EXHIBIT 10.8(a)
FIRST AMENDMENT TO LEASE
THIS AGREEMENT is made and entered into as of the 1st day of January, 1997,
by and between FLORIDA ACQUISITION FUND ESPERANTE, LTD., a Florida limited
partnership (successor in interest to Esperante, Limited Partnership), 000
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter referred
to as "Landlord") and XXXXXXXXX INTERNATIONAL, INC., a Delaware corporation, 000
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter
referred to as "Tenant").
W I T N E S S E T H :
WHEREAS, the parties have entered into that certain Lease dated March 24,
1988 (the "Lease") pursuant to which Landlord has leased to Tenant and Tenant
has leased from Landlord 10,046 square feet of rentable area on the fifteenth
floor of the Esperante, Office Building located in West Palm Beach, Florida,
said premises being described in more detail in the Lease (hereinafter
referred to as "Demised Premises"); and
WHEREAS, the parties desire to extend the Term of the Lease and to modify
and amend some of the other terms and conditions of the Lease as hereafter
provided;
NOW THEREFORE, in consideration of Ten Dollars ($10.00) and other valuable
consideration, each to the other in hand paid, the receipt and sufficiency
thereof being hereby acknowledged, the parties do hereby agree that the Lease
shall be and the same hereby is amended and modified as follows:
1. DEFINITIONS. All terms used herein shall have the same meaning
as set forth in the Lease unless otherwise expressly stated herein.
2. DEMISED PREMISES. EXHIBIT "A" attached to the original Lease and
reflecting the Demised Premises as being located on the thirteenth (13th) floor
is hereby deleted from the Lease and replaced with EXHIBIT "A-1" reflecting the
Demised Premises as being located on the fifteenth (15th) floor.
3. TERM. The Term of the Lease, as identified in Paragraph 3.1 of
the Lease, is hereby extended so that the Term of the Lease shall not terminate
on June 30, 1999, but instead shall terminate on December 31, 2006 (unless
terminated sooner pursuant to other provisions of the Lease).
4. ANNUAL BASE RENT. Paragraph 5.1 of the Lease hereby is deleted
and replaced with the following:
"5.1 Tenant agrees to pay to Landlord for use of the Demised Premises, in
lawful money of the United States, a base annual rental (hereinafter "Annual
Base Rent") in accordance with the following schedule:
DATES ANNUAL SQ. PAYMENTS
FT. RATE -----------------------
ANNUAL MONTH
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
1-1-97 to
12-31-97 $23.00/sq. ft. $231,058.00 $19,254.83
--------------------------------------------------------------------------------
1-1-98 to
12-31-98 $23.00/sq. ft. $231,058.00 $19,254.83
--------------------------------------------------------------------------------
1-1-99 to $23.00/sq. ft. $231,058.00 $19,254.83
12-31-99
--------------------------------------------------------------------------------
1-1-00 to $23.00/sq. ft. $231,058.00 $19,254.83
12-31-00
--------------------------------------------------------------------------------
1-1-01 to $24.00/sq. ft. $241,104.00 $20,092.00
12-31-01
--------------------------------------------------------------------------------
1-1-02 to $24.00/sq. ft. $241,104.00 $20,092.00
12-31-02
--------------------------------------------------------------------------------
1-1-03 to $24.00/sq. ft. $241,104.00 $20,092.00
12-31-03
--------------------------------------------------------------------------------
1-1-04 to $24.00/sq. ft. $241,104.00 $20,092.00
12-31-04
--------------------------------------------------------------------------------
1-1-05 to $24.00/sq. ft. $241,104.00 $20,092.00
12-31-05
--------------------------------------------------------------------------------
1-1-06 to $24.00/sq. ft. $241,104.00 $20,092.00
12-31-06
--------------------------------------------------------------------------------
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The above noted Annual Base Rent shall be due and payable without further notice
or demand and without set-off or counterclaim in equal monthly installments in
advance on the first day of each calendar month commencing as of January 1,
1997. Notwithstanding anything herein to the contrary, the cost of living
adjustment set forth in Paragraph 5.5 of the Lease shall not be applied to any
Annual Base Rent payment to be made by Tenant to Landlord under Paragraph 5.1 of
this Lease with respect to that portion of the Lease Term occurring after
January 1, 1997."
