FIRST AMENDMENT
THIS FIRST AMENDMENT (the "AMENDMENT") is made and entered into as of
April, 2005, by and between MA-NEW ENGLAND EXECUTIVE PARK, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY ("LANDLORD") and UTIX GROUP, INC., A DELAWARE
CORPORATION ("TENANT").
RECITALS
A. Landlord and Tenant are parties to that certain lease dated September
14, 2004 (the "LEASE"). Pursuant to the Lease, Landlord has leased to
Tenant space currently containing approximately 3,911 rentable square
feet (the "ORIGINAL PREMISES") described as Suite No. 140 on the 1st
floor of the building commonly known as Eight New England Executive
Park located at Eight New England Executive Park, Burlington,
Massachusetts.
B. Tenant and Landlord agree to relocate Tenant from the Original Premises
to 7,173 rentable square feet of space described as Suite No. 610 on
the 6th floor shown on EXHIBIT A attached hereto (the "SUBSTITUTION
SPACE") of the building commonly known as Seven New England Executive
Park located at Seven New England Executive Park, Burlington,
Massachusetts (the "BUILDING").
C. The Lease by its terms shall expire on January 31, 2010 ("PRIOR
TERMINATION DATE"), and the parties desire to extend the Term, all on
the following terms and conditions.
NOW, THEREFORE, in consideration of the above recitals which by this
reference are incorporated herein, the mutual covenants and conditions contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant agree as follows:
1. SUBSTITUTION.
1.01. Effective as of the Substitution Effective Date (hereinafter
defined), the Substitution Space is substituted for the
Premises and, from and after the Substitution Effective Date,
the Premises, as defined in the Lease, shall be deemed to mean
the Substitution Space containing 7,173 rentable square feet
and described as Suite No. 610 on the 6th floor of the
Building.
1.02. The Term for the Substitution Space shall commence on the
Substitution Effective Date and, unless sooner terminated
pursuant to the terms of the Lease, shall end on the Extended
Termination Date (as hereinafter defined). The Substitution
Space is subject to all the terms and conditions of the Lease
except as expressly modified herein and except that Tenant
shall not be entitled to receive any allowances, abatements or
other financial concessions granted with respect to the
Original Premises unless such concessions are expressly
provided for herein with respect to the Substitution Space.
Effective as of the Substitution Effective Date, the Lease
shall be terminated with respect to the Original Premises,
and, unless otherwise specified, "PREMISES" shall mean the
Substitution Space and "BUILDING" shall mean the building
commonly known as Seven New England Executive Park, located at
Seven New England Executive Park, Burlington, Massachusetts.
Tenant shall vacate the Original Premises as of the
Substitution Effective Date (such date that Tenant is required
to vacate the Original Premises being referred to herein as
the "ORIGINAL PREMISES VACATION DATE") and return the same to
Landlord in "broom clean" condition and otherwise in
accordance with the terms and conditions of the Lease.
2. SUBSTITUTION EFFECTIVE DATE.
2.01. The "SUBSTITUTION EFFECTIVE DATE" shall be the later to occur
of (i) May 1, 2005 (the "TARGET SUBSTITUTION EFFECTIVE DATE"),
and (ii) the date upon which the Landlord Work (as defined in
the Work Letter attached as EXHIBIT B hereto) in the
Substitution Space has been substantially completed; provided
however, that if Landlord shall be delayed in substantially
completing the Landlord work in the Substitution Space as a
result of the occurrence of a Tenant Delay (defined below),
then, for purposes of determining the Substitution Effective
Date, the date of substantial completion shall be deemed to be
the day that said Landlord Work would have been substantially
completed absent any such Tenant Delay(s). A
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"TENANT DELAY" means any act or omission of Tenant or its
agents, employees, vendors or contractors that actually delays
substantial completion of the Landlord Work, including,
without limitation, the following:
a. Tenant's failure to furnish information or approvals
within any time period specified in the Lease or this
Amendment, including the failure to prepare or
approve preliminary or final plans by any applicable
due date;
b. Tenant's selection of equipment or materials that
have long lead times after first being informed by
Landlord that the selection may result in a delay;
c. Changes requested or made by Tenant to previously
approved plans and specifications;
d. The performance of work in the Substitution Space by
Tenant or Tenant's contractor(s) during the
performance of the Landlord Work; or
e. If the performance of any portion of the Landlord
Work depends on the prior or simultaneous performance
of work by Tenant, a delay by Tenant or Tenant's
contractor(s) in the completion of such work.
