTS
STATE OF Utah)
COUNTY OF Utah)ss:
On this the 21 day of April, 2005, before me a Notary Public duly
authorized in and for the said County in the State aforesaid to take
acknowledgments personally appeared __________________, known to me to be
the ___________________________ President of LIGHTBRIDGE, INC., a Delaware
corporation, one of the parties described in the foregoing instrument, and
acknowledged that as such officer, being authorized so to do, (s)he executed the
foregoing instrument on behalf of said corporation by subscribing the name of
such corporation by himself/herself as such officer and caused the corporate
seal of said corporation to be affixed thereto, as a free and voluntary act, and
as the free and voluntary act of said corporation, for the uses and purposes
therein set forth.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Seeli Xxxxxxxxx
---------------------------------------
My Commission Expires: 10/31/07 [LOGO] SEELI XXXXXXXXX
Notary Public
State Of Utah
My Commission Expires October 31, 2007
00/ Xxxxx 000 Xxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
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EXHIBIT A
OUTLINE AND LOCATION OF EXPANSION SPACE
[FLOOR PLAN]
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EXHIBIT B
WORK LETTER
This Exhibit is attached to and made a part of the Lease by and EOP
OPERATING LIMITED PARTNERSHIP, A DELAWARE LIMITED PARTNERSHIP ("LANDLORD") and
LIGHTBRIDGE, INC., A DELAWARE CORPORATION ("TENANT") for space in the Building
located at 00000 XX 0xx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx, commonly known as US Bank
Plaza.
As used in this Work Letter, the "PREMISES" shall be deemed to mean the
Expansion Space, as initially defined in the attached Amendment.
1. Landlord shall perform improvements to the Premises substantially in
accordance with the plans prepared by Xxxxxxx Xxxxxx Design ("LANDLORD'S
ARCHITECT"), dated April 20, 2005 (the "PLANS"). The improvements to be
performed by Landlord in accordance with the Plans are hereinafter
referred to as the "LANDLORD WORK." It is agreed that construction of the
Landlord Work will be completed at Landlord's sole cost and expense
(subject to the Maximum Amount and further subject to the terms of
Paragraph 4 below) using Building standard methods, materials and
finishes. Landlord and Tenant agree that Landlord's obligation to pay for
the cost of Landlord Work (inclusive of the cost of preparing Plans,
obtaining permits, a construction management fee equal to 5% of the total
construction costs, and other related costs) shall be limited to
$89,154.50 (i.e. $20.50 per rentable square foot of the Expansion Space)
(the "MAXIMUM AMOUNT") and that Tenant shall be responsible for the cost
of Landlord Work, plus any applicable state sales or use tax, if any, to
the extent that it exceeds the Maximum Amount. Landlord shall enter into a
direct contract for the Landlord Work with a general contractor selected
by Landlord. In addition, Landlord shall have the right to select and/or
approve of any subcontractors used in connection with the Landlord Work.
Landlord's supervision or performance of any work for or on behalf of
Tenant shall not be deemed a representation by Landlord that such Plans or
the revisions thereto comply with applicable insurance requirements,
building codes, ordinances, laws or regulations, or that the improvements
constructed in accordance with the Plans and any revisions thereto will be
adequate for Tenant's use, it being agreed that Tenant shall be
responsible for all elements of the design of Tenant's plans (including,
without limitation, compliance with law, functionality of design, the
structural integrity of the design, the configuration of the premises and
the placement of Tenant's furniture, appliances and equipment).
Notwithstanding the foregoing or any other provision of the Lease to the
contrary, if the design of the Plans contains any material defect, then
Landlord shall not, without Tenant's prior written consent (which may be
withheld in Tenant's sole and absolute discretion), waive any claims
Landlord may have against Landlord's Architect under the Architect
Agreement (defined below) arising out of such defect, and, upon written
notice and request from Tenant, Landlord shall, at its option, either (a)
assign such claims to Tenant, or (b) pursue such claims directly against
Landlord's Architect for Tenant's benefit (provided that Tenant shall pay
all reasonable out-of-pocket expenses, including attorneys' fees and
costs, incurred by Landlord in pursuing such claims). As used herein,
"ARCHITECT AGREEMENT" shall mean that certain Agreement Between Owner and
Architect, and that certain Addendum to Agreement Between Owner and
Architect, each dated as of July 21, 2004, between Landlord and Landlord's
Architect, pursuant to which the Plans were prepared.
2. If Landlord's estimate and/or the actual cost of the Landlord Work shall
exceed the Maximum Amount, Landlord, prior, to commencing any construction
of Landlord Work, shall submit to Tenant a written estimate setting forth
the anticipated cost of the Landlord Work, including but not limited to
labor and materials, contractor's fees and permit fees. Within 3 Business
Days thereafter, Tenant shall either notify Landlord in writing of its
approval of the cost estimate, or specify its objections thereto and any
desired changes to the proposed Landlord Work. If Tenant notifies Landlord
of such objections and desired changes, Tenant shall work with Landlord to
reach a mutually acceptable alternative cost estimate.
3. If Landlord's estimate and/or the actual cost of construction shall exceed
the Maximum Amount (such amounts exceeding the Maximum Amount being herein
referred to as the "EXCESS COSTS"), Tenant shall pay to Landlord such
Excess Costs, plus any applicable state sales or use tax thereon, upon
demand. The statements of costs submitted to Landlord by Landlord's
contractors shall be conclusive for purposes of determining the actual
cost of the items described therein. The amounts payable by Tenant
hereunder constitute Rent payable pursuant to the Lease, and the failure
to timely pay same
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constitutes an event of default under the Lease. In the event that
Landlord's estimate exceeds the actual costs of construction, Landlord
shall pay to Tenant, promptly after Landlord's receipt, review and
approval of all invoices, any Excess Costs paid by Tenant I excess of the
actual costs of construction.
4. If Tenant shall request any revisions to the Plans, Landlord shall have
such revisions prepared at Tenant's sole cost and expense and Tenant shall
reimburse Landlord for the cost of preparing any such revisions to the
Plans, plus any applicable state sales or use tax thereon, upon demand.
Promptly upon completion of the revisions, Landlord shall notify Tenant in
writing of the increased cost in the Landlord Work, if any, resulting from
such revisions to the Plans. Tenant, within one Business Day, shall notify
Landlord in writing whether it desires to proceed with such revisions. In
the absence of such written authorization, Landlord shall have the option
to continue work on the Premises disregarding the requested revision.
Tenant shall be responsible for any Tenant Delay in completion of the
Premises resulting from any revision to the Plans. If such revisions
result in an increase in the cost of Landlord Work, such increased costs,
plus any applicable state sales or use tax thereon, shall be payable by
Tenant upon demand. Notwithstanding anything herein to the contrary, all
revisions to the Plans shall be subject to the approval of Landlord.
5. Any portion of the Maximum Amount which exceeds the cost of the Landlord
Work or is otherwise remaining after November 30, 2005 shall accrue to the
sole benefit of Landlord, it being agreed that Tenant shall not be
entitled to any credit, offset, abatement or payment with respect thereto.
6. This Exhibit shall not be deemed applicable to any additional space added
to the Premises at any time or from time to time, whether by any options
under the Lease or otherwise, or to any portion of the Premises or any
additions to the Premises in the event of a renewal or extension of the
original Term of the Lease, whether by any options under the Lease or
otherwise, unless expressly so provided in the Lease or any amendment or
supplement to the Lease.
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