Exhibit 10.10
THIRD AMENDMENT
TO
HAYDEN FERRY LAKESIDE PHASE I OFFICE LEASE
Vd
THIS THIRD AMENDMENT ("Third Amendment") is made and entered into as of the
3rd day of June, 2004, by and between HAYDEN FERRY LAKESIDE, LLC, an Arizona
limited liability company ("Lessor"), and MEDAIRE, INC., a Nevada corporation
("Lessee").
RECITALS
A. Lessor and Lessee entered into that certain Office Lease dated March 7,
2002, as supplemented and modified by the Addendum thereto ("Addendum"), and by
that Second Amendment dated April 20, 2004 (collectively, the "Lease"), with
respect to certain office space containing 14,407 square feet of usable area and
16,424 square feet of rentable area ("Premises").
B. Lessor received a signed letter of intent with respect to certain space
on the sixth floor of the Building in which the Premises are located. In
accordance with Section 1.5 of the Lease, Lessee has the first right to lease
certain space on the sixth floor and Lessor provided Lessee with written notice
offering to lease certain space on the sixth floor as described in said letter
of intent.
C. Lessee advised Lessor that it desires to expand the Premises to include
all space on the sixth floor of Hayden Ferry Lakeside, and Lessor desires to
lease the same subject to the terms and conditions hereafter set forth.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants set forth herein,
Lessor and Lessee hereby agree as follows:
1. Defined Terms. Unless otherwise expressly defined in this Third
Amendment, all capitalized terms used herein shall have the meanings assigned to
such terms as set forth in the Lease.
2. Expansion Space. On the terms and conditions contained in the Lease, as
modified by this Third Amendment, Lessor hereby leases to Lessee, and Lessee
hereby leases from Lessor, the remaining unoccupied portion of all space on the
sixth floor of the Building containing 4,387 square feet of usable area and
5,001 square feet of rentable area as shown on Exhibit A attached to this Third
Amendment. Any reference in this Third Amendment to "Initial Space" shall
constitute the original rentable area of 16,424 square feet (14,407 usable
square feet) for the Premises. Except as specifically provided otherwise in this
Third Amendment, any reference in the Lease to the "Premises" shall constitute
the Initial Space and the Expansion Space. Possession of the Expansion Space
will be delivered to Lessee with Lessor's Work completed on or before September
1, 2004, subject to Section 2.3 of the Lease. However, Lessee's obligation to
pay Base Rental with respect to the Expansion Space shall commence on the
earlier of (i) September 1, 2004, or (ii) the date on
which Lessee opens for business in all or any portion of the Expansion Space
("Rent Commencement Date for Expansion Space"), subject to and in accordance
with the terms and provisions of Exhibit C to the Lease. If the Rent
Commencement Date for Expansion Space is earlier than September 1, 2004, then
Lessee shall be obligated to pay the additional Base Rental due for the
Expansion Space from the Rent Commencement Date for Expansion Space to September
1, 2004, in the monthly amount set forth in Section 3.1 of this Third Amendment,
subject to Section 3.2 below. As of September 1, 2004, the Base Rental provision
set forth in Section 3.1 of this Third Amendment shall apply for the remainder
of the Lease Term. The parties agree that with respect to Section 2.3 of the
Lease, reference therein to "Commencement Date" shall refer to September 1,
2004, any reference therein to the "Premises" shall refer only to the Expansion
Space, any reference to "Base Rental" in subsection (i) of Section 2.3 shall
refer only to the Base Rental due for the Expansion Space, and subsection (ii)
and the second and fourth sentences of said Section 2.3 of the Lease shall not
apply with respect to the Expansion Space or to any delay in the delivery
thereof to Lessee.
3. Modification of Lease Provisions. Lessor and Lessee hereby agree to
modify and supplement the Lease as follows:
3.1 The following provisions in the Basic Lease Information are
amended as follows effective September 1, 2004:
PREMISES: Suite Number 610 Floor: 6'l
Total Rentable Area: 21,425 sq f *
Total Usable Area: 18,794 sq f **
*5001 square feet for Expansion Space *
16,424 square feet for Initial Space
**4,387 square feet for Expansion Space
**14,407 square feet for Initial Space
RENTABLE AREA OF THE BUILDING: 200,401 (See Section 1.2)
LESSEE'S PRORATA SHARE OF THE BUILDING: 10.69%
TERM: Commencement Date: September 1, 2002
Termination Date: December 31, 2009
Option: Two (2) option periods of five (5) years each.