The Substitution Space shall be deemed to be substantially
completed on the date that Landlord reasonably determines that
all Landlord Work has been performed (or would have been
performed absent any Tenant Delay[s]), other than any details
of construction, mechanical adjustment or any other matter,
the nonperformance of which does not materially interfere with
Tenant's use of the Substitution Space. The adjustment of the
Substitution Effective Date and, accordingly, the postponement
of Tenant's obligation to pay Rent on the Substitution Space
shall be Tenant's sole remedy and shall constitute full
settlement of all claims that Tenant might otherwise have
against Landlord by reason of the Substitution Space not being
ready for occupancy by Tenant on the Target Substitution
Effective Date. During any period that the Substitution
Effective Date is postponed and Tenant's obligation to pay
Rent for the Substitution Space is correspondingly postponed,
Tenant shall continue to be obligated to pay Rent for the
Original Premises in accordance with the terms of the Lease.
2.02. In addition to the postponement, if any, of the Substitution
Effective Date as a result of the applicability of Section
2.01. of this Amendment, the Substitution Effective Date shall
be delayed to the extent that Landlord fails to deliver
possession of the Substitution Space for any other reason
(other than Tenant Delays), including, but not limited to,
holding over by prior occupants. Any such delay in the
Substitution Effective Date shall not subject Landlord to any
liability for any loss or damage resulting therefrom. If the
Substitution Effective Date is delayed, the Extended
Termination Date shall not be similarly extended.
3. EXTENSION. The Term of the Lease is extended for a period of 4 months
and shall expire on May 31, 2010 ("EXTENDED TERMINATION DATE"), unless
sooner terminated in accordance with the terms of the Lease. That
portion of the Term commencing the day immediately following the Prior
Termination Date ("EXTENSION DATE") and ending on the Extended
Termination Date shall be referred to herein as the "EXTENDED TERM".
4. BASE RENT. As of the Substitution Effective Date, the schedule of Base
Rent payable with respect to the Premises during the remainder of the
current Term and the Extended Term is the following:
-------------------------- ----------------------- --------------------
ANNUAL RATE MONTHLY
PERIOD PER SQUARE FOOT BASE RENT
-------------------------- ----------------------- --------------------
-------------------------- ----------------------- --------------------
5/1/05 - 5/31/10 $18.30 $10,938.83
-------------------------- ----------------------- --------------------
All such Base Rent shall be payable by Tenant in accordance with the
terms of the Lease.
Landlord and Tenant acknowledge that the foregoing schedule is based on
the assumption that the Substitution Effective Date is the Target
Substitution Effective Date. If the Substitution Effective Date is
later than the Target Substitution Effective Date, the schedule set
forth above with respect to the payment of any installment(s) of Base
Rent
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for the Substitution Space shall be appropriately adjusted on a per
diem basis to reflect the actual Substitution Effective Date and the
actual Substitution Effective Date shall be set forth in a confirmation
letter to be prepared by Landlord.
5. ADDITIONAL SECURITY DEPOSIT. No additional security deposit shall be
required in connection with this Amendment.
6. TENANT'S PRO RATA SHARE. For the period commencing with the
Substitution Effective Date and ending on the Extended Termination Date
(i) the Rentable Square Footage of the Building is 199,860 square feet;
and (ii) Tenant's Pro Rata Share for the Premises is 3.5890%.
7. EXPENSES AND TAXES. For the period commencing with the Substitution
Effective Date and ending on the Extended Termination Date, Tenant
shall pay for Tenant's Pro Rata Share of Expenses and Taxes applicable
to the Premises in accordance with the terms of the Lease.
8. IMPROVEMENTS TO SUBSTITUTION SPACE.
8.01. CONDITION OF SUBSTITUTION SPACE. Tenant has inspected the
Substitution Space and agrees to accept the same "as is"
without any agreements, representations, understandings or
obligations on the part of Landlord to perform any
alterations, repairs or improvements, except as may be
expressly provided otherwise in this Amendment.
8.02. RESPONSIBILITY FOR IMPROVEMENTS TO SUBSTITUTION SPACE.
Landlord shall perform improvements to the Substitution Space
in accordance with the Work Letter attached hereto as EXHIBIT
B.
