FIRST AMENDMENT TO OFFICE LEASE
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This Amendment is made and entered into as of the 15th day of April,
1988, by and between Southlake Partners #1, a Kansas general partnership,
hereinafter referred to as Lessor, and INFORMIX Software, Inc., a Delaware
corporation, hereinafter referred to as Lessee.
RECITALS
A. Lessee is the owner and holder of a leasehold estate in the land
and buildings known as 00000 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxx and 00000
Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxx (the "Premises"), said leasehold estate being
under and pursuant to that certain Office Lease between Lessor and Lessee (then
known as Innovative Software, Inc.), dated as of August 15, 1987 (the "Office
Lease"), notice of which was given by Memorandum of Lease, dated as of August
15, 1987, recorded in the Register of Deeds Office for Xxxxxxx County, Kansas on
October 14, 1987, in Volume 2683, Page 94.
B. On February 8, 1988, Informix Software, Inc., a California
corporation, merged into Lessee and Lessee became a wholly-owned subsidiary of
Informix Corporation, a Delaware corporation, and Lessee changed its name to
INFORMIX Software, Inc.
C. Southlake has made application to The Travelers Insurance
Company, a Connecticut corporation ("Lender") for a loan in the amount of
$7,400,000 (the "Loan"), the terms and conditions of such Loan being set forth
in that certain Application for Mortgage Loan No. CKC-31-87 (the "Commitment"),
D. The Commitment requires, among other things, that as a condition
to making the Loan, the office Lease must be acceptable to Lender and consistent
with the terms and provisions of the Loan Documents (as defined in the
Commitment).
X. Xxxxxx and Lessee do now desire to supplement, amend and modify
the Office Lease as hereinafter stated.
NOW, THEREFORE, in consideration of the recitals, incorporated herein
by this reference, the covenants and agreements hereafter set forth and other
good and valuable considerations, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, it is agreed as follows:
1. RENTAL. Section 2 of the Office Lease shall be amended to
read in its entirety as follows:
2. RENTAL:
The Base Rental for the Premises shall be at the rate of Nine
Hundred Fifty-Three Thousand Four Hundred Sixty-Six Dollars
($953,466.00) annually for the first five (5) years of the original term
and One Million Forty-Eight Thousand Eight Hundred Thirteen Dollars
($1,048,813.00) annually for the second five (5) years of the original
term, payable in equal monthly installments, with proration for any
partial month's occupancy, without deduction or set off, except as
herein provided, each due and payable to Lessor on the first day of each
and every month of the term hereof in advance. Any rentals not received
by Lessor within ten (10) days after this due date set forth herein
shall be subject to a late charge of five percent (5%) of the amount
thereof for each full or partial calendar month said rental remains
unpaid. Failure by Lessee to pay said late charge within thirty (30)
days
after receipt of notice from Lessor that it is due shall in addition to
any other default consitute a default of this Lease by Lessee. Lessor
acknowledges receipt of Eighty-Two Thousand Two Hundred Sixty-Eight
Dollars ($82,268.00) paid to Lessor by Lessee concurrently with the
execution of this Lease as a deposit, to be applied as rent for the
first month of the term hereof, any balance to be applied to the second
month's rent. All rental payments and other payments required under
this Lease shall be made to Lessor at P. 0. Xxx 00000, Xxxxxx Xxxx,
Xxxxxxxx 00000, or at such other place as may be requested by Lessor in
writing. Lessor acknowledges that Lessee has requested Lessor to
construct and/or pay for tenant finish improvements in addition to those
specified in Exhibit B to this Lease, at an additional cost not to
exceed One Million Dollars ($1,000,000), and Lessor and Lessee
acknowledge and agree that any agreement by Lessor to construct and/or
pay for such additional tenant finish improvements shall be conditioned
upon the annual rent under this Lease being increased to an amount to be
mutually agreed to by Lessor and Lessee.
2. Lessor and Lessee acknowledge and agree that possession of the
Premises was delivered to Lessee on April 15, 1988 and that in accordance with
Section 4 of the Office Lease, the commencement date of the term of the Office
Lease is April 15, 1988 and the expiration date of the term of the Office Lease
is April 30, 1998. Lessee hereby waives any and all right and option to
terminate the Office Lease under and pursuant to Section 4 of the Office Lease.
