EXHIBIT 10.9
FIRST AMENDMENT TO BLUE LAKE CORPORATE CENTER
STANDARD LEASE BETWEEN BLUE LAKE, LTD. AND CYBEAR, INC.
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is made by and between
BLUE LAKE, LTD. (the "Landlord") and CYBEAR, INC.(FL), successor by merger to
Cybear, Inc. (the "Tenant") as of this 4th day of February, 1999.
WITNESSETH:
WHEREAS, Landlord and Tenant are bound under that certain Blue Lake
Corporate Center Standard Lease dated September 14, 1998 (the "Lease")
regarding certain leased premises (the "Existing Premises") described in the
Lease, being located in Blue Lake Corporate Center, Boca Raton, Florida; and
WHEREAS, Tenant desires to increase the area of the Existing Premises
to that more particularly described on Exhibit "A-revised" hereto (the "Enlarged
Premises"), and, which thereby will result in a decrease in the size of the
Expansion Premises described in the Lease ("Existing Expansion Premises) as more
particularly described in Exhibit "A-1-revised" hereto ("Reduced Expansion
Premises") and Landlord has agreed to lease the Enlarged Premises to Tenant and
to decrease the area of the Existing Expansion Premises to the Reduced Expansion
Premises, subject to and on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the sum of TEN and NO/100 DOLLARS
($10.00) paid by Tenant to Landlord, the mutual promises contained herein, and
other good and valuable considerations, the receipt and adequacy of which are
hereby acknowledged, Landlord and Tenant do hereby agree as follows:
1. RECITALS. The foregoing recitals are true and correct and are hereby
incorporated by this reference as if set forth in their entirety.
2. DEFINED TERMS. Terms in this Amendment shall have the same meaning
as ascribed to said terms in the Lease, unless otherwise provided in this
Amendment. As hereby amended, the Lease and this Amendment shall hereinafter be
referred to as the "Lease".
3. ENLARGED PREMISES. Attached hereto as Exhibit "A-revised" is a floor
plan of the Enlarged Premises. Exhibit "A" of the Lease is hereby replaced with
Exhibit "A-revised" as attached hereto and made a part hereof which the parties
hereto stipulate contains 21,648 square feet of Net Rentable Area based on
18,824 usable square feet and a fifteen (15%) percent add-on factor. The term,
"Premises" shall be deemed to be, and shall be defined as, the Enlarged
Premises. Attached hereto as Exhibit "A-1-revised" is a floor plan of the
Reduced Expansion Premises. Exhibit "A-1" of the Lease is hereby replaced with
Exhibit ,'A-1- revised" attached hereto and made a part hereof, which the
parties stipulate contains 16,420 square feet of Net Rentable Area, based on
14,278 usable square feet and a fifteen (15%) percent add-on factor. Landlord
and Tenant
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agree that the foregoing calculation shall be dispositive of the actual
Net Rentable Area and that no further measurement shall be made of the Premises
pursuant to Section 1 of the BLI Rider to the Lease. The Rentable Area of the
Premises includes restrooms, electrical and mechanical rooms over which the
Tenant is herein granted exclusive control and dominion which are themselves
deemed part of the Premises, except that Landlord shall maintain such restrooms,
electrical and mechanical rooms which are shared among tenants.
4. TENANT'S SHARE. Tenant's Share (as set forth in Paragraph 3 of the
BLI Rider and as defined in the Lease) for the Enlarged Premises shall be
increased to 1.22%.
5. BASE RENT. Section 3 of the BLI Rider to the Lease is hereby
replaced with the following:
Base Rent: Tenant agrees to pay to Landlord as Rent for the Premises,
in advance without demand, deduction or set off (except as otherwise
may be specifically provided in the Lease), from and after the Rent
Commencement Date and throughout the term, the Annual Base Rent in the
amounts as indicated in the following Schedule of Base Rent in equal
monthly installments, plus applicable sales tax.