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BASE RENTAL:
Initial Months $427,024.00 $35,585.33 $26.00
1-62
Expansion Months $130,026.00 $10,835.50 $26.00
*23-62
Total $557,050,00 $46,420.83
Initial Months $459,872.00 $38,322.67 $28.00
63-88
Expansion Months $140,028.00 $11,669.00 $28.00
63 - 88
Total $599,900.00, $49,991.67
* (i.e., commencing September 1, 2004)
3.2 ABATEMENT OF BASE RENT FOR EXPANSION SPACE: Notwithstanding the
modifications in Section 3.1 of this Third Amendment to the contrary, so long as
Lessee is not in default under this Lease beyond applicable cure periods as set
forth in the Lease (otherwise, Base Rental shall be due in full as set forth in
said Section 3.1 at the monthly amount otherwise due for the applicable month
with respect to the Expansion Space), Lessee shall be entitled to an abatement
of Base Rental, for the Expansion Space only, for months one (1) through four
(4) after the Rent Commencement Date for Expansion Space, but all other sums due
under the Lease shall be due and payable during said period. Lessee shall pay to
Lessor, upon execution of this Third Amendment, an amount equal to the monthly
Base Rental for Expansion Space in the sum of $10,835.50, which shall be applied
by Lessor to the Base Rental due for the fifth month after the Rent Commencement
Date for Expansion Space.
3.3 TENANT IMPROVEMENT ALLOWANCE: The following Tenant Improvement
Allowance shall apply only to the Expansion Space. The Tenant Improvement
Allowance for the Expansion Space shall be $131,610.00 (total allowance for the
Expansion Space calculated as follows: $30.00 times 4,387, which is the number
of usable square feet selected by Lessor to calculate the Tenant Improvement
Allowance for the Expansion Space; rentable square feet have been used to
calculate Base Rental for the Expansion Space).
3.4 PARKING SPACES AND PARKING RENTAL: The PARKING SPACES AND PARKING
RENTAL provision of the Basic Lease Information in the Lease is hereby
supplemented to add additional spaces and parking rental as follows:
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Expansion Space: Two (2) Executive Parking Spaces @ $75/mo ... $150.00/mo
Five (5) Reserved Covered Parking Spaces @ $55/mo ... $275.00/mo
Twelve (12) Unreserved Parking Spaces @ $35/mo ... $420.00/mo
----------
The Total Monthly Rate for the Expansion Space Parking ... $845.00/mo
Except as herein provided, said provision shall remain unchanged. On September
1, 2004, the Total Monthly Rate for Parking Rental for the Initial Space and the
Expansion Space shall be $1,645.00 per month. Lessee shall not be entitled to an
abatement of parking rental with respect to the spaces referred to in this
Section 3.4.
3.5 AMENDMENT OF SECTION 6.8 OF LEASE. Section 6.8 of the Lease is
hereby deleted and replaced with the following:
"6.8 Project Signs; Interior Signage. Lessee shall have no right to use the
signs for the Project or to use any exterior surfaces of the Building or other
portions of the Project to identify Lessee's business, except that, subject to
Lessee's compliance with Lessor's sign criteria and Lessor's approval of the
design, style, font, and colors used by Lessee, Lessee, at its sole expense,
shall be permitted to erect a sign panel on the multi-tenant sign designated
"Sign H" on Exhibit A-2 attached to this Lease in the slot designated by Lessor
from time to time in its discretion (and Lessor shall have the right to require
Lessee to move its sign panel, at its expense, to another slot, higher or lower,
within ten (10) days after written notice is received by Lessee); provided,
however, that Lessee shall be permitted to place only "MedAire" or "MedAire,
Incorporated" (but only one name shall be allowed on the sign panel) without
logos on the sign panel, and to maintain said sign panel on the multi-tenant
sign only if Lessee is open and operating in the Premises and is not in default
under this Lease beyond applicable cure periods; otherwise, Tenant shall
promptly remove its sign panel or Lessor may do so at the expense of Lessee.
Subject to Lessee's compliance with Lessor's sign criteria, Lessee shall be
permitted to list its name and suite number within the Building (i) on the main
interior directory in the lobby of the Building, (ii) on a directory in the
elevator areas on the sixth floor and level B-1 of the Building, and (iii) on
suite entry signage at the entry to the Premises."
For purposes of the amendment to Section 6.8 as herein provided, Exhibit A-2 is
attached to this Third Amendment.
3.6 LESSOR'S WORK. Section 7.2 (Construction) of the Lease shall apply
to the Expansion Space. In no event shall Lessor's responsibility with respect
to the Expansion Space exceed the Tenant Improvement Allowance for the Expansion
Space as set forth in this Third Amendment. Lessor and Lessee agree that the
Construction Obligations attached as Exhibit C and the Building Standards
attached as Schedule 1 to the Lease shall apply with respect to the performance
of Lessor's Work and Lessee's Work within the Expansion Space; provided,
however, that (i) any reference therein to "Premises" shall refer only to the
Expansion Space, (ii) any reference therein to "Tenant Improvement Allowance"
shall refer to the Tenant Improvement Allowance set forth in Section 3.4 of this
Third Amendment, (iii) in no event shall Lessor be required to perform any
further work in the Initial Space, and (iv) in no event will Lessor be required
to perform any other work or install any other improvements within the Expansion
Space except for Lessor's Work
4
as set forth on Exhibit C up to the amount of the Tenant Improvement Allowance
set forth in Section 3.3 of this Third Amendment.