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3. Lessee acknowledges and agrees that Lender, its successors and
assigns, shall have no obligation respecting or be responsible for any security
deposit (or the proceeds thereof if the security deposit is in the form of a
letter of credit or a promissory note) provided for under Section 20 of the
Office Lease, unless such security deposit is actually received by Lender.
4. Notwithstanding anything to the contrary in the Office Lease,
Lessee recognizes and agrees that as long as the mortgage provided for in the
Commitment continues as a lien against the Premises, the provisions of the Loan
Documents (as defined in the Commitment) respecting insurance or the use and
disposition of insurance proceeds shall govern and control and take precedence
over any conflicting provisions, if any, in the Office Lease, except to the
extent such insurance proceeds are payable with respect to personal property and
trade fixtures owned by Lessee or any subtenant. For the purposes of this
paragraph a conflict shall be deemed to exist between the Loan Documents and the
Office Lease only if and to the extent the provisions of the Office Lease cannot
be performed by the respective parties thereto without violation of a provision
contained in the Loan Documents.
5. Lessor and Lessee agree that no amendment, modification or
supplement to the Office Lease will be effective without the prior written
consent of Lender, its successors or assigns, which consent shall not be
unreasonably withheld, and any of the aforesaid shall, without prior written
consent, be null and void and of no force or effect; provided, however, that
from and after the date that all obligations under the Loan Documents have been
paid in full, this Section 5 shall be of no further force or effect.
6. Lessee acknowledges that Lessor has or will make an Assignment of
Leases (as defined in the Commitment) and a collateral assignment of rents.
Lessee agrees that in the event that Lessee acquires all of the partnership
interests in Lessor or acquires title to the Premises (as defined in the Office
Lease), there shall be no merger of the Lease or Lessee's interest in the Lease
with the interest of Lessor, and, upon written notice from Lender or its
successors and assigns that Lender has succeeded to the interests of Lessor
under the Office Lease, or has terminated the license granted to Lessor to
collect rent, Lessee will pay any and all rent under the Office Lease to Lender
with or without judicial action or the appointment of a receiver. Lessor hereby
agrees that Lessee may comply with any such payment or performance instructions
from Lender without the necessity of any further consent from, and regardless of
any objections of Lessor.
7. Lessor and Lessee hereby acknowledge and agree that Lender shall
be entitled to receive two percent (2%) of the outstanding loan balance under
the Loan as an assumption fee in
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the event that Lessee purchases Lenexa Industrial Park, Inc.'s interest in
Lessor pursuant to paragraph 5.02 or 5.04 of Lessor's Partnership Agreement at
any time while the Mortgage provided for in the Commitment continues as a lien
against the Premises. As between Lessor and Lessee it is agreed that in the
event of such purchase, and except to the extent, if any, otherwise provided in
such Partnership Agreement, the assumption fee due to Lender shall be paid by
Lessee.
8. Any and all documents and instruments referred to in the Office
Lease to be entered into by either or both Lessor and Lessee in connection with
or arising out of the Lease shall be subject to the prior written approval of
Lender, which approval shall not be unreasonably withheld.
9. Lessor and Lessee acknowledge that the plat of "Southlake Third
Plat", recorded in Plat Book 68 at Page 50 under Document No. 1771063, in the
Office of the Register of Deeds for Xxxxxxx County, Kansas, affects the Premises
and that from and after the date hereof, it shall be proper for all purposes in
connection with the Office Lease to refer to the Premises by reference to such
plat, as more particularly set forth in Exhibit A attached hereto and made a
part hereof and that the final addresses of the buildings constructed on the
Premises are those referred to in Exhibit A attached hereto rather than the
addresses referred to in Exhibit A to the Office Lease.
10. From and after the date hereof, the lease between the parties
hereto relating to the Premises shall consist of the Office Lease, as amended
and modified by this First Amendment to Office Lease. All covenants and
conditions contained in said Office Lease not expressly or by implication
amended by this First Amendment to Office Lease shall be and remain in full
force and effect. Any capitalized term used herein and not otherwise defined
shall have that meaning as set forth in the Office Lease.