9. EARLY ACCESS TO SUBSTITUTION SPACE. If Tenant is permitted to take
possession of the Substitution Space before the Substitution Effective
Date, such possession shall be subject to the terms and conditions of
the Lease and this Amendment and Tenant shall pay Base Rent and
Additional Rent applicable to the Substitution Space to Landlord for
each day of possession prior to the Substitution Effective Date.
However, except for the cost of services requested by Tenant (e.g.
freight elevator usage), Tenant shall not be required to pay Rent for
the Substitution Space for any days of possession before the
Substitution Effective Date during which Tenant, with the approval of
Landlord, is in possession of the Substitution Space for the sole
purpose of performing improvements or installing furniture, equipment
or other personal property.
10. HOLDING OVER. If Tenant continues to occupy the Original Premises after
the Original Premises Vacation Date (as defined in Section 1 above),
occupancy of the Original Premises subsequent to the Original Premises
Vacation Date shall be that of a tenancy at sufferance and in no event
for month-to-month or year-to-year, but Tenant shall, throughout the
entire holdover period, be subject to all the terms and provisions of
the Lease and shall pay for its use and occupancy an amount (on a per
month basis without reduction for any partial months during any such
holdover) equal to twice the sum of the Base Rent and Additional Rent
due for the period immediately preceding such holding over, provided
that in no event shall Base Rent and Additional Rent during the
holdover period be less than the fair market rental for the Original
Premises. No holding over by Tenant in the Original Premises or
payments of money by Tenant to Landlord after the Original Premises
Vacation Date shall be construed to prevent Landlord from recovery of
immediate possession of the Original Premises by summary proceedings or
otherwise. In addition to the obligation to pay the amounts set forth
above during any such holdover period, Tenant also shall be liable to
Landlord for all damage, including any consequential damage, which
Landlord may suffer by reason of any holding over by Tenant in the
Original Premises, and Tenant shall indemnify Landlord against any and
all claims made by any other tenant or prospective tenant against
Landlord for delay by Landlord in delivering possession of the Original
Premises to such other tenant or prospective tenant.
11. OTHER PERTINENT PROVISIONS. Landlord and Tenant agree that, effective
as of the date of this Amendment (unless different effective dates are
specifically referenced in this Section), the Lease shall be amended in
the following additional respects:
11.01 PARKING. Effective as of the Substitution Effective Date,
Section 1 (Parking) of EXHIBIT F of the Lease shall be amended
by increasing the number of unreserved
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parking spaces to 24 by the addition of 11 unreserved parking
spaces (the "ADDITIONAL SPACES") in the Parking Facility at no
charge to Tenant during the Term. The use of the Additional
Spaces shall be subject to Section 1 (Parking) of EXHIBIT F of
the Lease.
11.02 DELETED SECTION. Effective as of the Substitution Effective
Date, in addition to the other Sections and provisions of the
Lease modified herein, Section 2 (Acceleration Option) of
EXHIBIT F of the Lease shall be deleted in its entirety and
shall be of no further force and effect.
2. MISCELLANEOUS.
12.01. This Amendment and the attached exhibits, which are hereby
incorporated into and made a part of this Amendment, set forth
the entire agreement between the parties with respect to the
matters set forth herein. There have been no additional oral
or written representations or agreements. Under no
circumstances shall Tenant be entitled to any Rent abatement,
improvement allowance, leasehold improvements, or other work
to the Substitution Space, or any similar economic incentives
that may have been provided Tenant in connection with entering
into the Lease, unless specifically set forth in this
Amendment. Tenant agrees that neither Tenant nor its agents or
any other parties acting on behalf of Tenant shall disclose
any matters set forth in this Amendment or disseminate or
distribute any information concerning the terms, details or
conditions hereof to any person, firm or entity without
obtaining the express written consent of Landlord.
12.02. Except as herein modified or amended, the provisions,
conditions and terms of the Lease shall remain unchanged and
in full force and effect.
12.03. In the case of any inconsistency between the provisions of the
Lease and this Amendment, the provisions of this Amendment
shall govern and control.
12.04. Submission of this Amendment by Landlord is not an offer to
enter into this Amendment but rather is a solicitation for
such an offer by Tenant. Landlord shall not be bound by this
Amendment until Landlord has executed and delivered the same
to Tenant.
12.05. The capitalized terms used in this Amendment shall have the
same definitions as set forth in the Lease to the extent that
such capitalized terms are defined therein and not redefined
in this Amendment.