SCHEDULE OF BASE RENT
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PERIOD PER SQUARE FOOT ANNUAL BASE RENT MONTHLY BASE RENT
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Months 1-12: $12.50 $270,600.00 $22,550.00
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Months 13-24: $12.88 $278,826.24 $23,235.52
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Months 25-36: $13.27 $287,268.96 $23,939.08
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Months 37-48: $13.67 $295,928.16 $24,660.68
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Months 49-60: $14.08 $304,803.84 $25,400.32
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Each monthly installment in accordance with the above Schedule shall be
due and payable on or before the first day of each calendar month
succeeding the Rent Commencement Date, except that the rental payment
for any fractional calendar month commencing on the Rent Commencement
Date of the Lease shall be prorated.
6. DEMISING OF PREMISES, The Landlord is not and shall not be
responsible for the design or construction of any Tenant improvements (other
than for any Landlord's Contribution as defined and as may be provided in the
Lease) or for the demising of the Premises, other than for the construction of a
temporary wall, as depicted on Exhibit "B" attached hereto and designated as
"Temporary
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Demising Wall", which shall be installed at Landlord's expense. However, the
Tenant further acknowledges that if Tenant does not exercise its Right of First
Refusal pursuant to Paragraph 1.B of the Lease, the Reduced Expansion Premises
or portions thereof may be leased to third party(ies) or used for common areas,
and in such event, a corridor will be required to be constructed between the
Reduced Expansion Premises and the stairs as depicted on Exhibit "B" attached
hereto ("Corridor") for the purpose of fire egress in accordance with applicable
codes, standards, ordinances and laws. The Tenant acknowledges and agrees that
it shall be responsible for removing from the area of the Corridor all of
Tenant's improvements, personal property, equipment, furnishings and fixtures.
Tenant shall pay for all actual reasonable costs and fees associated with (i)
the demolition, removal and relocation of the improvements located in the
Corridor including, but not limited to, ceilings, HVAC, life-safety, lighting,
alarms, electrical, plumbing and other mechanical systems; and (ii) the cost of
designing, permitting and constructing the Corridor, including but not limited
to the fire-rated wall, and the installation of ceilings, HVAC, lighting,
alarms, life-safety, electrical, plumbing and other mechanical systems serving
the Corridor ("Corridor Expenses"). The Landlord shall prepare an estimate of
the Corridor Expenses prior to commencing work on the Corridor, and within ten
(10) days from receipt of Landlord's estimate, Tenant shall deposit with
Landlord the amount shown therein. After completion of all work associated with
the Corridor, the Landlord shall notify the Tenant of actual Corridor Expenses.
If the actual Corridor Expenses are less than the amount deposited by Tenant
with the Landlord, the Landlord shall refund the excess amount so deposited
within fifteen (15) days and if the actual Corridor Expenses are greater than
the amount so deposited, the Tenant shall pay such costs and fees within fifteen
(15) days from receipt of Landlord's notice.
7. TENANT IMPROVEMENTS. Tenant shall complete or cause the completion
of improvements to the Enlarged Premises in accordance with the Work Letter
Agreement to the Lease. The Landlord's Contribution shall apply to the Enlarged
Premises on the same basis as provided in the Work Letter Agreement to the
Premises.
8. SUPPLEMENTAL AIR CONDITIONING. Landlord agrees that Tenant, at its
sole cost and expense, may install a backup emergency supplemental air
conditioning system for the Enlarged Premises (the "Backup AC")on the roof of
the Building. Should Tenant elect to install a Backup AC on the roof of the
Building, Tenant agrees to install the Backup AC in accordance with all
applicable codes and laws and sound engineering and construction practices.
