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Exhibit 10.9.1
FIFTH LEASE AMENDMENT
THIS FIFTH LEASE AMENDMENT (the "Amendment") is executed this 13th day of
August, 1998, by and between DUKE REALTY LIMITED PARTNERSHIP, an Indiana limited
partnership ("Landlord"), and ENTEX INFORMATION SERVICES, INC., a Delaware
corporation ("Tenant").
W I T N E S S E T H :
WHEREAS, Landlord and Tenant entered into a certain lease dated May 15,
1995, as amended October 27, 1995, November 6, 1995, April 18, 1996 and July 1,
1996 (collectively, the "Lease"), whereby Tenant leased from Landlord certain
premises consisting of approximately 111,192 rentable square feet of space (the
"Original Premises") and 721 rentable square feet of additional space ("Third
Additional Space") in an office building commonly known as Governor's Pointe,
located at 0000 Xxxx Xxxxx, Xxxxx, Xxxx 00000; and
WHEREAS, Landlord and Tenant desire to expand the Original Premises and
the Third Additional Space by approximately 29,071 rentable square feet (the
"Fourth Additional Space") which is comprised of space on the second floor of
the Building ("Second Floor Space") and the third floor of the Building ("Third
Floor Space") as depicted on EXHIBIT A-4 attached hereto; and
WHEREAS, Landlord and Tenant desire to amend certain provisions of the
Lease to reflect such expansion, changes and additions;
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants herein contained and each act performed hereunder by the parties,
Landlord and Tenant hereby agree that the Lease is amended as follows:
1. Incorporation of Recitals. The above recitals are hereby incorporated
into this Amendment as if fully set forth herein.
2. Amendment of Article 1. Lease of Premises.
(a) Commencing February 1, 1999 or such earlier time as Tenant occupies the
Fourth Additional Space ("Fourth Additional Space Commencement Date"), Article
1, Section 1.01 of the Lease is hereby amended by adding Exhibit A-4, attached
hereto and incorporated herein by reference, on which the Fourth Additional
Space is depicted. Collectively, the Original Premises, the Third Additional
Space and the Fourth Additional Space shall hereinafter be referred to as the
"Leased Premises".
(b) Commencing on the Fourth Additional Space Commencement Date,
Article 1, Section 1.02 is hereby amended by deleting subsections B, C, D, E
and K and substituting the following in lieu thereof:
B. Rentable Area: approximately 140,984 square feet;
C. Building Expense Percentage: 100%;
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D. Minimum Annual Rent:
Original Premises:
February 1, 1999 - July 17, 1999 $ 524,395.81 (5 mos., 17 days)
July 18, 1999 - July 17, 2000 $1,134,158.40 per year
July 18, 2000 - July 17, 2005 $1,245,350.40 per year
Third Additional Space:
February 1, 1999 - July 17, 1999 $ 3,316.99 (5 mos., 17 days)
July 18, 1999 - July 17, 2000 $ 7,173.96 per year
July 18, 2000 - July 17, 2005 $ 7,894.92 per year
Fourth Additional Space:
February 1, 1999 - January 31, 2000 $ 319,781.04 per year
February 1, 2000 - January 31, 2001 $ 327,920.88 per year
February 1, 2001 - January 31, 2002 $ 336,060.72 per year
February 1, 2002 - January 31, 2003 $ 344,491.32 per year
February 1, 2003 - January 31, 2004 $ 353,212.68 per year
February 1, 2004 - January 31, 2005 $ 361,933.92 per year
February 1, 2005 - July 17, 2005 $ 171,512.63 (5 mos., 17 days);
E. Monthly Rental Installments:
Original Premises:
February 1, 1999 - July 17, 2000 $ 94,513.20 per month
July 18, 2000 - July 17, 2005 $ 103,779.20 per month
Third Additional Space:
February 1, 1999 - July 17, 2000 $ 597.83 per month
July 18, 2000 - July 17, 2005 $ 657.91 per month
Fourth Additional Space:
February 1, 1999 - January 31, 2000 $ 26,648.42 per month
February 1, 2000 - January 31, 2001 $ 27,326.74 per month
February 1, 2001 - January 31, 2002 $ 28,005.06 per month
February 1, 2002 - January 31, 2003 $ 28,707.61 per month
February 1, 2003 - January 31, 2004 $ 29,434.39 per month
February 1, 2004 - January 31, 2005 $ 30,161.16 per month
February 1, 2005 - July 17, 2005 $ 30,912.16 per month;
K. Addresses for payments and notices:
Landlord: Duke Realty Limited Partnership
0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
With Payments to: Duke Realty Limited Partnership
X.X. Xxx 000000
Xxxxxxxxxx, XX 00000-0000
Tenant: Entex Information Services, Inc.