12.06. Tenant hereby represents to Landlord that Tenant has dealt
with no broker in connection with this Amendment. Tenant
agrees to indemnify and hold Landlord, its members,
principals, beneficiaries, partners, officers, directors,
employees, mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively, the
"LANDLORD RELATED PARTIES") harmless from all claims of any
brokers claiming to have represented Tenant in connection with
this Amendment. Landlord hereby represents to Tenant that
Landlord has dealt with no broker in connection with this
Amendment. Landlord agrees to indemnify and hold Tenant, its
members, principals, beneficiaries, partners, officers,
directors, employees, and agents, and the respective
principals and members of any such agents (collectively, the
"TENANT RELATED PARTIES") harmless from all claims of any
brokers claiming to have represented Landlord in connection
with this Amendment.
12.07. Each signatory of this Amendment represents hereby that he or
she has the authority to execute and deliver the same on
behalf of the party hereto for which such signatory is acting.
[SIGNATURES ARE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Amendment as of the day and year first above written.
WITNESS/ATTEST: LANDLORD:
MA-NEW ENGLAND EXECUTIVE PARK, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
By: Equity Office Management, L.L.C.,
a Delaware limited liability company,
its non-member manager
_______________________________ By: ______________________________
Name (print): ________________ Name: ______________________________
_______________________________ Title: ______________________________
Name (print): ________________
WITNESS/ATTEST: TENANT:
UTIX GROUP, INC., A DELAWARE CORPORATION
_______________________________ By: ________________________________
Name (print): ________________ Name: ________________________________
_______________________________ Title: ________________________________
Name (print): ________________
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EXHIBIT A
OUTLINE AND LOCATION OF SUBSTITUTION SPACE
------------------------------------------
This Exhibit is attached to and made a part of the Amendment by and
between MA-NEW ENGLAND EXECUTIVE PARK, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY ("LANDLORD") and UTIX GROUP, INC., A DELAWARE CORPORATION ("TENANT") for
space in the Building located at Seven New England Executive Park, Burlington,
Massachusetts.
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EXHIBIT B
WORK LETTER
-----------
This Exhibit is attached to and made a part of the Amendment by and between
MA-NEW ENGLAND EXECUTIVE PARK, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD") and UTIX GROUP, INC., A DELAWARE CORPORATION ("TENANT") for space
in the Building located at Seven New England Executive Park, Burlington,
Massachusetts.
As used in this Workletter, the "PREMISES" shall be deemed to mean the
Substitution Space, as defined in the attached Amendment.
1. This Work Letter shall set forth the obligations of Landlord and Tenant
with respect to the improvements to be performed in the Premises for
Tenant's use. All improvements described in this Work Letter to be
constructed in and upon the Premises by Landlord are hereinafter
referred to as the "LANDLORD WORK." It is agreed that construction of
the Landlord Work will be completed at Tenant's sole cost and expense,
subject to the Allowance (as defined below). Landlord shall enter into
a direct contract for the Landlord Work with a general contractor
selected by Landlord. In addition, Landlord shall have the right to
select and/or approve of any subcontractors used in connection with the
Landlord Work.
2. Tenant shall be solely responsible for the timely preparation and
submission to Landlord of the final scope of work, including finish
specifications (called "PLANS") necessary to construct the Landlord
Work, which plans shall be subject to approval by Landlord and
Landlord's architect and engineers and shall comply with their
requirements to avoid aesthetic or other conflicts with the design and
function of the balance of the Building. Tenant shall be responsible
for all elements of the design of Tenant's plans (including, without
limitation, compliance with law, functionality of design, the
structural integrity of the design, the configuration of the Premises
and the placement of Tenant's furniture, appliances and equipment), and
Landlord's approval of Tenant's plans shall in no event relieve Tenant
of the responsibility for such design. If requested by Tenant,
Landlord's architect will prepare the Plans necessary for such
construction at Tenant's cost. Whether or not the layout and Plans are
prepared with the help (in whole or in part) of Landlord's architect,
Tenant agrees to remain solely responsible for the timely preparation
and submission of the Plans and for all elements of the design of such
Plans and for all costs related thereto. Tenant has assured itself by
direct communication with the architect and engineers (Landlord's or
its own, as the case may be) that the final approved Plans can be
delivered to Landlord on or before April 8, 2005 (the "PLANS DUE
DATE"), provided that Tenant promptly furnishes complete information
concerning its requirements to said architect and engineers as and when
requested by them. Tenant covenants and agrees to cause said final,
approved Plans to be delivered to Landlord on or before said Plans Due
Date and to devote such time as may be necessary in consultation with
said architect and engineers to enable them to complete and submit the
Plans within the required time limit. Time is of the essence in respect
of preparation and submission of Plans by Tenant. If the Plans are not
fully completed and approved by the Plans Due Date, Tenant shall be
responsible for one day of Tenant Delay (as defined in the Amendment to
which this Exhibit is attached) for each day during the period
beginning on the day following the Plans Due Date and ending on the
date completed Plans are approved. (The word "architect" as used in
this Exhibit shall include an interior designer or space planner.)
