EXHIBIT 10.22
AMENDMENT NO. 1 TO LEASE AGREEMENT
THIS AMENDMENT NO. 1 TO LEASE is made and entered into as of June 21, 1999,
by and between THE CONCOURSE JOINT VENTURE, a California general partnership
("Lessor"), and XXXXXXXXXX.XXX, a Delaware corporation ("Lessee"), with respect
to the following facts:
RECITALS
A. Lessor and Lessee have heretofore made and entered into that certain
Standard Industrial/Commercial Multi-Tenant Lease - Net (the "Lease"), dated
June ____,1999, with respect to those certain Premises located at 00 Xxxxxxx,
Xxxxxx, Xxxxxxxxxx.
B. In connection with the Lease, Lessor, Lessee, and The Irvine Company
have made and entered into a tri-party agreement (the "Tri-Party Agreement") on
the terms and conditions set forth in that certain Agreement, a true and correct
copy of which is attached hereto as Exhibit "A". The purpose of the Tri-Party
Agreement is to obtain the consent required from The Irvine Company for Lessee
to operate a "retail business" on the premises as more particularly described in
said Tri-Party Agreement. In consideration of said Tri-Party Agreement, Lessor
has agreed to pay to The Irvine Company the sum of $0.02 per square foot of
Premises occupied by Lessee per month during the term of the Lease (the "Lease
Term Payment"), and during any extended term of the Lease an adjusted monthly
amount to be determined in the manner set forth in said Tri-Party Agreement (the
"Extended Term Payment").
X. Xxxxxx and Lessee desire by this Agreement to provide for monthly
additional rent payable by Lessee to Lessor under the Lease in order to
reimburse Lessor for the sums Lessor is required to pay The Irvine Company under
the Tri-Party Agreement, and to provide additional security to Lessor in the
form an additional letter of credit in respect of said payment obligation.
TERMS AND CONDITIONS
NOW THEREFORE, in consideration of the foregoing recitals, the mutual
covenants contained herein, and other good and valuable consideration, receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Tri-Party Agreement. Lessor and Lessee hereby acknowledge and agree
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that the Tri-Party Agreement, and their respective rights and obligations
thereunder, are hereby incorporated into and are a part of the Lease. Lessee
hereby covenants and agrees to reimburse Lessor, as provided for at Paragraph 2,
below, for all sums payable by Lessor to The Irvine Company under or pursuant to
the Tri-Party Agreement.
2. Additional Rent. Notwithstanding anything to the contrary set forth at
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paragraph 1.5 of the Lease, paragraph 58 of the Lease Addendum, on elsewhere in
the Lease, Lessor and Lessee hereby acknowledge and agree that in addition to
the Monthly Base Rent payable by Lessee during the Lease Term, Lessee shall pay
to Lesson throughout the Lease Term, as additional rent, the sum of $2,106.00
per month, payable at the same time as Base Rent is payable. In addition, said
$2,106.00 monthly additional rent amount shall be adjusted (i) during the Lease
Term at the same time, and to the same extent, as the payment
that is required to be made by Lessor to The Irvine Company under the Tri-Party
Agreement is adjusted as provided therein, and (ii) during any extended term of
the Lease so that it is identical to the Extended Term Payment required to be
paid to The Irvine Company under the terms of the Tri-Party Agreement.
