FIRST AMENDMENT TO
OFFICE BUILDING LEASE
This First Amendment to Office Building Lease (this "Amendment") is made
and entered into by and between MediQuik Services, Inc., a Delaware corporation
("Tenant") and 4295/4299 San Xxxxxx Associates, LP, a California limited
partnership ("Landlord") upon the following terms and conditions:
WHEREAS, Tenant and Landlord entered into the Office Building Lease dated
September 7, 2000 (the "Lease"), relating to the lease by Tenant of Suite 300,
stipulated under the Lease to consist of 10,500 square feet of net rental area
(but later determined to consist of 10,781 square feet), of the building located
at 0000 Xxx Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxx Texas (the "Original Premises"); and
WHEREAS, Tenant and Landlord now desire to amend the Lease as set forth
below.
NOW THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars ($10.00) paid by Tenant to Landlord and the mutual covenants and
agreements herein contained and other good and valuable consideration, the
receipt and adequacy of which considerations are hereby expressly acknowledged,
Landlord and Tenant agree as follows:
1. The Original Premises is reduced to approximately 5,092 square feet
of net rentable area (the "Net Premises"), as shown on the attached
Exhibit A (and is deemed for the purpose of the Lease to contain
5,092 square feet of net rentable area). The suite number of the New
Premises will remain suite number 300. The New Premises is 47% of
the Original Premises.
2. The approximately 5,689 square feet of remaining net rentable area
(the "Relinquished Premises"), as also shown on Exhibit A, will be
known as suite number 350. The Relinquished Premises is 53% of the
Original Premises.
3. Landlord will construct (i) separate entry and exit doors to the New
Premises and (ii) the common area corridor and demising wall shown
on Exhibit A to separate the New Premises from the Relinquished
Premises prior to the commencement date of any other new lease of
space on the floor. At such time, Landlord will also add to or
modify the heating and air conditioning systems servicing the New
Premises so that they function properly, as determined by the
Landlord in its reasonable judgement.
4. Until the entry and exit doors, corridor and demising wall(s) are
constructed, Tenant will (i) occupy the New Premises and will vacate
the Relinquished Premises as soon as possible after the date of this
Amendment, but in no event later than October 31, 2001, (ii) use the
New Premises without the corridor and demising wall(s) separating it
from the Relinquished Premises, and (iii) not use the Relinquished
Premises without Landlord's prior written consent, which may be
granted or withheld in Landlord's sole and absolute discretion.
5. Tenant will occupy the New Premises in its "AS IS" condition,
subject to the requirements of Sections 3 and 4.
6. Tenant agrees that any additional improvements by Tenant to the New
Premises are subject to Landlord's approval, to be granted or
withheld in Landlord's sole and absolute discretion, and shall be
paid for entirely by Tenant.
7. Tenants' annual rent rate from October 1, 2001 through October 31,
2001 will be $17.00 per square foot, and Tenant's monthly base rent
will be $7,213.67. Tenant's annual rent rate from November 1, 2001
through October 31, 2002 will be $17.46 per square foot, and
Tenant's monthly base rent will be $7,409.88. Base rent beginning
November 1, 2002 through the end of the lease term will continue to
be adjusted pursuant to Articles 2.g. and 5.2a. of the Lease.
8. Tenant will continue to pay operating expense pass-through charges
in accordance with Section 5.3 of the Lease; provided, that
effective November 1, 2001, Tenant's proportionate share of such
expenses will decrease from 11.8% to 5.7%, to reflect the
proportionate decrease in the space occupied by tenant (5,092 square
feet/89,282 square feet = 5.7%).
9. Article 2.m. of the Lease is hereby modified to reduce Tenant's
parking rights from 30 to 14 spaces (47% x 30).
10. Tenant must pay Landlord the following expenses associated with
permitting Tenant to move to the New Premises (the "Obligation"):
a. Landlord's Construction Costs (defined in Section 11) for the
Section 3 modifications.
b. The MediQuik Lease Profit, as defined on Exhibit B.1 attached
hereto and made a part hereof for all purposes. A hypothetical
example of the calculation of Landlord's Bargained for
MediQuik Lease Profit is set forth on Exhibit B.2.
c. Landlord's attorney fees.
All of such payments will be made in accordance with Section 13 of this
Amendment.
The MediQuik Lease Profit will be determined at the time a lease for the
Relinquished Premise is entered into by Landlord according to Exhibit B.1.
and added to the Obligation. Landlord's Construction Costs and Landlord's
attorney fees will be determined as incurred. Landlord will provide Tenant
a monthly accounting and copies of paid invoices for the items comprising
the Obligation.