Tenant further agrees to use any specified architect, engineer, roofing
contractor or other general contractor reasonably required by Landlord to design
and install the Backup AC so as avoid any compromise to the roof structure or
membrane, or to other elements of the Building. The architectural and
engineering plans and specifications for the Backup AC and any required
Alterations to the Building in connection therewith shall be subject to the
Landlords approval as an Alteration under this Lease. Tenant covenants and
agrees that the Backup AC shall only be use for emergency backup use in the
event of the cessation of air conditioning provided by the Landlord or the
Utility Manager pursuant to the terms of the Lease, and the Tenant shall not use
the Backup AC in lieu of the air conditioning services provided by the Landlord
or the Utility Manager pursuant to Section 8.A.(3) of the Lease. The Tenant
shall be responsible to maintain, repair and replace the roof in the area of the
Backup AC and any supporting or related roofing systems, such maintenance,
repair and replacement, subject to the Landlord's prior
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written approval. If the Tenant fails to promptly, and as and when appropriate
or necessary, maintain, repair or replace the roof and supporting and related
systems, the Landlord may perform such maintenance, repair or replacement, and
such shall be charged to the Tenant as Additional Rent.
9. TENANT STIPULATIONS. Tenant acknowledges that, as a result of a
merger, it is the tenant under the Lease, has assumed all of Cybear, Inc.'s
obligations, liabilities and responsibilities under the Lease, and hereby
stipulates, agrees and affirms that there are no other assignees, sublessees or
transferees of the Lease, or any part thereof, or any person or firm occupying
or having the right in the future to occupy the Existing Premises, or any part
thereof, except as has been approved in writing by Landlord. As of the date
hereof, Landlord and Tenant are not aware of the occurrence of any event of
default under the Lease by either Landlord or Tenant.
10. RATIFICATION. Except as herein specifically amended, the terms of
the Lease are incorporated herein by reference as fully set forth herein and
shall apply to and bind the Enlarged Premises. In the events of any conflict or
ambiguity between this Amendment and the Lease, this Amendment shall pre-empt
and control. The parties hereby ratify and confirm their rights and obligations
under the Lease as modified by this Amendment Landlord and Tenant each represent
and warrant to the other that (i)the execution and delivery of the Amendment has
been fully authorized by all necessary corporate action, and (ii) this Amendment
is valid, binding and legally enforceable in accordance with its terms.
11. STROKED. Each party represents and warrants that it has not dealt
with any agent or broker in connection with this transaction except for Blue
Lake Realty, Inc. and the agents or brokers specifically set forth in the BLI
Rider to the Lease whose commissions shall be paid by Landlord pursuant to
separate agreement. If either party's representation and warranty proves to be
untrue, such party will indemnify the other party against all resulting
liabilities, costs, expenses, claims, demands and causes of action, including
reasonable attorneys' fees and costs through all appellate actions and
proceedings, if any. The foregoing will survive the end of the Lease Term.
IN WITNESS WHEREOF, Landlord and Tenant have signed this Amendment as
of this 4th day of February, 1999.
WITNESSES: "TENANT"
CYBEAR, INC. (FL), a Florida corporation
__________________________
__________________________
By: /s/ XXXX XXXXXXX
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Name: Xxxx XxxXxxx
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Title: EVP-Operations
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WITNESSES: "LANDLORD"
_________________________ BLUE LAKE, LTD., a Florida limited partnership
_________________________ By: Blue Lake, Inc., a Florida corporation, its
general partner
By: XXXXXXX XXXXXXXX
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Executive Vice President
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Revised Exhibit A Enlarged Premises
Revised Exhibit "A-1" Reduced Expansion Premises
Exhibit B Demising Corridor/Temporary Wall
ASSIGNMENT OR SUBLETTING
The parties acknowledge that they have entered into this Sublease only on
account of the strategic relationship of the Sublessor to the Subtenant.
Therefore the Sublessor acknowledges that Subtenant shall be allowed to assign
this Sublease or sublet any of the Space without the written consent of the
Sublessor. Subtenant acknowledges however that the approval of the Lessor, which
is not to be unreasonably withheld, a condition to any such assignment or
sublease.