5. ADDRESS FOR PAYMENT OF RENT. The last sentence in Paragraph 5.2
of the Lease is hereby deleted and replaced with the following: "All payments
required hereunder shall be made at the office of Landlord at 000 Xxxxxxxx
Xxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx, Xxxxxxx 00000, or at such other place as may
be designated in writing by Landlord from time to time and shall be made without
any set-off or counterclaim whatsoever."
6. PARKING SPACES. Paragraph 22.4 of the Lease is hereby deleted
and replaced with the following:
"22.4 Tenant and its employees shall use only assigned parking spaces
designated by Landlord and no other parking spaces. Landlord reserves the right
to change said designations from time to time, at its discretion. Tenant shall
have twenty-eight (28) assigned parking spaces, fourteen (14) of which shall be
covered and reserved and the remaining fourteen (14) of which shall be covered
and unreserved. From January 1, 1997 through the remainder of the Lease Term,
Tenant shall pay a monthly parking fee of Seventy-Five and No/100ths Dollars
($75.00) per space for each of the fourteen (14) covered reserved parking spaces
and Sixty-Five and No/100ths Dollars ($65.00) per space for each of the fourteen
(14) covered unreserved parking spaces assigned to it. This fee shall be due
each month with Tenant's monthly installments of Annual Base Rent and shall be
deemed to be Additional Rent and shall be subject to all terms, provisions,
conditions and covenants of this Lease pertaining to defaults in the payments of
rent. Landlord shall not be liable for any damage to, or theft of, vehicles or
the contents thereof while in or about the Building or appurtenant parking
areas.
Landlord shall set aside unreserved spaces for use by the customers,
clients and invitees of any and all tenants of the Building. Tenant shall have
the equal joint and several right with all other tenants for the use of such
spaces by its customers, clients and invitees."
7. NOTICE ADDRESS. The notice addresses for Landlord and Tenant
specified in Paragraph 28.1 are hereby deleted and replaced with the following:
" Landlord: Florida Acquisition Fund Esperante, Ltd.
Xxxxx 000
000 Xxxxxxxx Xxxxxx
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Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxxx
Copy to: Carlton, Fields, Ward, Xxxxxxxx
Xxxxx & Xxxxxx, P.A.
Suite 1400
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Tenant: Xxxxxxxxx International, Inc.
Suite 1500
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000"
8. RADON. Landlord and Tenant acknowledge and agree that the
following is added as Paragraph 35.6 of the Lease:
"Radon is a naturally occurring radioactive gas, that, when it has
accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon
that exceed federal and state guidelines have been found in buildings
in Florida. Additional information regarding radon or radon testing
may be obtained from your county public health unit."
9. HAZARDOUS SUBSTANCES. Landlord and Tenant acknowledge and agree
that the following is added as Article XXXVI of the Lease:
"(a) During the Term, Landlord and Tenant shall each not knowingly
permit to remain in, incorporate into, use, or otherwise place or dispose of at
the Demised Premises or in the Building any toxic or hazardous materials unless
(i) such materials are in small quantities, properly labeled and contained, (ii)
such materials are handled and disposed of in accordance with the highest
accepted industry standards for safety, storage, use, and disposal, (iii) such
materials are for use in the ordinary course of business (i.e., as with office
or cleaning supplies), and (iv) such materials are handled and disposed of in
accordance with all applicable governmental laws, rules, and regulations. If
Landlord or Tenant ever has knowledge of the presence in the Demised Premises or
the Building of toxic or hazardous materials which affect the Demised Premises,
such party shall notify the other thereof in writing promptly after obtaining
such knowledge. For purposes of this paragraph, hazardous or toxic materials
shall mean hazardous or toxic chemicals or any materials containing hazardous or
toxic chemicals at levels or concentrations which cause such materials to be
classified as hazardous or toxic as then prescribed by the prevalent industry
practice and standards or as set from time to time by EPA or OSHA or as defined
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under 29 CFR 1910 or 29 CFR 1925 or other applicable governmental laws, rules,
or regulations.