0000 Xxxx Xxxxx
Xxxxx, XX 00000
With a Copy to: Entex Information Services, Inc.
Attn: General Counsel
0 Xxxxxxxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000
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4. Incorporation into Section 2.02. Construction of Tenant
Improvements. The following shall be added to Section 2.02 of the Lease:
"Landlord agrees to provide an allowance of Six Dollars and
Fifty Cents ($6.50) per rentable square foot of the Fourth Additional
Space for the cost of tenant finish improvements for the Fourth
Additional Space ("Fourth Additional Space Allowance"). Tenant shall be
responsible for the costs of any tenant finish improvements which
exceed the Fourth Additional Space Allowance. Landlord shall pay for
space planning and architectural constructing drawings for the Fourth
Additional Space which costs shall not be deducted from the Fourth
Additional Space Allowance.
Landlord agrees to perform and complete the work on the tenant
finish work for the Fourth Additional Space as determined by Tenant and
shall give Tenant written notice of the day on which Landlord expects
to complete such work. Landlord shall warrant the tenant finish work in
the Fourth Additional Space for one (1) year excluding normal wear and
tear and damage caused by the acts or omissions of Tenant.
Upon completion of the work in the Fourth Additional Space,
Tenant shall execute a letter of understanding as referred to in
Section 2.03 of the Lease."
5. Deletion of Section 18.19. Right of First Refusal. Tenant's
right of first refusal as set forth in Section 18.19 of the Lease is hereby
deleted and of no further force or effect.
6. Amendment of Section 18.21. Option to Terminate. Section
18.21 of the Lease is hereby amended to delete Tenant's option to terminate the
Lease at the end of the forty-eighth (48th) month of the Lease Term and to
increase the stated Termination Fee is Tenant exercises its right to terminate
the Lease at the end of the eighty-fourth (84th) month of the Lease Term to One
Million One Hundred Thirty-nine Thousand Three Hundred Ninety-one Dollars
($1,139,391,000).
7. Fourth Additional Space Commencement Date. If the Fourth
Additional Space is not available for Landlord to commence tenant finish work
on or before December 7, 1998, then the Fourth Additional Space Commencement
Date shall be adjusted to the earlier of the date that Landlord delivers the
Fourth Additional Space to Tenant complete with any tenant finish improvements
being completed by Landlord and this Amendment shall be revised to reflect
such new Fourth Additional Space Commencement Date. Notwithstanding the
foregoing, the Fourth Additional Space Commencement Date shall not be deferred
beyond the date on which Landlord would have been able to deliver the Leased
Premises with the tenant finish improvements being completed, but for delays
caused by the acts or omissions of Tenant. In addition, Landlord shall take
immediate legal action to gain possession of the Third Floor Space should it
not be available for tenant finish work by December 7, 1998. Notwithstanding
the above, if the Second Floor Space is not available on or before December 7,
1998, then this Amendment shall be adjusted to reflect the Third Floor Space
only and the Building Expense Percentage, Minimum Annual Rent, Monthly Rental
Installments and Fourth Additional Space Allowance shall be reduced
proportionately. If the Third Floor Space is not available to Landlord on or
before January 31, 1999, then Tenant may terminate this Amendment upon written
notice to Landlord on or before February 10, 1999. If Landlord has not
completed the tenant finish work in the Fourth Additional Space on or before
March 31, 1999 and such delay is not due to the acts of Landlord, then Tenant
may at its option complete such tenant finish
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improvements and invoice Landlord for the reasonable costs of such tenant finish
improvements not to exceed the Allowance, or Tenant may terminate this Amendment
upon written notice to Landlord on or before April 10, 1999. The Minimum Annual
Rent and Annual Rental Adjustment for the Fourth Additional Space shall not
commence until the Fourth Additional Space Commencement Date, unless the Fourth
Additional Space Commencement Date is delayed as a result of the acts or
omissions of Tenant.
