EXHIBIT 10.9
FIRST AMENDMENT TO SUBLEASE AGREEMENT
This First Amendment dated as of October 30, 2002 (the "First
Amendment") to that certain Sublease Agreement dated as of September 24, 2002
(the "Sublease") is executed by and between Color Kinetics, Incorporated
("Sublessor") and SmartBargains, Inc., a Delaware corporation ("Sublessee"). All
capitalized terms used herein, unless otherwise defined, shall have the meanings
ascribed to them in the Sublease.
Now therefore, for good and valuable consideration and the receipt and
sufficiency of which are herewith acknowledged the parties agree as follows:
1. Section 2. Roof Access. is hereby amended by adding the
following provision at the end of Section 2: "Subject to Landlord's prior
written consent, Sublessee shall be entitled to install two (2) air conditioning
units (maximum of five (5) tons rating each) and related piping from Premises to
the roof (collectively, the "Equipment") on the rooftop of the Building,
provided that Sublessee shall pay Sublessor $750 per month for the entire Term
such right, which Sublessor shall pay to Landlord. Such payment to be made by
Sublessee to Sublessor beginning on the date that such installation work
commences and on one (1) business day prior to the first day of each month
thereafter that such Equipment is installed on the rooftop. The location of all
of the Equipment, all flashing, supports, penetrations, patching and similar
details, shop drawings and specifications shall be subject to Landlord's prior
written approval before any Equipment installation work is commenced.
"Notwithstanding anything in the Sublease or this First Amendment to the
contrary, Sublessor shall pay to Landlord all amounts required to be paid by
Sublessee pursuant to this paragraph 2 (in advance, on or before the first day
of each month), regardless of whether or not Sublessor receives such amounts
from Sublessee."
2. This First Amendment may be executed in any number of
counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, shall be deemed to be an original, and all of
which, when taken together, shall constitute but one and the same First
Amendment. Delivery of an executed counterpart of this First Amendment by
facsimile shall be equally as effective as delivery of an original executed
counterpart of this First Amendment. Any party delivering an executed
counterpart of this First Amendment by facsimile also shall deliver an original
executed counterpart of this First Amendment but the failure to deliver an
original executed counterpart shall not affect the validity, enforceability, and
binding effect of this First Amendment.
3. Section 21 of the Sublease shall apply to this First
Amendment.
In all other respects the Sublease remains unchanged and is hereby
ratified and confirmed.
Executed as of the date first above written.
Color Kinetics, Incorporated SmartBargains, Inc.
By:/s/ Xxxxx X. Xxxxxxx By:/s/ Xxxxxx X. XxXxxxxxxx
------------------------------------- --------------------------------
Name: Xxxxx X. Xxxxxxx Name:Xxxxxx X. XxXxxxxxxx
Title: VP Finance Title: EVP/CFO
-2-
CONSENT OF LANDLORD
The undersigned, being the Landlord under the Main Lease referred to
herein, hereby consents to the execution and delivery of the aforesaid First
Amendment to Sublease Agreement dated October 30, 2002, between Color Kinetics,
Incorporated and SmartBargains, Inc. As a material inducement to granting its
Consent, Landlord is relying on the agreement by Color Kinetics, Inc. to pay to
Landlord all amounts required to be paid to Landlord by Color Kinetics, Inc.
pursuant to paragraph 2 of the Sublease Agreement as amended by this First
Amendment to Sublease Agreement.
Executed as of this 4th day of November, 2002.
RAK Old South Associates Limited Partnership
By: RAK Washington Ventures Limited
Partnership, its General Partner
By: RAK Washington Corp., its General
Partner
By: /s/ Xxxxx Kohana
--------------------------------
Name: Xxxxx Kohana
Title: President
-3-
