Exhibit 10.246
FIRST AMENDMENT TO OFFICE LEASE AGREEMENT
This First Amendment to Office Lease Agreement (this "First Amendment") is
made and entered into by and between KBS PHOENIX IV, L.L.C., a Delaware limited
liability company (the "Landlord") and READY MIX, INC., a Nevada corporation
("Tenant"), effective as of August 31, 2003 (the "Effective Date").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant heretofore executed and entered into that
certain Office Lease Agreement dated May 26, 2000 (the "Original Lease"),
pursuant to which Tenant leased certain premises containing 2,260 Rentable
Square Feet (the "Original Premises") in the building commonly known as 26th
Place, located 2601 East Thomas Road, Phoenix, Arizona 85016 (the "Building");
and
WHEREAS, Landlord and Tenant desire to amend the terms of the Lease to
relocate Tenant, extend the Lease Term, and to modify certain terms and
provisions of the Lease, all as more particularly set forth below;
NOW, THEREFORE, for and in consideration of the premises contained herein,
and other good and valuable consideration paid by each of Landlord and Tenant to
the other, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant agree that the Lease is hereby ratified and amended as
follows:
1. Defined Terms. All capitalized terms used herein shall have the same
meaning as defined in the Lease, unless otherwise defined in this First
Amendment.
2. Extension of Lease Term. Landlord and Tenant acknowledge and agree that the
Lease Term is hereby scheduled to expire on August 31, 2003. Landlord and
Tenant hereby acknowledge and agree the Lease Term shall be extended for
the period commencing September 1, 2003 and continuing through and expiring
on the day preceding the thirty-sixth (36th) month anniversary of the
Relocation Date (as defined below) (the "Extension Term"), upon and subject
to all of the existing terms of the Lease except as otherwise hereafter set
forth.
3. Relocation Space. Effective as of the date upon which there is Substantial
Completion of the Relocation Space Tenant Improvements in the Relocation
Space (the "Relocation Date"), and subject to the conditions of Paragraph 5
below, the Premises shall be relocated from the Original Premises to that
certain space containing approximately 3,189 Rentable Square Feet located
in Suite 120 of the Building (the "Relocation Space"), as more particularly
described on Exhibit A attached hereto, and, from and after the Relocation
Date, all references to the Premises shall mean the Relocation Space.
Landlord and Tenant acknowledge and agree that Landlord and Tenant will
execute an amendment that serves as confirmation of Relocation Date when
the Relocation Date (and the expiration date of the Extension Term) is
determined.
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4. Released Space. Effective as of the Relocation Date, with respect to the
Released Space only, Tenant covenants and agrees with Landlord that as a
condition precedent to Tenant's occupancy of the Relocation Space, Tenant
hereby surrenders the approximate 2,260 Rentable Square Feet located in
Suite 235 of the Building (collectively, the "Released Space"), which is
more particularly described on Exhibit B attached hereto, subject to the
following:
(a) With respect to the Released Space only, as of the Relocation Date,
Tenant agrees to surrender the Released Space in substantially the
same condition as existed upon commencement of the Lease, reasonable
wear and tear excepted, and with all personal property of Tenant
removed therefrom. Tenant hereby releases, as of the Relocation
Date, all of its right, title and interest in, and in respect of,
the Released Space. Tenant covenants, agrees and represents that
Tenant shall have no further right to use, occupy or have possession
of the Released Space or any portion thereof after the Relocation
Date.
(b) With respect to the Released Space only, Tenant covenants and agrees
that it has full right, power and authority to terminate and
surrender the Released Space in the manner aforesaid.
(c) Subject to Paragraph 5(a) above and Paragraph 5(e) below with
respect to the Released Space only, Landlord agrees (i) to forever
release and discharge Tenant from all obligations, covenants and
agreements of Tenant arising under or in connection with the
Released Space after the Relocation Date and (ii) not to sue Tenant
for obligations covenants and agreements of Tenant arising under or
in connection with the Released Space after the Relocation Date.
(d) With respect to the Released Space only, Tenant agrees (i) to
forever release and discharge Landlord from all obligations,
covenants and agreements of Landlord arising under or in connection
with the Released Space and (ii) not to sue Landlord for
obligations, covenants and agreements of Landlord arising under or
in connection with the Released Space.
(e) Notwithstanding anything to the contrary herein contained, with
respect to the Released Space only, the parties acknowledge and
agree that each shall continue to be fully liable to the other to
the extent set forth in the Lease for any claim for personal injury
or property damage arising prior to the Relocation Date. Tenant
shall also be responsible for any Operating Costs reimbursable that
may be due, when the actual Operating Costs for the calendar year
2004 for the Building are determined in 2005.
(f) With respect to the Released Space only, Tenant covenants and agrees
with Landlord that Tenant shall make or cause to be made any further
assurances of the termination and the surrender of the Released
Space as Landlord may reasonably require from time to time.
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5. Confirmation of Premises. Effective on and as of the Relocation Date, the
"Premises" shall consist of the Relocation Space, which is Suite 120,
containing 3,189 Rentable Square Feet.
