EXHIBIT 10.9B
FIRST AMENDMENT OF LEASE
THIS AGREEMENT is made as of the 18th day of December, 2000,
between BECO-TERMINAL LLC, a Virginia limited liability company, having an
office at 00000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx, 00000
("Landlord") and INFOCROSSING, INC., a Delaware corporation, having an office at
0 Xxxxxxxx Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx, 00000 ("Tenant").
RECITALS:
WHEREAS, Landlord and Tenant are parties to a lease dated July 21, 2000
(the "Lease"), pursuant to which Landlord leased to Tenant and Tenant leased
from Landlord the building and land (the "Premises") located at 00000 Xxxxxxxx
Xxxxx, Xxxxxxxx pursuant to all of the terms, covenants and conditions in the
Lease; and
WHEREAS, the parties desire to amend the Lease in the manner
hereinafter set forth.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Effective as of the date hereof, the following new
section shall be incorporated into the Lease after Section 23.03 thereof:
"Section 23.04. If an Event of Default should occur in
connection with (i-a) Tenant's failure to pay Annual Rental in
accordance with Section 5.01 of the Lease, (ii-a) Tenant's failure to
repay any Impositions billed directly to Landlord in accordance with
Section 6.04 of the Lease, or if any other Event of Default shall
occur, and/or if Landlord shall pursue remedies expressly provided in
the Lease with respect to Tenant's failure to cure an Event of Default,
including, without limitation, the remedies provided in Section 21.02
of the Lease (individually or collectively a "Lease Remedy") which
other Event of Default and/or Lease Remedy is or becomes readily
quantifiable in dollars (a "Quantifiable Event of Default" or
"Quantifiable Lease Remedy", as applicable), Landlord shall have the
right on five (5) business days notice to Tenant to draw down all or a
portion of the Security Deposit represented by the Letter of Credit,
(i-b) to the extent required for the payment of the Annual Rental or
Impositions as to which the said Event of Default exists or (ii-b) to
compensate Landlord for expenditures made in compliance with the terms
of the Lease with respect to a Quantifiable Event of Default or (iii-b)
to compensate Landlord for all sums due to Landlord pursuant to the
exercise of a Quantifiable Lease Remedy, provided that with respect to
any Quantifiable Event of Default and/or Quantifiable Lease Remedy,
should Tenant send Landlord written notice by receipted overnight
courier stating that that Tenant has a bona fide dispute with respect
to all or any portion of such Quantifiable Event of Default and/or
Quantifiable Lease Remedy within such five (5) business day period,
Landlord shall only be entitled to draw down the undisputed amount of
such Quantifiable Event of Default and/or Quantifiable Lease Remedy.
X-2
Notwithstanding the foregoing, if Tenant should fail to pay the amount
required by any judgment (that is either final or in respect of which
Tenant has not filed a notice of appeal within the requisite time
period) against Tenant (its successors or assigns) relating to (i-c)
any Event of Default (ii-c) breach of Tenant's obligations under the
Lease, (iii-c) a Lease Remedy, or (iv-c) any disputed portion of a
Quantifiable Event of Default and/or Quantifiable Lease Remedy, as
applicable, within thirty (30) days after the entry of such judgment,
Landlord shall have the right to draw down on all or a portion of the
Security Deposit represented by the Letter of Credit, to the extent
required to satisfy said judgment. Notwithstanding anything contained
herein to the contrary, the parties hereby agree that the failure of
Tenant to timely replace and replenish the Letter of Credit as required
by the last two sentences of Section 23.01 above (subject to the
applicable notice and cure period pursuant to Section 21.01 of the
Lease) shall constitute an Event of Default of the Lease and shall
allow the Landlord, upon five (5) business days notice to Tenant, to
draw down on the Letter of Credit in its entirety. Notwithstanding
anything to the contrary contained in the Lease, rejection or other
termination of the Lease in a bankruptcy (or similar) proceeding shall
constitute a termination of the Lease as a result of an Event of
Default, and shall allow the Landlord, upon five (5) business days
notice, to draw down on the Letter of Credit in its entirety."
2. Landlord agrees that if the existing loading dock drain
pipe at the Premises does not drain properly as a result of any design flaw (or
latent defect), then Landlord agrees that it shall be responsible for the actual
costs of restoring the drain pipe to working condition. In connection with such
repair obligation, Tenant hereby grants to Landlord a right of entry upon the
Premises and a right of access to the drain, in order to perform any and all
repairs required hereunder (including replacement if applicable) of the drain
pipe.
3. All terms, covenants and conditions of the Lease shall
remain in effect and unchanged except to the extent expressly modified by this
Agreement. Without limiting the generality of the forgoing, the Landlord hereby
confirms and agrees that a Letter of Credit substantially in the form attached
to the Lease as Exhibit F shall at any time be acceptable to the Landlord,
provided it complies with the other requirements set forth in Section 23.01. To
the extent that any provision of this Agreement conflicts with the Lease, this
Agreement shall govern.
4. The terms, covenants and conditions contained herein are
binding upon and inure to the benefit of the parties hereto and their heirs,
executors, administrators, successors and assigns.
5. This Agreement and the Lease shall be construed in
accordance with the laws of the Commonwealth of Virginia. The parties
acknowledge and agree that neither this Agreement nor any of its provisions
shall be interpreted against a party by virtue of such party having drafted the
Agreement or the provision.
6. This Agreement contains the entire and final agreement of
and between the parties as to the subject matter hereof, and the parties shall
not be bound by any statements, conditions, representations, inducements or
warranties, oral or written, relating thereto and not herein contained.
X-3
7. Each party hereby represents that it has the power,
authority and legal right to enter into and perform this Agreement; and that all
actions and consents required to authorize such party to enter into this
Agreement have been duly taken and received. Each of the undersigned individuals
represents and warrants that he/she has the power, authority and legal right to
bind the corporation or limited liability company he/she purports to represent
to the terms of this Agreement by his/her signature hereto.
8. This Agreement may be executed in counterparts, each
of which shall be deemed an original, and when taken together, shall constitute
one document.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
LANDLORD:
BECO-TERMINAL LLC
By: Beco Data LLC
By: /s/
Name: Xxxxxxxxxxx Xxxxxxx Hereford
Title: President
TENANT:
INFOCROSSING, INC.
By: /s/
Name: Xxxxxxxx X. Xxxxxxx
Title: CFO
X-4