Landlord, in its sole discretion, will determine (i) the amount of rent to
be charged on the Relinquished Premises, (ii) all other terms of the lease
for the Relinquished Premises, and (iii) the amounts to be paid by
Landlord for tenant improvement costs and leasing commissions relating to
the Relinquished Premises; provided, however, that Landlord will not
intentionally act in bad faith in making such determinations.
11. Landlord's Construction Costs are all costs related to the construction of
the New Premises, the Relinquished Premises and the tenant finish for the
Relinquished Premises, including, but not limited to, actual architectural
and engineering costs, construction costs, a construction management fee
not to exceed 5% of architectural, engineering and construction costs, and
all applicable sales and related taxes payable in connection with such
costs (collectively, "Landlord's Construction Costs").
12. The Obligation is payable by Tenant to Landlord as follows:
a. Promises to Pay: For value received, Tenant promises to pay to
Landlord, at the address to which Tenant pays rent under the Lease,
a principal sum equal to the Obligation, in legal and lawful money
of the Untied States of America, with interest on the outstanding
principal from the date the Obligation is incurred, until paid, at
the rates set out below. Interest will be computed on a per annum
basis of a year of 360 days and for the actual number of days
elapsed, unless such calculation would result in a rate greater than
the highest rate permitted by applicable law, in which case interest
shall be computed on a per annum basis of a year of 365 days or 366
days in a leap year, as the case may be.
b. Term of Obligation: Tenant will have 36 months to pay the
Obligation, commencing October 1, 2001, and ending September 30,
2004 (the "Maturity Date").
c. Payment Terms: Beginning May 1, 2002, Tenant will make monthly
payments of interests on the Obligation, in arrears, as set forth in
subsection d below. Beginning on October 1, 2002 and thereafter
throughout the term of the Obligation, Tenant will make monthly
payments of principal and interest on the Obligation, in areas as
set forth in subsection d below. On the Maturity Date, any amount
remaining outstanding on the Obligation will be immediately due and
payable. Payments are due on the first day of each month, and are
late if not received by the fifth day of each month.
d. Interest Rate and Principal Payments: The Obligation shall accrue
interest (payable in full monthly beginning May 1, 2002) and
required principal payments (payable in full monthly beginning
October 1, 2002) as set forth below:
Annual Monthly Monthly
Period Months Interest Rate Interest Rate Principal Payment
------------- ------------- ------------- -----------------
1-12 6.0% .50% -0-
13-17 9.0% .75% $ 500.00
18-24 12.0% 1.00% $ 750.00
25-30 15.0% 1.25% $1,000.00
31-36 18.0% 1.50% $1,250.00
(Period Month 1 = October 1, 2001)
e. Interest Calculation: Interest will accrue on the Obligation
beginning on October 1, 2001. The total of all interest that accrues
from October 1, 2001 through April l, 2002 will be added to and
shall become a part of the Obligation. Interest is calculated on the
unpaid Obligation to the date each payment is received, and the
payment made credited first to the discharge of the interest accrued
and the balance to the reduction of principal. Interest will be
charged for the actual number of days elapsed utilizing the interest
rate in effect as applied to the actual amount of the Obligation.
f. Default Rate: The Obligation will bear interest from the date of
default until paid at the lesser of (a) eighteen percent (18%) per
annum, or (b) the maximum lawful rate.
g. Late Charge: Landlord may assess Tenant a "Late Charge" on any
payment due under the Obligation which is not received within five
(5) days of the date due in an amount equal to 10% of the amount
which is late or $500.00, whichever is greater. Acceptance of a late
payment by Landlord will not waive Tenant's liability for a Late
Charge. Late Charges may be assessed at any time during the term of
the Obligation. Failure to assess Late Charges against any one late
payment will not waive Landlord's right to assess it as to any other
late payment. Landlord retains the right to assess all Late Charges
on the Maturity Date.
h. Prepayment Allowed: Upon ten (10) days prior written notice to
Landlord Tenant reserves the right to prepay, prior to the Maturity
Date, all or any part of the Obligation. Any prepayments shall be
applied first to accrued interest and then to principal. Tenant will
provide written notice to Landlord of any such prepayment of all or
any part of the principal at the time thereof. All payments and
prepayments of principal or interest on the Obligation shall be made
in lawful money of the United States of America in immediately
available funds, at the address of Landlord indicated above, or such
other place as Landlord designates in writing to Tenant. All partial
prepayments of the Obligation shall be applied to the last
installments payable in their inverse order of maturity.