8. Tenant's Representations and Warranties. The undersigned represents
and warrants to Landlord that (i) Tenant is duly organized, validly existing and
in good standing in accordance with the laws of the state under which it was
organized; (ii) all action necessary to authorize the execution of this
Amendment has been taken by Tenant; and (iii) the individual executing and
delivering this Amendment on behalf of Tenant has been authorized to do so, and
such execution and delivery shall bind Tenant. Tenant, at Landlord's request,
shall provide Landlord with evidence of such authority.
9. Examination of Amendment. Submission of this instrument for
examination or signature to Tenant does not constitute a reservation or option,
and it is not effective until execution by and delivery to both Landlord and
Tenant.
10. Definitions. Except as otherwise provided herein, the capitalized
terms used in this Amendment shall have the definitions set forth in the Lease.
11. Incorporation. This Amendment shall be incorporated into and made a
part of the Lease, and all provisions of the Lease not expressly modified or
amended hereby shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
on the day and year first written above.
LANDLORD:
DUKE REALTY LIMITED PARTNERSHIP,
WITNESSES: an Indiana limited partnership
/s/ Xxxxx Xxxx
----------------------- By: Duke Realty Investments, Inc.,
Xxxxx Xxxx its general partner
-----------------------
(Printed) By: /s/ Xxxxx X. Xxxx
-------------------------------
/s/ Xxxxxxx Xxxxxx Xxxxx X. Xxxx
----------------------- Vice President and
Xxxxxxx Xxxxxx General Manager
-----------------------
(Printed)
TENANT:
ENTEX INFORMATION SERVICES, INC.,
a Delaware corporation
WITNESSES:
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxxxxx
----------------------- -------------------------------
Xxxxxx X. Xxxxx
----------------------- Printed: Xxxx Xxxxxxxxx
(Printed) --------------------------
Title: Executive Vice President,
----------------------------
/s/ Xxxxx Xxxx Operations
-----------------------
Xxxxx Xxxx
-----------------------
(Printed)
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STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxxx X. Xxxx, by me known and by me known to be the Vice President
and General Manager of Duke Realty Investments, Inc., an Indiana corporation,
the general partner of Duke Realty Limited Partnership, an Indiana limited
partnership, who acknowledged the execution of the foregoing "Fifth Lease
Amendment" on behalf of said partnership.
WITNESS my hand and Notarial Seal this 18th day of August, 1998.
[NOTARIAL SEAL STATE OF OHIO] /s/Xxxxx Xxxx
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Notary Public
XXXXX XXXX
Xxxxx Xxxx -------------------------------
Notary Public, State of Ohio Printed Signature
My Commission Expires July 22, 2002
My Commission Expires: 7-22-02
My County of Residence: Xxxxxxxx
STATE OF NEW YORK )
) SS:
COUNTY OF WESTCH. )
Before me, a Notary Public in and for said County and State, personally
appeared Xxxx Xxxxxxxxx, by me known and by me known to be the EXEC. VICE PRES.
of Entex Information Services, Inc., a Delaware corporation, who acknowledged
the execution of the foregoing "Fifth Lease Amendment" on behalf of said
corporation.
WITNESS my hand and Notarial Seal this 6th day of AUG, 1998.
/s/ Xxxxxxxx X. X'Xxxx
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Notary Public
Xxxxxxxx X. X'Xxxx
Notary Public, State of New York
No. 4874787
Qualified by Westchester County
Commission Expires November 19, 1998
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(Printed Signature)
My Commission Expires: ----------------------
My County of Residence: WESTCHESTER
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