EXHIBIT 10.1
SECOND AMENDMENT OF LEASE
THIS SECOND AMENDMENT OF LEASE ("Second Amendment") is made this 3rd
day of October, 2003, by and between PLAZA IV ASSOCIATES, LTD., ("Landlord"),
and LIQUIDMETAL TECHNOLOGIES, INC., ("Tenant"), and amends the Lease Agreement
("Lease Agreement") dated October 4, 2001, likewise by and between them, as that
Lease Agreement was earlier amended by the Amendment of Lease ("First
Amendment") dated May 7, 2002, likewise by and between them, said Lease
Agreement and First Amendment being collectively referred to in this Second
Amendment as "the Lease." For good and valuable considerations, the receipt and
adequacy of which are hereby mutually and respectively acknowledged by them,
Landlord and Tenant hereby covenant, contract, acknowledge and agree as follows:
1. Unless otherwise provided in this Second Amendment,
the capitalized terms used in this Second Amendment shall have the same meanings
as those ascribed to them in the Lease.
The Lease, as amended by this Second Amendment, shall be known
in this Second Amendment as "the Second Amended Lease."
Landlord's notice address is now:
Plaza IV Associates, Ltd.
A Florida Limited Partnership
Suite 2135
000 Xxxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
Landlord's payment address is now:
Plaza IV Associates, Ltd.
XX Xxx 000000
Xxxxx, XX 00000-0000
This Second Amendment has been thoroughly negotiated by the
parties and each has been instrumental in its preparation. Therefore, its terms
and provisions shall be construed neither in favor of, nor against, either party
under the rule of construction against the draftsperson. The laws of the State
of Florida shall govern the enforcement and interpretation of this Second
Amendment.
As required by F.S. 404.056(8), Landlord hereby notifies
Tenant as follows: "RADON GAS: Radon is a naturally occurring radioactive gas
that, when it has accumulated in a building in sufficient quantities, may
present health risks to persons who are exposed to it over time. Levels of radon
gas that exceed federal and state guidelines have been found in buildings in
Florida. Additional information regarding radon and radon testing may be
obtained from your county public health unit."
Tenant hereby agrees that it will not divulge or disclose to
third parties (other than its own attorneys, accountants, auditors and like
professionals having in each instance a bona fide "need to know") the terms,
provisions and conditions of the Second Amended Lease (as may be hereafter
amended or modified). Tenant's breach of said agreement shall constitute a
Default under Item 20 of the Lease Agreement, no curative notice to Tenant from
Landlord being required.
This Second Amendment is expressly contingent upon Landlord
and AmSouth Bank ("AmSouth"; another tenant in the Building) executing by
October 31, 2003, a third amendment of lease ("the AmSouth Third Amendment")
whereby AmSouth will lease from Landlord the Surrendered Premises (as
hereinafter defined and known in
the AmSouth Third Amendment as "Suite 3100"). If (for any or no reason
whatsoever) this contingency does not duly, timely and fully occur, then this
Second Amendment shall be and become completely and absolutely null and void and
of no force or effect whatsoever and the Lease shall continue in full force and
effect, just as if, and to the extent that, the parties had never contemplated
this Second Amendment or executed it.
2. The parties hereby agree and confirm that Tenant currently
leases from Landlord, and Landlord currently leases to Tenant, that certain area
(collectively, "the Total Premises") comprised of
(a) the Premises [see Item 1 (c) of the Lease Agreement]
composed of
(i) Xxxxx 0000
(xx) Xxxxx 0000 xxx
(xxx) Xxxxx 0000
and
(b) the Expansion Space [see Item 45 of the Lease Agreement
and the contents of the First Amendment].
One of the general purposes of this Second Amendment is, as
described elsewhere in this Second Amendment, to reduce [and possibly (see
paragraph 5. of this Second Amendment) eliminate] the area of the space leased
by Tenant from Landlord, and by Landlord to Tenant, in the Building under the
Second Amended Lease.
3. Effective (and not later than) December 15, 2003, ("the
Effective Date") Tenant shall absolutely and completely vacate (a) the Expansion
Space (approximately 6,040 square feet of net rentable area), (b) Suite 3160
(approximately 2,385 square feet of net rentable area), and (c) Suite 3170
(approximately 3,307 square feet of net rentable area), the total area of the
spaces the subject of (a) - (c) inclusive above being hereinafter referred to as
"the Surrendered Premises." The parties hereby conclusively and irrevocably
agree that there are 11,732 square feet of net rentable within the Surrendered
Premises, despite the fact that said figure may not be actually correct.
Accordingly, and during the period beginning with the Effective Date and ending
at midnight on January 31, 2007, the Premises, subject to the other contents
(e.g., the next immediately following paragraph of this paragraph 3.), shall
consist of only Suite 3150. The parties hereby conclusively and irrevocably
agree that there are 8,136 square feet of net rentable area within Suite 3150,
despite the fact that said figure may not be actually correct.
Despite the contents of the next-to-last sentence of the first
paragraph of this paragraph 3., Tenant, in order that Landlord will not have a
lapse in the Rent and Additional Rent it is entitled to receive under the Lease,
shall continue to pay Landlord base Rent and Additional Rent on the Total
Premises for a period of time ("the AmSouth Suite 3100 Construction Period")
beginning with the Effective Date and ending with the date that is the day
immediately before the earlier of (a) the date that is exactly sixty (60) days
immediately following the Effective Date or (b) the date AmSouth and/or its
contractor fully completes the build-out and construction ("the Work") of the
Surrendered Premises for AmSouth's use and occupancy thereof, the earlier of (a)
or (b) above being hereinafter referred to as "the Suite 3100 Commencement Date"
(as likewise so defined in the proposed AmSouth Third Amendment).
