Exhibit 10.9
SECOND AMENDMENT
TO
XXXXXX XXXXX LAKESIDE PHASE I OFFICE LEASE
THIS SECOND AMENDMENT ("Second Amendment") is made and entered into as of
the 20th day of April, 2004, by and between XXXXXX XXXXX LAKESIDE, LLC, an
Arizona limited liability company ("Lessor"), and MEDAIRE, INCORPORATED, an
Arizona corporation ("Lessee").
RECITALS
A. Lessor and Lessee entered into that Office Lease dated March 7, 2002, as
supplemented and modified by the First Amendment dated March 11, 2003
(collectively, the "Lease"), with respect to certain office space containing
14,407 square feet of usable area and 16,424 square feet of rentable area
("Premises").
B. Lessee desires to provide its own janitorial service for the Premises at
its expense and Lessor is willing to allow Lessee to do, so, subject to the
terms and conditions hereafter set forth.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants set forth herein,
Lessor and Lessee hereby agree as follows:
1. Defined Terms. Unless otherwise expressly defined in this Second
Amendment, all capitalized terms used herein shall have the meanings assigned to
such terms as set forth in the Lease.
2. Lessee's Right to Provide Own Janitorial Service. Lessor and Lessee
hereby agree that, notwithstanding any provisions to the contrary in Articles 4
and 8 in the Lease, commencing April 1, 2004, Lessor shall discontinue
janitorial service for the interior of the Premises, and Lessee shall provide
its own janitorial services within the Premises (but not outside the Premises),
so long as Lessee complies with the following requirements (referred to herein
as the "Performance Standards"):
2.1 the level of janitorial service provided by Lessee shall be
appropriate for a class A office development such as Xxxxxx Xxxxx Lakeside and
shall in any event equal or exceed the level of janitorial service provided by
Lessor to other premises within the Building; and
2.2 the company engaged by Lessee to provide janitorial service shall
be reputable with significant experience in cleaning premises within class A
office developments, and shall constitute Lessee's contractor; the indemnity
provision set forth in Article 13 of the Lease shall apply with respect to all
activity, work, and other acts or omissions of such janitorial company, its
agents, employees or contractors; and
2.3 before Lessee allows any janitorial company to enter upon the
Premises, Lessee shall cause said company to comply with Lessor's requirements
for independent contractors, including the insurance requirements set forth on
Schedule 1 attached to this Second Amendment; and
2.4 in no event shall Lessee, nor any janitorial company engaged by
Lessee, be entitled to use any facilities within the Building outside of the
Premises to provide such janitorial service, including, without limitation, any
janitor closets, utility rooms, or restrooms outside of the Premises; and
2.5 Lessee shall advise its janitorial company that Lessee's situation
with respect to the cleaning of its Premises is unique within the Building, and
shall cause its janitorial company not to solicit other tenants within the
Building, either directly or indirectly; and
2.6 Lessee's janitorial company shall perform its services during
non-business hours designated by Lessor from time to time to avoid disturbing
other tenants and to preserve the professional image of the Project.
3. Modification of Base Rent and Expense Stop. Commencing April 1, 2004,
until the date on which Lessee no longer provides its own janitorial service in
compliance with the Performance Standards, the following shall apply:
3.1 commencing May 1, 2004, Lessee shall receive a credit, in arrears,
against monthly installments of Base Rent otherwise due under the Lease in an
amount equal to $672.33 per month (14,407 usable square feet times $.56 per
square foot divided by 12) if the Performance Standards were met during the
previous month; and
3.2 the "Expense Stop" set forth in the Basic Lease Information in the
Lease shall be reduced from $6.00 to $5.44 (i.e., a reduction of $.56).
4. Inspection of Premises. Lessor shall have the right to inspect the
Premises from time to time to ensure that the Performance Standards are being
met.
5. Lease Otherwise Unchanged. Except as otherwise set forth in this
Amendment, the Lease shall remain unchanged and in full force and effect.
6. Binding Amendment. This Amendment shall be binding upon and inure to the
benefit of the successors and assigns of Lessee and Lessor.
IN WITNESS WHEREOF, Lessor and Lessee have executed the foregoing Second
Amendment effective as of the date set forth above.
LESSOR:
XXXXXX XXXXX LAKESIDE, LLC, AN ARIZONA
LIMITED LIABILITY COMPANY
BY: SUNCOR DEVELOPMENT COMPANY, AN
ARIZONA CORPORATION, AUTHORIZED
MEMBER
BY: /s/ Xxxxxxxx Xxxxx
------------------------------------
TITLE: Vice-President
---------------------------------
LESSEE:
MEDAIRE, INCORPORATED, an Arizona
corporation
By: /s/ Xxxxx Xxxxxxxxxx
------------------------------------
Title: Vice-President
---------------------------------
SCHEDULE1
[Lessor's Requirements to be attached]