3.7 DELETION OF SECTION 1.5. Section 1.5 of the Lease (First Right to
Lease Certain Space on 6th Floor) is hereby deleted.
3.8 INITIAL PARKING SPACES. Paragraph C of the Addendum shall apply
only to the Parking Spaces initially allotted to Lessee with respect to the
Initial Space, except for the last sentence added thereto.
3.9 MODIFICATIONS TO EXHIBIT C. Exhibit C attached to the Lease is
hereby modified as follows:
3.9.1 The provision added to Section 1.1 of Exhibit Cat the
bottom of the page and noted with an asterisk shall not apply with respect to
the Expansion Space.
3.9.2 Notwithstanding Section 2.1 of Exhibit C, with respect to
the Expansion Space, Lessee shall be allowed to enter thereon to perform
Lessee's Work ten (10) days prior to completion of Lessor's Work, as may be
delayed as provided in Sections 2.3 and 26 of the Lease (in which event Lessee
will be allowed access to the Expansion Space ten (10) days prior to the date
Lessor reasonably estimates will be the date of substantial completion of
Lessor's Work); provided, however, that Lessee shall not unreasonably interfere
with the performance of Lessor's Work in the Expansion Space. In addition, the
last four sentences of Section 2.1 of Exhibit C shall not apply to the Expansion
Space.
4. NO BROKER. Lessee represents and warrants to Lessor that no broker is
involved with respect to this Third Amendment and the Expansion Space on behalf
of Lessee, and that no commission, finder's fee, or other compensation shall be
due to any broker, agent, or finder with respect thereto on behalf of Lessee.
Lessee further agrees to indemnify, defend, and hold harmless Lessor from and
against all claims, liabilities, costs, fees, and expenses incurred by Lessor
and arising from a breach of the foregoing representation and warranty.
5. NO FIRST AMENDMENT. Lessor and Lessee desire to clarify that the Second
Amendment to the Lease dated April 20, 2004, incorrectly referred to a "First
Amendment dated March 11, 2003", and that a First Amendment was never executed
by the parties. Accordingly, the Second Amendment and this Third Amendment will
continue to be referred to in that manner, but Lessor and Lessee agree that the
First Amendment referred to herein was never executed by the parties.
6. LEASE OTHERWISE UNCHANGED. Except as otherwise set forth in this Third
Amendment, the Lease shall remain unchanged and in full force and effect.
7. BINDING AMENDMENT. This Third Amendment shall be binding upon and inure
to the benefit of the successors and assigns of Lessee and Lessor.
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IN WITNESS WHEREOF, Lessor and Lessee have executed the foregoing Third
Amendment effective as of the date set forth above.
LESSOR:
HAYDEN FERRY LAKESIDE, LLC, an Arizona
limited liability company
BY: SunCor Development Company, an
Arizona corporation, authorized
Member
By: /s/ Margaret Kirch
------------------------------------
Name: MARGARET E. KIRCH
Title: Vice President
LESSEE:
MEDAIRE, INC., a Nevada corporation
By: /s/ Kjell Andreassen
------------------------------------
Name: Kjell Andreassen
----------------------------------
Title: Vice-President
---------------------------------
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Exhibit "A"
[graphic]
EXHIBIT "A-2"
Sign H: Freestanding Office Tenant Directory
Location of Sign H on South Side of Building
Notes:
1. Curved, painted, two-sided aluminum cabinet with interior illumination.
2. 3/8" brushed-aluminum FCO ribs separate individual tenant panels on each
side of the sign.
3. Individual tenant panels (each panel measuring 6" x 3'-6") attach over the
central cabinet on each side of the sign. There are two panels for each
tenant: one panel is attached to the front side of the sign, the other
pane! is attached to the back (opposite) side of the sign. Location of each
tenant's panels to be determined by Lessor.
4. Natural aluminum logo on each side of the sign.
5. FCO natural brushed-aluminum letters. Address number flush-mounted to plex
within routed openings. Street name is FCO flush-mounted to cabinet.
6. Text on tenant sign panels is routed and backed with day-night plex,
illuminated from the interior of the cabinet.
7. Reveal; provide foundation as needed.
8. 3/8" brushed-aluminum fabricated inner sleeve. This piece protrudes from
the cabinet structure on all edges 1/2", and at open end, as shown.
Elevation of Sign H with Descriptive Notes