11. The covenants and agreements herein contained shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
to Office Lease to be effective as of the day and year first above written,
SOUTHLAKE PARTNERS #1, a Kansas
general partnership
By: LENEXA INDUSTRIAL PARK, INC.,
a Kansas corporation,
general partner
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxx, President
Secretary
By: INFORMIX SOFTWARE, INC.,
a Delaware corporation,
general partner
ATTEST:
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxx,
Xxxxxx X. Xxxxxx
Vice President of Operations
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Vice President of Finance
Chief Financial Officer
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EXHIBIT A
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The Premises consist of the land described below, together with the
improvements to be constructed by Lessor, as called for elsewhere in this
Lease, all of which shall be known and numbered as 00000 Xxxxxxx Xxxxxxxxx,
Xxxxxx, Xxxxxx 00000 and 00000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxx 00000.
Legal description of the land is as set forth below:
Xxxx 0 xxx 0, Xxxxx 0. XXXXXXXXX XXXXX XXXX, a subdivision in the
City of Lenexa, Xxxxxxx County, Kansas, according to the
recorded plat thereof.
AMENDMENT TO MEMORANDUM OF LEASE
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THIS AMENDMENT TO MEMORANDUM OF LEASE is made and entered into as of
April 15, 1988, by and between LENEXA INDUSTRIAL PARK, INC., a Kansas
corporation, having an office at 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx
00000, hereinafter referred to as Lessor, and SOUTHLAKE PARTNERS #1 a Kansas
partnership, having an office at 0000 Xxxxxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000,
hereinafter referred to as Lessee.
WITNESSETH:
WHEREAS, Lessor and Lessee entered into that certain Memorandum of
Lease dated as of August 15, 1987, recorded on page 90, Book 2683 in the Office
of the Register of Deeds for Xxxxxxx County, Kansas (the "Memorandum");
WHEREAS, Lessor and Lessee entered into that certain Correction of
Memorandum of Lease dated February 19, 1988, recorded on page 1, Book 2749 in
the Office of the Register of Deeds for Xxxxxxx County, Kansas (the "Correction
Memorandum");
WHEREAS, additional easements appurtenant have been granted with
respect to the premises described in Exhibit A to the Correction Memorandum;
NOW, THEREFORE, it is agreed as follows:
Lessor, in consideration of the rents reserved and the terms,
covenants, agreements and conditions contained in that certain Lease between
Lessor and Lessee, dated as of August 15, 1987, as amended by that certain First
Amendment to Lease between Lessor and Lessee, dated as of April 15, 1988
(hereinafter collectively referred to as the "Lease"), hereby leases to and
Lessee hereby takes the premises described in Exhibit A hereto subject to all of
the terms, covenants agreements and conditions contained in said Lease,
including but not limited to the conditions specified in the Memorandum,
IN WITNESS WHEREOF, Lessor and Lessee have executed this Amendment to
Memorandum of Lease as of the day and year first above written.
LENEXA INDUSTRIAL PARK, INC.
ATTEST:
By /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, President
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx, Secretary LESSOR
SOUTHLAKE PARTNERS #1, by its
general partners
LENEXA INDUSTRIAL PARK, INC.
ATTEST: By /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, President
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx, Secretary
INFORMIX SOFTWARE, INC.
ATTEST:
By /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx,
Vice President of
Xxxxxx X. Xxxxxxx, Operations
Assistant Secretary
By /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
Vice President of Finance,
Chief Financial Officer
STATE OF KANSAS
ss.
COUNTY OF XXXXXXX
This instrument was acknowledged before me on April 11, 1988 by Xxxxxx X.
Xxxxxx, Vice President of Operations and Xxxxx X. Xxxxxxxx, Vice President of
Finance and chief Financial Officer of Informix Software, Inc., a Delaware
corporation and a general partner of Southlake Partners #1, a Kansas general
partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year last above written.
/s/ Xxxx X. Bynne
Notary Public
[SEAL OMITTED]
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STATE OF Missouri )
)ss.
COUNTY OF Xxxxxxx )
This instrument was acknowledged before me on April 13, 1988 by Xxxx
X. Xxxxxx, President of Lenexa Industrial Park, Inc., a Kansas corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year last above written.
/s/ Xxxxxxx X. Xxxxx
Notary Public
My Commission Expires:
SEAL OMITTED
STATE OF Missouri
ss.
COUNTY OF Xxxxxxx
This instrument was acknowledged before me on April 13, 1988 by Xxxx
X. Xxxxxx, President of Lenexa Industrial Park, Inc., a Kansas corporation and a
general partner of Southlake Partners of a Kansas general partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year last above written.