6. Minimum Monthly Rent. From and after September 1, 2003, the Minimum Monthly
Rent for the Relocation Space shall be as follows:
(a) For the period commencing September 1, 2003 and continuing through the
day immediately preceding the Relocation Date, the Monthly Minimum
Rent shall be equal to $3,393.77 per month, plus applicable rental
sales tax;
(b) For the period commencing on the Relocation Date and continuing
through the day immediately preceding the twelfth (12th) month
anniversary of the Relocation Date, the Minimum Monthly Rent shall be
$3,986.25 per month (being equal to $15.00 per Rentable Square Foot
per annum), plus applicable rental sales tax;
(c) For the period commencing on the twelfth (12th) month anniversary of
the Relocation Date and continuing through the day immediately
preceding the twenty-fourth (24th) month anniversary of the Relocation
Date, the Minimum Monthly Rent shall be $4,119.13 per month (being
equal to $15.50 per Rentable Square Foot per annum), plus applicable
rental sales tax; and
(d) For the period commencing on the twenty-fourth (24th) month
anniversary of the Relocation Date and continuing through the last day
of the Extension Term, the Minimum Monthly Rent shall be $4,252.00 per
month (being equal to $16.00 per Rentable Square Foot per annum), plus
applicable rental sales tax.
7. Relocation Space Tenant Improvements. The Relocation Space is hereby leased
to Tenant in its "AS-IS", "WHERE-IS" and "WITH ALL FAULTS" condition and
Landlord shall have no obligation to refurbish or otherwise improve the
Relocation Space for the Extension Term; provided that, subject to the
terms of the Work Letter attached hereto as Exhibit C. Landlord shall
perform the certain improvements to the Relocation Space in accordance
with, and subject to the terms of, said Exhibit C attached hereto and made
a part hereof for all purposes.
8. Tenant's Pro Rata Share. As of the Relocation Date, Landlord and Tenant
acknowledge and agree that Tenant's Pro Rata Share, as specified in Article
1.1(h) of the Lease, shall be amended to be 10.107% (3,189 rsf/31,553 rsf).
9. Security Deposit. Concurrently with the execution of the First Amendment,
Landlord and Tenant hereby agree that Tenant shall pay an additional
Security Deposit of $858.23 (the "Extension Term Security Deposit"). Upon
payment of the Extension Term Security Deposit, the total Security Deposit
(including the Extension
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Term Security Deposit and the Security Deposit paid upon execution of the
Lease) held by Landlord, from and after the Relocation Date, is equal to
$4,252.00.
10. Parking. Effective on and as of the Relocation Date, Landlord and Tenant
acknowledge and agree that Article 6.1 of the Lease shall be amended so
that Tenant shall have a license to use (12) parking spaces of which there
will be (i) three (3) covered, reserved in Automobile Parking Areas
designated by Landlord from time to time at the additional cost to Tenant
of $25.00 per parking space per month, plus applicable rental sales tax
during the Extension Term (from and after the Relocation Date) and (ii)
nine (9) uncovered, unreserved parking spaces at no additional cost to
Tenant during the Extension Term (from and after the Relocation Date).
11. Brokers. Tenant warrants that it has had no dealings with any broker or
agent other than CB Richard Ellis, Inc. (the "Broker") in connection with
the negotiation or execution of this First Amendment, and Tenant agrees to
indemnify Landlord and hold Landlord harmless from and against any and all
costs, expenses, or liability for commissions or other compensations or
charges claimed by any broker or agent, other than the Broker, with respect
to this First Amendment.
12. Miscellaneous. With the exception of those terms and conditions
specifically modified and amended herein, the herein referenced Lease shall
remain in full force and effect in accordance with all its terms and
conditions. 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 supersede and control.
13. Counterparts/Facsimiles. This First Amendment may be executed in any number
of counterparts, each of which shall be deemed an original, and all of such
counterparts shall constitute one agreement. To facilitate execution of
this First Amendment, the parties may execute and exchange facsimile
counterparts of the signature pages and facsimile counterparts shall serve
as originals.
[SIGNATURE PAGE TO FOLLOW]
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SIGNATURE PAGE TO FIRST AMENDMENT TO OFFICE LEASE AGREEMENT
BY AND BETWEEN
KBS PHOENIX IV, L.L.C., AS LANDLORD, AND
READY MIX, INC., AS TENANT
IN WITNESS WHEREOF, Landlord and Tenant, acting herein by duly authorized
individuals, have caused these presents to be executed on the respective dates
set forth below, to be effective for all purposes, however, as of the Effective
Date set forth herein.
LANDLORD:
KBS PHOENIX IV, L.L.C.,
A DELAWARE LIMITED LIABILITY COMPANY
BY: KOLL BREN SCHREIBER REALTY ADVISORS,
INC., A DELAWARE CORPORATION, AS AGENT
BY: /s/ David L. Kray
-------------------------------
DAVID L. KRAY,
SENIOR VICE PRESIDENT
DATE: 9/17 , 2003
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TENANT:
READY MIX, INC.,
A NEVADA CORPORATION
BY: /s/ Robert A. DeRuiter
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NAME: Robert A. DeRuiter
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TITLE: General Manager
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DATE: 9-9 , 2003
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