(b) If Landlord or Tenant or their respective employees, agents, or
contractors shall ever violate the provisions of paragraph (a), above, or if
Landlord's or Tenant's acts, negligence, breach of this provision, or business
operations directly and materially expand the scope of any contamination from
toxic or hazardous materials, then the party at fault shall clean-up, remove,
and dispose of the material causing the violation, in compliance with all
applicable governmental standards, laws, rules, and regulations and repair any
damage to the Demised Premises or Building within such period of time as may be
reasonable under the circumstances after written notice from the other, provided
that such work shall commence not later than thirty (30) days from such notice
and be diligently and continuously carried to completion by such party or its
designated contractors. Such party shall notify the other of its method, time,
and procedure for any clean-up or removal of toxic or hazardous materials under
this provision; and the other party shall have the right to require reasonable
changes in such method, time, or procedure; and the other party may reasonably
require the same to be done after normal business hours or when the Building is
otherwise closed (i.e., weekends or holidays)."
10. RIDER TO LEASE. The Rider to Lease dated March 24, 1988 is
hereby deleted in its entirety.
11. RULES AND REGULATIONS. The Rules and Regulations referenced in
Paragraph 13.1 and set forth in EXHIBIT "D" to the original Lease are hereby
deleted in their entirety and replaced with the Rules and Regulations which are
attached hereto and made a part hereof as EXHIBIT "D-1". Notwithstanding
anything herein to the contrary, in the event of any conflict between the terms
of this Lease and the Rules and Regulations, the terms of this Lease shall
control.
12. RELEASE OF LIABILITY. Landlord and Tenant hereby represent that
neither of them is in default under any of the terms and provisions of this
Lease as of January 1, 1997. In addition, through January 1, 1997, Landlord and
Tenant hereby release each other from any and all obligations and liabilities
arising out of, with respect to, or in any way pertaining to the Demised
Premises, with the exception of any obligations and liabilities which are not
fully satisfied as of January 1, 1997 (including, without limitation, any
liability, damages, expenses, costs, reasonable attorneys' fees at all levels,
including appeals, and the like incurred by Landlord).
13. CONFLICT. In the event of any conflict between the terms and
provisions of this First Amendment and the terms and provisions of the Lease,
the terms and provisions of this First Amendment shall prevail. In all other
respects, except as herein modified, the terms and provisions of the Lease shall
remain in full force and effect. This First Amendment shall have the same force
and effect as if incorporated into the original Lease, and shall take precedence
thereover.
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IN WITNESS WHEREOF, the parties have duly executed this First Amendment as
of the day and year first above written.
"LANDLORD"
FLORIDA ACQUISITION FUND ESPERANTE,
LTD., a Florida limited partnership
By: FLORIDA ACQUISITION FUND L.C.,
WITNESSES AS TO LANDLORD: a general partner
By: SUMMER HILL
/s/ Xxxx X. Xxxxxxxx ESPERANTE INC., a member
-------------------------
Xxxx X. Xxxxxxxx
-------------------------
(Print or Type Name)
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
---------------------------
/s/ Xxxxxx X. Xxx Name: Xxxxxxx X. Xxxxxxx, Xx.
------------------------- Its: President
Xxxxxx X. Xxx
-------------------------
(Print or Type Name)
"TENANT"
WITNESSES AS TO TENANT: XXXXXXXXX INTERNATIONAL, INC.,
a Delaware corporation,
/s/ Xxxx Xxxxxxx By: /s/ A. Xxxxxxx Xxxxxxxx, Xx.
------------------------- -----------------------------------------
Name: A. Xxxxxxx Xxxxxxxx, Xx.
--------------------------------------
Xxxx Xxxxxxx Its: Chairman and Chief Executive Officer
------------------------- --------------------------------------
(Print or Type Name)
/s/ Xxxxx X. Xxxxx
-------------------------
Xxxxx X. Xxxxx
-------------------------
(Print or Type Name)
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