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EXHIBIT 10.22
FIRST AMENDMENT TO
DEED OF LEASE
THIS FIRST AMENDMENT TO DEED OF LEASE (hereinafter, the "First
Amendment") made as of the Nineteenth (19th) day of December, 1997, by and
between XXXXX XXXXX INVESTMENT COMPANY ("Landlord"), a Delaware corporation
having an office at c/o Rim Pacific Management, 0000 Xxxxxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxx, Xxxxxxxx 00000, and TCSI CORPORATION ("Tenant"), a Nevada
corporation having an office at 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx, 00000.
RECITALS
A. COW HOLDINGS LIMITED, a Delaware corporation (hereinafter, "Former
Landlord") and Tenant entered into that certain Deed of Lease dated July 25,
1996, (hereinafter, the "Lease") for certain office space containing
approximately eleven thousand eight hundred forty-three (11,843) square feet of
office space situated on the fifth (5th) floor (the "Premises") of the building
located at 0000-0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx (the "Building,"
the Building and the land on which the same is situate being herein referred to
as the "Property").
B. Landlord has succeeded to Former Landlord's interest in the
Property.
C. Landlord and Tenant desire to provide for an early termination of
the Lease.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Recitals. The foregoing recitals are true and correct and are herein
incorporated by this reference.
2. Definitions. Section 2 of the Lease is hereby amended as follows:
(a) by redefining the term "Expiration Date" in Section 2b to read
as follows:
"December 19, 1997, unless otherwise sooner terminated in accordance
with the provisions of this Lease.";
(b) by redefining the term "Landlord's Mailing Address" in Section
2(d) to read as follows:
"Xxxxx Xxxxx Investment Company
00000 Xxxxxxxxx Xxxxxxxxx
Xxxxx X
Xxxxxx, Xxxxxxxxxx 00000
Attention: Asset Manager
with a copy to:
Rim Pacific Management
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000
Attention: Building Manager."
3. First Oportunity to Lease Additional Space. Section 42 of the Lease
is hereby deleted in its entirety.
4. No Further Alterations to or Subleasing or Assignment of the
Premises. Tenant acknowledges and agrees that, from and after Tenant's
execution of this First Amendment, Tenant shall have no right to perform, or
cause to be performed, any alterations in the Premises, nor shall Tenant have
any right to sublease, or to permit the use or occupancy by any person other
than Tenant and Tenant's employees of, all or any portion of the Premises. In
additon, from and after the Tenant's execution of this First Amendment, in the
event of any fire or other casualty, or condemnation, of all or any
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portion of the Premises, (i) Landlord shall have no obligation to repair or
restore any portion of the Premises, (ii) Landlord may, in Landlord's sole
discretion, elect to terminate the Lease with respect to the Premises.
5. Surrender of Premises. Notwithstanding anything contained in this
First Amendment or in any other provision of the Lease to the contrary, Tenant
hereby agrees to surrender possession of the Premises, including, but not
limited to, all improvements thereto (excluding trade fixtures and equipment
which Tenant is entitled to remove pursuant to the Terms of the Lease, Tenant
hereby specifically acknowledging and agreeing that Tenant has no right to
remove any supplemental heating, ventilation or air conditioning equipment
installed in or upon, or serving, the Premises), no later than five o'clock
(5:00) p.m. eastern standard time on the Expiration Date as amended hereby
(i.e,; December 19, 1997) in accordance with all terms and conditions of the
Lease, free and clear of all tenancies and occupancies, "broom clean" and
otherwise in the condition required under the Lease, THE TENANT HEREBY WAIVING
ANY AND ALL NOTICES TO QUIT PROVIDED FOR IN THE LEASE OR PURSUANT TO CURRENT OR
FUTURE LAW. On or before the Expiration Date (as amended hereby), Tenant shall
also (a) return to the Landlord all keys, all parking passes or other access
devices (if any) then in the possession, custody or subject to the control of
the Tenant, and (b) remove all personal property of the Tenant and any
alterations or leasehold improvements which the Tenant is required to remove
from the Premises. Sections 17 and 18 of the Lease shall apply to Tenant's
surrender of the Premises as if December 19, 1997 was the original Expiration
Date of the Lease. If Tenant fails to surrender the Premises as required hereby
on or before December 19, 1997, Tenant's failure to surrender the Premises shall
be considered an Event of Default under the Lease, and Landlord may pursue any
remedy available to it under the terms of the Lease or at law or in equity.