/s/ Xxxxxxx X. Xxxxx
Notary Public
My Commission Expires:
SEAL OMITTED
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EXHIBIT A
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LEGAL DESCRIPTION
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Xxxx 0 xxx 0, Xxxxx 0, XXXXXXXXX XXXXX XXXX, a subdivision in the City
of Lenexa, Xxxxxxx County, Kansas, according to the recorded plat thereof.
Together with the following easements, all recorded in the Office of
the Register of Deeds of Xxxxxxx County, Kansas:
1. An easement for roadway purposes over the following described property
as established by the instrument filed October 14, 1987 as File No.
1747473, in Volume 2683, at Page 77:
A strip of land being 30 feet in width, lying 15 feet on each side of
the following described centerline:
Commencing at the point of intersection of the West right-of-way line of
Lakeview Avenue with the North right-of-way line of 113th Street, both
as dedicated by 000XX XXXXXX, XXXXXXXX AND XXXXXXXX AVENUE, a
subdivision of land in the North 1/2 of Section 17, Township 13, Range
24, now in the City of Lenexa, Xxxxxxx County, Kansas; thence North 90
degrees 00 minutes 00 seconds West along the North right-of-way line of
said 000xx Xxxxxx, a distance of 4.95 feet to a point of curvature;
thence Westerly and Southwesterly along said North right-of-way line,
and along a curve to the left having a radius of 1830.00 feet and a
central angle of 9 degrees 29 minutes 59 seconds, a distance of 303.41
feet to the Point of Beginning; thence North 9 degrees 29 minutes 59
seconds West a distance of 83.22 feet; thence North 23 degrees 08
minutes 06 seconds East a distance of 168.17 feet; thence North 0
degrees 00 minutes 00 seconds East a distance of 210.37 feet to the
Point of Termination.
2. An easement for roadway purposes over the following described property
as established by the instrument filed April 1, 1988 as File No.
1780698, in Volume 2766, at Page 893:
All that part of the Northwest Quarter of Section 17, Township 13, Range
24, Lenexa, Xxxxxxx County, Kansas, described as follows:
Beginning at a point on the South line of Xxx 0, Xxxxx 0, XXXXXXXXX
XXXXX XXXX, a subdivision of land, that is 370.80 feet West of the
Southeast corner thereof; thence South 90degree00'00" East, along said
South line, a
distance of 90.80 feet, to the Westerly line of a "30.00 foot
Ingress-Egress Easement" described in the instrument recorded under
Document No. 1747473 in Volume 2683 at Page 77; thence South
0degree00'00" West, along said Westerly line, a distance of 118.95 feet;
thence North 37degree21'20" West, a distance of 149.65 feet, to the
Point of Beginning.
3. An easement for drainage purposes over the following described property
as established by the instrument filed April 1, 1988 as File No.
1780702, in Volume 2766, at Page 908:
3 strips of land 10.00 feet in width, across Xxxxx 0, XXXXXXXXX XXXXXX
XXXX, a subdivision of land in Lenexa, Xxxxxxx County, Kansas, lying
5.00 feet on each side of the following described centerlines:
Commencing at the intersection of the Easterly line of said Tract 3,
with the South line of Xxx 0, Xxxxx 0. Xxxxxxxxx Xxxxx Xxxx; thence
North 37degree21'20" West, along said Easterly line, a distance of 25.32
feet, to a point designed and hereinafte referred to as Point "A";
thence continuing North 37degree21'20" West, along said Easterly line, a
distance of 5.84 feet; thence North 2degree20'59" East, continuing along
said Easterly line, a distance of 141.13 feet, to a point designed and
hereinafter referred to as Point "B"; thence continuing North
2degree20'59" East, along said Easterly line, a distance of 16.87 feet;
thence North 22degree17'32" West, along said Easterly line, a distance
of 213.02 feet, to the Point of Beginning of the 1st centerline to be
herein described; thence South 53degree3'43" West, a distance of 28.42
feet, to the point of termination of this centerline; ALSO,
Beginning at the aforesaid Point "B", as the Point of Beginning of the
2nd centerline to be herein described; thence South 85degree11'11" West,
a distance of 34.71 feet, to the point of termination of this
centerline; ALSO,
Beginning at the aforesaid Point "A". as the Point of Beginning of the
3rd centerline to, be herein described; thence South 7degree41'23" West,
a distance of 33.13 feet, to the point of termination of this centerline.
Exhibit A-2