During the period ("the Suite 3150 Term") beginning with the
Suite 3100 Commencement Date and ending at midnight on January 31, 2007, Tenant
shall, as regards Suite 3150, pay to Landlord base Rent in accordance with the
following schedule:
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Period Monthly Base Rent
------ -----------------
Suite 3100 Commencement $19,579.58
Date through October 31, 2004
November 1, 2004, through $20,332.50
October 31, 2005
November 1, 2005, through $21,085.42
January 31, 2007
Said base Rent, plus applicable tax(es), shall be (a) in addition to the
Additional Rent as described in the Second Amended Lease, plus applicable
tax(es) on said Additional Rent and (b) paid by Tenant to Landlord in equal
monthly installments for each of the above-described periods, each monthly
payment, plus applicable tax(es), to be made in advance and on or before the
first day of the applicable month.
During the Suite 3150 Term Tenant shall, as regard the
Surrendered Premises, likewise (and in addition to the other monies payable by
Tenant to Landlord under the Second Amended Lease) pay (in general accordance
with Items 4 and 5 of the Lease Agreement) to Landlord (as Additional Rent) a
monetary amount equal to the difference between (a) the Operating Expense and
Utility Base and the Real Estate Taxes Base the subject of Items Item (i) and
(j) of the Lease Agreement (which Bases the parties hereby agree total $9.35 per
net rentable square foot per annum) and (b) a base equal to the Operating
Expenses, Utility Costs and Real Estate Taxes actually incurred (on a per net
rentable square foot per annum basis) for the operation of the Building and its
appurtenances for the calendar year 2004 for the Surrendered Premises.
During the 3150 Term Tenant's Proportionate share shall be
1.474 percent (8,136 divided by 552,080).
4. Effective the date of this Second Amendment, each, every, any
and all of Tenant's rights under Items 45 and 46 of the Lease Agreement are
hereby cancelled and nullified, to include, but not be limited to, any monetary
allowance(s) the subject of said Item 45.
5. Landlord and Tenant hereby acknowledge that AmSouth has an
option (which option AmSouth may or may not exercise) under the AmSouth Third
Amendment to lease Suite 3150. Accordingly, upon not less than nine (9) months'
prior written notice from Landlord to Tenant so requiring and/or requesting,
Tenant shall within said nine (9) months absolutely and completely vacate Suite
3150. Despite such vacating by Tenant of Suite 3150, Tenant shall continue to
pay Landlord, as regards said Suite 3150, the Rent and Additional Rent (and
taxes) the subject of the Second Amended Lease through and including the date
that is the earliest of (a) the date that is exactly sixty (60) days immediately
following the date Tenant so vacates Suite 3150, (b) the date the build-out and
construction of Suite 3150 is fully completed by AmSouth and/or its contractor
for the use and occupancy thereof by AmSouth in accordance with said option or
(c) the date that is exactly sixty (60) days following the expiration of the
aforesaid nine (9) month period. After the date that is the earliest of (a) -
(c) inclusive above, the term of the Second Amended Lease shall end, but Tenant
shall remain obligated to Landlord for any obligations, duties, etc., that
remain unfulfilled under the Second Amended Lease, as of such ending date.
6. In partial consideration of this Second Amendment,
(A) Tenant not later than November 6, 2003, shall pay Xxxxxxx
Realty Services, a licensed Florida real estate broker, a commission equal to
Twenty-six Thousand Seven Hundred Ninety-seven and 02/00 Dollars. ($26,797.02),
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(B) Tenant not later than November 6, 2003, shall pay CB
Xxxxxxx Xxxxx a commission equal to Six Thousand Six Hundred Ninety-nine and
25/100 Dollars ($6,699.25) and
(C) effective the Effective Date, Tenant surrenders and
relinquishes to Landlord twelve (12) parking spaces (3 reserved and 9
unreserved) in the Building's parking garage.
With the exception of the brokers the subject of (A) and (B)
above, Tenant warrants that there are no claims for broker's commissions or
finder's fees in connection with its execution of this Second Amendment and
agrees to indemnify and save Landlord completely harmless from any liability or
lien that may arise from any such claim(s), including reasonable attorney's
fees.
7. Except as expressly stated in this Second Amendment, the Lease
shall remain in full force and effect and the parties hereby ratify and confirm
same, as thus amended.
IN WITNESS WHEREOF, the parties, by and through their undersigned,
duly-authorized representatives, have executed this Second Amendment for the
purposes therein described.
WITNESSES: TENANT:
LIQUIDMETAL TECHNOLOGIES, INC.
_______________________(Sign) By: /s/ Xxxxx Xxxxxx
--------------------------------
_______________________(Print) Name:Xxxxx Xxxxxx
_______________________(Sign) Title Senior Vice President
_______________________(Print) Date: ______________________________
LANDLORD:
PLAZA IV ASSOCIATES, LTD.,
A Florida Limited Partnership
By: Tampa Plaza IV Company, Ltd.,
a Florida Limited Partnership,
Manager
_______________________(Sign) By: /s/ Xxxxxxx X. Xxxxx, III
--------------------------------
_______________________(Print) Name: Xxxxxxx X. Xxxxx, III
_______________________(Sign) Title: General Partner
_______________________(Print) Date: ______________________________
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