3. If Landlord's estimate and/or the actual cost of construction shall
exceed the Allowance, Landlord, prior to commencing any construction of
Landlord Work, shall submit to Tenant a written estimate setting forth
the anticipated cost of the Landlord Work, including but not limited to
labor and materials, contractor's fees and permit fees. Within 3
Business Days thereafter, Tenant shall either notify Landlord in
writing of its approval of the cost estimate, or specify its objections
thereto and any desired changes to the proposed Landlord Work. If
Tenant notifies Landlord of such objections and desired changes, Tenant
shall work with Landlord to reach a mutually acceptable alternative
cost estimate.
4. If Landlord's estimate and/or the actual cost of construction shall
exceed the Allowance, if any (such amounts exceeding the Allowance
being herein referred to as the "EXCESS COSTS"), Tenant shall pay to
Landlord such Excess Costs, plus any applicable state sales or use tax
thereon, upon demand. The statements of costs submitted to Landlord by
Landlord's contractors shall be conclusive for purposes of determining
the actual cost
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of the items described therein. The amounts payable by Tenant hereunder
constitute Rent payable pursuant to the Lease, and the failure to
timely pay same constitutes an event of default under the Lease.
5. If Tenant shall request any change, addition or alteration in any of
the Plans after approval by Landlord, Landlord shall have such
revisions to the drawings prepared, and Tenant shall reimburse Landlord
for the cost thereof, plus any applicable state sales or use tax
thereon, upon demand. Promptly upon completion of the revisions,
Landlord shall notify Tenant in writing of the increased cost which
will be chargeable to Tenant by reason of such change, addition or
deletion. Tenant, within one Business Day, shall notify Landlord in
writing whether it desires to proceed with such change, addition or
deletion. In the absence of such written authorization, Landlord shall
have the option to continue work on the Premises disregarding the
requested change, addition or alteration, or Landlord may elect to
discontinue work on the Premises until it receives notice of Tenant's
decision, in which event Tenant shall be responsible for any Tenant
Delay in completion of the Premises resulting therefrom. If such
revisions result in a higher estimate of the cost of construction
and/or higher actual construction costs which exceed the Allowance,
such increased estimate or costs shall be deemed Excess Costs pursuant
to Paragraph 4 hereof and Tenant shall pay such Excess Costs, plus any
applicable state sales or use tax thereon, upon demand.
6. Following approval of the Plans and the payment by Tenant of the
required portion of the Excess Costs, if any, Landlord shall cause the
Landlord Work to be constructed substantially in accordance with the
approved Plans. Landlord shall notify Tenant of substantial completion
of the Landlord Work.
7. Landlord, provided Tenant is not in default, agrees to provide Tenant
with an allowance (the "Allowance") in an amount not to exceed
$8,966.25 (i.e., $1.25 per rentable square foot of the Premises) to be
applied toward the cost of the Landlord Work in the Premises. If the
Allowance shall not be sufficient to complete the Landlord Work, Tenant
shall pay the Excess Costs, plus any applicable state sales or use tax
thereon, as prescribed in Paragraph 4 above. Any portion of the
Allowance which exceeds the cost of the Landlord Work or is otherwise
remaining after June 1, 2005, shall accrue to the sole benefit of
Landlord, it being agreed that Tenant shall not be entitled to any
credit, offset, abatement or payment with respect thereto.
8. This Exhibit shall not be deemed applicable to any additional space
added to the Premises at any time or from time to time, whether by any
options under the Lease or otherwise, or to any portion of the original
Premises or any additions to the Premises in the event of a renewal or
extension of the original Term of the Lease, whether by any options
under the Lease or otherwise, unless expressly so provided in the Lease
or any amendment or supplement to the Lease.
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