3. Letter of Credit. Notwithstanding anything to the contrary set forth at
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Paragraph 75 of the Lease Addendum, prior to the Commencement Date of the Lease,
Lessee shall deliver to Lessor, as additional security for Lessee's obligations
under the Lease, including without limitation Lessee's obligation to pay to
Lesson the additional rent set forth at paragraph 2, above, a letter of credit
(the "Letter of Credit"), from a financial institution and in a form reasonably
satisfactory to Lessor, in the principal amount of $425,000. The Letter of
Credit shall be in full force and effect for the entire Lease Term; provided,
however, in the event that Lessee is not at the time in material breach of its
Lease obligations, which breach is uncured and ongoing, the principal amount of
the Letter of Credit may be reduced to $325,000 after the expiration of the
first three (3) years of the Lease Term, and to $225,000 after the first four
(4) years of the Lease Term, after which time the Letter of Credit shall remain
at $225,000 for the remainder of the Lease Term. The Letter of Credit shall
provide that Lessor may from time to time draw upon the Letter of Credit by
written demand to the issuer thereof, executed by an officer of Lessor, stating
that Lessee is in breach of the Lease and identifying the amount to be drawn
thereon in order to compensate Lessor for damages it has sustained as a result
of said breach. In the event Lessor shall at any time sell or otherwise transfer
the Premises, Lessee shall be obligated to obtain a replacement Letter of Credit
in the name of the transferee within thirty (30) days written demand therefor by
Lessor. Lessee acknowledges and agrees that Lessor shall have the right to draw
upon said letter of credit in full in the event Lessee has not provided to
Lessor a substitute Letter of Credit in the form required hereby at least thirty
(30) days prior to the expiration of the then-effective Letter of Credit.
4. Miscellaneous Provisions.
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3.1 Captions. Any titles or captions contained in this Agreement are
for convenience only and shall not be deemed to qualify the meaning of any
provision herein.
3.2 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their heirs, executors, administrators,
successors and assigns.
3.3 Entire Agreement. This Agreement, together with any exhibits and
any other documents necessary to effectuate the terms of this Agreement, contain
the entire agreement among the parties hereto with respect to the transactions
contemplated hereby and contains all of the terms and conditions thereof and
supersedes all prior agreements and understandings relating to the subject
matter hereof. No changes or modification of or additions to this Agreement
shall be valid unless the same shall be in writing and signed by all parties
hereto.
3.4 Severability. The provisions of this Agreement shall be deemed
severable arid the invalidity and unenforceability of any one or more of the
provisions hereof shall not affect the validity and enforceability of the other
provisions hereof.
3.5 Waiver. The failure of any party hereto to insist, in any one or
more instances, upon performance of the terms or conditions of this Agreement
shall not be construed as a waiver of future performance of any such term,
covenant or condition and the obligations of each party with respect thereto
shall continue in full force and effect.
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3.6 Fees and Expenses. The parties hereto shall each pay their own
respective costs, fees and expenses, including, but not limited to, fees and
expenses of counsel, accountants and other professionals, incurred in connection
with the negotiation and execution of this Agreement and the consummation of the
transactions contemplated hereby.
3.7 Attorneys' Fees. If any party hereto commences an action against
any other party hereto to enforce any of the terms hereof or because of the
breach by any party hereto of any of the terms hereof, the losing or defaulting
party shall pay the prevailing party reasonable attorneys' fees, costs and
expenses incurred in connection with the prosecution or defense of such action
(whether by arbitration or in court of law), and in connection with any action
to collect any judgment rendered thereunder.
3.8 Construction. This Agreement has been reviewed by all parties
hereto and their respective attorneys, and all parties have had a full
opportunity to negotiate the contents hereof. The parties expressly waive any
common law or statutory rule of construction that ambiguities be construed
against the drafter of this Agreement.
3.9 Assignment. Except as otherwise expressly permitted hereunder,
the rights and obligations of each party hereunder shall not be assignable
without the prior written consent of the other parties hereto.
3.10 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California.
3.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original without production of
the others and all of which shall constitute one and the same instrument.
(Signatures Appear on Next Page)
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IN WITNESS WHEREOF, this Agreement has been entered into by the parties as
of the date first above written.
THE CONSOURSE JOINT VENTURE, a California general
partnership
By: The Northwestern Mutual Life Insurance
Company, a Wisconsin corporation, general partner
By: Northwestern Investment Management
Company, its wholly owned subsidiary and
authorized representative
By: /s/:Xxxxxx X. O'Dell
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Name: Xxxxxx X. O'Dell
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Its: Managing Director
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By: Olive, Inc., a Delaware corporation
By: /s/: Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Its: Vice President
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XXXXXXXXXX.XXX., a Delaware corporation
By: /s/: Xxxxx X. Xxxxxxxxxx
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Printed Name: Xxxxx X. Xxxxxxxxxx
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Its: Assistant Secretary
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By: /s/: Xxx Xxxxxxx
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Printed Name: Xxx Xxxxxxx
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Its: Vice President
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