SECOND AMENDMENT
Exhibit 10.5
Extension Amendment
#001006-09
SECOND
AMENDMENT
THIS SECOND AMENDMENT (the "Amendment') is made and entered into
as of the 23rd
day of
June, 2009 by and between
XXXXXX INVESTMENT
COMPANY, A California Limited Partnership ("Lessor"), and Raptor Networks
Technology, Inc. ("Lessee").
RECITALS
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A.
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Lessor
and Lessee are parties to that certain lease datedSeptember
22, 2008, amended February 09,
2009 (the "Lease").
Pursuant to the Lease, Lessor has leased to Lessee space currently
containing approximately 2,400
square feet (the "Premises") described as 0000
X. Xxxxx Xxxxxx located at Santa
Ana, California.
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B.
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The
Lease by its terms shall expire onSeptember
30, 2009 ("Prior Termination Date") and the parties desire to
extend the Term of the Lease, all on the following terms and
conditions.
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NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Lessor and Lessee agree as
follows:
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I.
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Extension.
The Term of the Lease is hereby extended for a period of Six
(6) months and shall expire on March
31, 2010 ("Extended Termination Date"), unless sooner terminated in
accordance with the terms of the Lease. That portion of the Term
commencing the day immediately following the Prior Termination Date ("Extension
Date") and ending on the Extended Termination Date shall be
referred to herein as the "Extended
Term".
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II.
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Base
Rent and Common Area Maintenance. As of the Extension Date, the
schedule of Base Rent
and Common Area Maintenance payable with respect to the Premises during
the Extended Term is the following:
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Period
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Monthly
Base Rent & Common Area Maintenance
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October
01, 2009 – March 31, 2010
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$1,560.00**
**
Prepaid for the term of this
lease
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All such
Base Rent and Common Area Maintenance shall be payable by Lessee in accordance
with the terms of the Lease. In the event Lessee is more than ten (10) days
delinquent in the payment of a rental installment, Lessor, at Lessor's option
may require all future payments to Lessor by cashier's check or money
order.
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III.
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Additional
Security Deposit. No additional security deposit shall be required
in connection with this
Amendment.
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IV.
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Property
Taxes & Insurance Premiums. For the period commencing on the
Extension Date and ending on the Extended Termination Date, Lessee shall
pay for Lessee's pro-rata share of increases (if any) over base year
property taxes and insurance premiums in accordance with the terms of the
Lease, provided, however, during such period, the Insurance Base for the
computation of Lessee's pro-rata share of Insurance Premiums is amended
from $397.87
to $TBD,
and the Tax Base for the computation of Lessee's pro-rata share of
Real Property Taxes is amended from $529.99
to $TBD.
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V.
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Improvements
to Premises. Lessee is in possession of the Premises and accepts
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.
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VI.
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Lessee's
Maintenance Obligations. Section 7.1 of the Lease shall hereby be
amended to include the following section 7.1(d)
Replacement:
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Subject
to Lessee's indemnification of Lessor set forth in Paragraph 8.7 of the Lease,
and without relieving Lessee of liability resulting from Lessee's failure to
exercise and perform good maintenance practices, if an item described in
Paragraph 7.1(b) of the Lease and including by reference herein all loading
doors, cannot be repaired other than at a cost which is in excess of 50% of the
cost of replacing such item, then such item shall be replaced by Lessor, and the
cost thereof shall be prorated between the parties and Lessee shall only be
obligated to pay, each month during the remainder of the term of this Lease, on
the date on which Base Rent is due, an amount equal to the product of
multiplying the cost of such replacement by a fraction, the numerator of which
is one, and the denominator of which is 84 (i.e. 1184th
of the cost per month). Lessee shall pay interest on the unamortized balance but
may prepay its obligation at any time.
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VII.
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Insurance;
Indemnity Section 8 of the Lease shall hereby be amended to include
the following section
8.9 Failure to Provide Insurance:
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Lessee
acknowledges that any failure on its part to obtain or maintain the insurance
required herein will expose Lessor to risks and potentially cause Lessor to
incur costs not contemplated by this Lease, the extent of which will be
extremely difficult to ascertain. Accordingly, for any month or portion thereof
that Lessee does not maintain the required insurance and/or does not provide
Lessor with the required binders or certificates evidencing the existence of the
required insurance, the Base Rent shall be automatically increased, without any
requirement for notice to Lessee, by an amount equal to 10% of the then existing
Base Rent or $100, whichever is greater. The parties agree that such increase
in Base Rent represents fair and reasonable compensation for the additional
risk/costs that Lessor will incur by reason of Lessee's failure to
maintain the required insurance. Such increase in Base Rent shall in no event
constitute a waiver of Lessee's Default or Breach with respect to the failure to
maintain such insurance, prevent the exercise of any of the other rights and
remedies granted hereunder, nor relieve Lessee of its obligations to maintain
the insurance specified in the Lease.
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VIII.
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Other
Pertinent Provisions. Lessor and Lessee 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:
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A.
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Rent: Lessee shall submit on
or before October 01, 2009, pre-paid rent in the amount of $9,360.00.
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B.
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Additional
Conditions: At the later of the
expiration of the lease or Lessee's occupancy of the
premises, Lessee shall remove the telecommunication wires
running across the roof and
repair the hole in the South concrete wall where the wire enters
the building
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IX.
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Miscellaneous.
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A.
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This
Amendment sets 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 Lessee
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 Lessee in connection with entering
into the Lease, unless specifically set forth in this
Amendment.
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B.
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Except
as herein modified or amended, the provisions, conditions and terms of the
Lease shall remain unchanged and in full force and
effect.
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C.
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In
the case of any inconsistency between the provisions of the Lease and this
Amendment, the provisions of this Amendment shall govern and
control.
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D.
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Submission
of this Amendment by Lessor is not an offer to enter into this Amendment
but rather is a solicitation for such an offer by Lessee. Lessor shall not
be bound by this Amendment until Lessor has executed and delivered the
same to Lessee.
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E.
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Lessee
hereby represents to Lessor that Lessee has dealt with no broker in
connection with this Amendment. Lessee agrees to indemnify and hold
Lessor, its members, principals, beneficiaries, partners, officers,
directors, employees, mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively, the "Lessor
Related Parties") harmless from all claims of any brokers claiming to have
represented Lessee in connection with this Amendment. Lessor hereby
represents to Lessee that Lessor has dealt with no broker in connection
with this Amendment. Lessor agrees to indemnify and hold Lessee, its
members, principals, beneficiaries, partners, officers, directors,
employees, and agents, and the respective principals and members of any
such agents (collectively, the "Lessee
Related Parties") harmless from all claims of any brokers
claiming to have represented Lessor in connection with this
Amendment.
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F.
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Each
signatory of this Amendment represents hereby that he or she has the
authority to execute and deliver the same on behalf of the party hereto
for which such signatory is acting.
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IN WITNESS WHEREOF, Lessor and
Lessee have duly executed this Amendment as of the day and year first above
written.
LESSOR:
XXXXXX
INVESTMENT COMPANY, A California Limited Partnership
By: /s/ H. Xxxxxx Xxxxxx, Jr.
Name: H.
Xxxxxx Xxxxxx, Jr.
Title:
General Partner
LESSEE:
Raptor
Networks Technology, Inc.
By: /s/ Xxx Xxxxxxxxxxxxxxx
Name: Xxx
Xxxxxxxxxxxxxxx
Title:
Director
By: /s/ Xxx Xxxxxxxxxxxxxxx
Name: Xxx
Xxxxxxxxxxxxxxx
Title:
CEO
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