Without limiting the preceding sentence, Tenant hereby agrees that, if Tenant
fails to surrender possession of the Premises in accordance with this Section 5
on or before December 19, 1997, (a) the Tenant shall pay to the Landlord as
damages for the Tenant's holdover a monthly sum (pro-rated on a daily basis for
any partial month of holdover) equal to two hundred percent (200%) of the Base
Rent in effect immediately prior to the Expiration Date, and (b) the Tenant
shall defend, indemnify and hold the Landlord harmless from and against any and
all claims, costs, damages, expenses, fees, liabilities or suits asserted
against or incurred by the Landlord as a direct or indirect result of such
holdover. If Tenant fails for any reason to surrender possession of the Premises
in accordance with the provisions of this Section 5 on or before 5:00 p.m. on
December 27, 1997, then, in addition to Landlord's remedies as set forth in the
preceding sentence, the Surrender Fee set forth in this First Amendment shall be
retained by Landlord as additional liquidated damages, and, at Landlord's
option, this First Amendment may be declared null and void ab initio. Tenant
specifically acknowledges and agrees that no provision of the Lease (including,
but not limited to Section 34 thereof) or applicable law shall be deemed to
extend the dates set forth in this Section 5, or to excuse or relieve Tenant
from liability as set forth herein with respect to the failure to timely
surrender the Premises as required pursuant to this Section 5. The Tenant hereby
represents and warrants to the Landlord that the Tenant has not brought, stored
or used any hazardous or toxic substances, materials or wastes in or upon the
Premises, nor has the Tenant suffered any other person or entity to do any of
the same.
6. Brokerage. Tenant warrants and represents that no broker or agent
other than Xxxxxx Realty Group and KLNB, Inc. was instrumental in consummating
this First Amendment and that no conversations or prior negotiations were had by
Tenant with any other broker or agent concerning this First Amendment. Tenant
agrees to defend, indemnify and hold Landlord harmless from and against any and
all costs (including, but not limited to, court costs, investigation costs, and
reasonable attorneys' fees), damages, claims, fees, expenses, liabilities or
suits arising by reason of a breach by Tenant of the aforesaid representation
and warranty, or by reason of any claim, demand or suit for commissions or other
compensation with respect to this First Amendment claimed by any broker or agent
(including, but not limited to Xxxxxx Realty Group and KLNB, Inc.) which may
arise out of any agreement or dealings or alleged agreement or dealings between
Tenant and any such agent or broker.
7. Interpretation. Except as otherwise defined herein, all defined
terms and phrases herein shall have the same meaning as set forth in the Lease.
In the event of any conflict between the Lease and this First Amendment, the
terms of this First Amendment shall control.
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8. Confirmation. Except as otherwise expressly modified by the terms of
this First Amendment, the Lease and each and every provision thereof shall
remain unchanged and in full force and effect. Nothing herein contained shall be
deemed to waive Tenant's obligation to pay any sums due Landlord from Tenant as
of the date hereof. Tenant acknowledges that Landlord is not in default in the
performance of any of its obligations under the Lease and that Tenant has no
claims or set-offs of any kind against Landlord. The Tenant acknowledges and
agrees that the Tenant shall have no right to collect or share in any rents in
respect of any occupancy of all or any portion of the Leased Premises by any
party after the Termination Date.
9. Binding Effect. All of the covenants contained in this First
Amendment, including, but not limited to, all covenants of the Lease as modified
hereby, shall be binding upon and shall inure to the benefit of the parties
hereto and their respective permitted successors and assigns.
10. Effectiveness. This First Amendment shall not be effective and
binding unless and until that date on which the Landlord and a replacement
tenant acceptable to the Landlord (in the Landlord's sole discretion) shall
execute and deliver a lease acceptable to the Landlord (in the Landlord's sole
discretion) for the Premises (a "Replacement Lease").
11. Surrender Fee. As additional consideration for Landlord's agreement
to enter into this First Amendment, Tenant shall pay to Landlord, upon delivery
of the executed First Amendment, a non-refundable "Surrender Fee" of Forty
Thousand Dollars ($40,000.00).
12. Authority. Tenant and each person signing this First Amendment on
behalf of Tenant hereby covenants and warrants that Tenant has full right and
authority to enter into and to perform this First Amendment according to the
terms hereof, and that each person signing this First Amendment on behalf of
Tenant has been authorized to do so by all requisite corporate action.
13. Further Assurances. The Tenant agrees to execute and deliver such
further assurances of the Tenant's surrender of possession of the Premises, and
the termination of the Lease, as may be necessary or desirable, in the
Landlord's reasonable discretion, in connection with the leasing, financing,
refinancing or sale of the Leased Premises or the Building in which the same is
located, or for any other purpose.
14. Survival. The terms of this First Amendment, as well as all
indemnifications of the Landlord contained in the Lease, shall survive the
termination of the Lease; provided that, nothing in this paragraph 14 shall be
deemed to amend the terms of the Lease as set forth therein.
[signatures appear on the following page]
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IN WITNESS WHEREOF, the parties hereto have set their hands and affixed
their respective seals the day and year first above written.
LANDLORD:
XXXXX XXXXX INVESTMENT COMPANY, a
Delaware corporation
[Corporate Seal]
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
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Title: Assistant Secretary
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By:
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Name:
-----------------------------------
Title:
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TENANT:
TCSI CORPORATION, a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: Vice President
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L.S.
[Corporate Seal]
By: /s/ Ram Banin
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Name: Ram Banin
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Title: President
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