i. Default: It is expressly provided that upon default in the punctual
payment of the Obligation or any part hereof, principal or interest,
as the same shall become due and payable, or upon the occurrence of
an event of default specified in the Lease, Landlord may, at its
option, without further notice or demand, (i) declare the
outstanding principal balance of and accrued but unpaid interest on
the Obligation at once due and payable, (ii) refuse to expend any
additional amounts under the Obligation, (iii) pursue any and all
other rights, remedies and recourses available to Landlord,
including but not limited to any such rights, remedies or recourses
under the Lease at law or in equity, or (iv) pursue any combination
of the foregoing; and in the event default is made in the prompt
payment of the Obligation when due or declared due, and the same is
placed in the hands of an attorney for collection, or suit is
brought on same, or the same is collected through probate,
bankruptcy or other judicial proceedings, then the Tenant agrees and
promises to pay all costs of collection, including reasonable
attorney's fees.
j. Waiver: Tenant expressly waives presentment and demand for payment,
notice of default, notice of intent to accelerate maturity, notice
of acceleration of maturity, notice of protest, notice of dishonor,
and all other notices and demands for which waiver is not prohibited
by law, and diligence in the collection thereof. No delay or
omission of Landlord in exercising any right hereunder shall be a
waiver of such right or any other right under the Obligation.
k. No Usury Intended, Usury Savings Clause: In no event shall interest
contracted for, charged or received hereunder, plus any other
charges in connection herewith which constitutes interest, exceed
the maximum interest permitted by applicable law. Any amounts of
such interest or other charges previously paid to Landlord
determined to be in excess of the amounts permitted by applicable
law shall be applied by Landlord to reduce the Obligation or, at the
option of Landlord, be refunded. To the extent permitted by
applicable law, determination of the legal maximum amount of
interest shall at all times be made by amortizing, prorating,
allocating and spreading in equal parts during the period of the
full stated term of the Obligation, all interest at any time
contracted for, charged or received from Tenant hereof in connection
with the Obligation, so that the actual rate of interest on account
of such Obligation is uniform through the term hereof.
l. Survival: The terms of the Obligation will survive the termination
of the Lease.
13. Concurrently herewith, Tenant will issue and deliver to Landlord 35,000
restricted shares of common stock of MediQuik Services, Inc.
14. For the period beginning October 1, 2001 and continuing through October
31, 2005, Tenant shall remain liable for payment to the Landlord of
Project Operating Cost payments on the Relinquished Premises less Project
Operating Cost payments on the Relinquished Premises which future tenants
of such space become obligated to pay Landlord. Calculation of Project
Operating Cost Payments payable by Tenant and the procedures for payment
of Project Operating Costs Payments shall be in accordance with
Section 2.0 and 5.3 of the Lease, and the term Project Operating Costs
shall have the meaning given such term in the Lease.
15. Landlord may at any time and without prior notice to Tenant, remove
Tenant's sign located on the central panel of the building monument sign
located at the northwest corner of 0000 Xxx Xxxxxx, Xxxxxxx, Xxxxxx
Xxxxxx, Xxxxx. If Landlord removes such sign, provided Tenant is not in
default under the Lease, Landlord, at Tenant's expense, will promptly
install a sign strip bearing Tenant's name on the project monument sign
panel used for tenants occupying space in the building located at 0000 Xxx
Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx.
16. Landlord has the option, in Landlord's sole and absolute discretion, to
terminate the Lease at any time on sixty (60) days prior written notice to
Tenant.
17. Except as set forth above, the Lease remains unchanged and in full force
and effect, and the terms and conditions of the Lease are hereby ratified
and affirmed by Tenant and Landlord as so ratified and affirmed are hereby
republished and incorporated herein by this reference thereto. Capitalized
terms used herein but not defined shall have the meaning given to them in
the Lease.
18. In the event any of the terms of this Amendment conflict which the terms
of the Lease, the terms of this Amendment will control.
19. This Amendment may be executed in counterparts, each of which when taken
together shall be deemed an original, but all of which shall be deemed for
all purposes one and the same instrument. Counterpart signatures may be
transmitted by facsimile and this Amendment shall be binding upon
transmission of all signed counterparts to each party.
Executed the 26th day of October to be effective as of the 1st day of October,
2001.
Tenant
MediQuik Services, Inc.
A Texas corporation
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: CEO
Landlord:
4295/4299 San Xxxxxx Associates, LP,
a California limited partnership
By: Xxxxxxxx Xxxxxxx Group,
a California corporation
its General Partner
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: President
