EXHIBIT 10.44
SECOND AMENDMENT TO LEASE AGREEMENT
LEASE EXPANSION
This Second Amendment to Lease Agreement (the "Amendment") is made and entered
into as of December 2, 1997, by and between LINCOLN MENLO PHASE I
ASSOCIATES LIMITED, a California limited partnership "Landlord"), and JET
FAX, INC., a Delaware corporation ("Tenant"), with reference to the following
facts.
RECITALS
A . Landlord and Tenant have entered into that certain Lease Agreement dated as
of April 4, 1997 and that certain First Amendment dated as of September 15,
1997, (hereinafter, collectively the "Lease") for the leasing of certain
premises consisting of approximately 4,790 rentable square feet located at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Original Premises") as such Original
Premises are more fully described in the Lease,
B. Landlord and Tenant now wish to amend the Lease to provide for, among other
things, the addition of certain space to the Original Premises, all upon and
subject to each of the terms, conditions, and provisions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Landlord and Tenant agree as follows:
1. Recitals: Landlord and Tenant agree that the above recitals are true
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and correct and are hereby incorporated herein as though set forth in
full.
2. Premises:
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2.1 Commencing on January 17 1998 (the "AP Commencement Date")
there shall be added to the Original Premises those certain premises
consisting of approximately 12,214 rentable square feet located at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ (the "Additional Premises"), which Additional
Premises are depicted on the site plan (building plan, etc.) attached
hereto and made a part hereof as Exhibit A. Tenant hereby acknowledges
that the Additional Premises are presently being occupied by Four 11
Corporation (the "Existing Tenant"). Landlord's delivery to Tenant of
possession of the Additional Premises by January 17, 1998 is contingent
upon the Existing Tenant vacating the Additional Premises and
surrendering possession thereof to Landlord by January 9, 1998. If
Landlord cannot deliver to Tenant possession of the Additional Premises
broom clean but without any tenant improvements of any kind or nature
on January 17, 1998, Landlord shall neither be subject to any liability
nor shall the validity of the Lease be affected; provided, the Lease
Term applicable to the Additional Premises shall commence on the date
possession is tendered and in no event shall the Expiration Date be
extended. Accordingly, the date Landlord is to deliver the Additional
Premises, namely
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January 17, 1998, shall only be extended to a date later than January
17, 1998 if Landlord fails to tender to Tenant possession of the
Additional Premises broom clean but without any tenant improvements of
any kind or nature being made thereto solely due to the Existing Tenant
failing to vacate and surrender possession of the Additional Premises
to Landlord prior to January 9, 1997. Upon Landlord's delivery to
Tenant of possession of the Additional Premises broom clean but without
any tenant improvements being made there to of any kind or nature,
Tenant shall promptly deliver written notice to Landlord confirming
same (however, any failure by Tenant to deliver to Landlord such
written notice shall not affect the effectiveness of the Lease). By
taking possession of the Additional Premises broom clean without any
tenant improvements of any kind or nature being made thereto, Tenant
shall be deemed to have accepted the Additional Premises in good
condition and state of repair.
2.2 For purposes of the Lease, from and after the AP
Commencement Date, the "Premises" as defined in Section I of the Lease
shall mean and refer to the aggregate of the Original Premises and the
Additional Premises consisting of a combined total of approximately
17,004 rentable square feet located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇. Accordingly, from and after the AP Commencement
Date, all references in this Amendment and in the Lease to the term
"Premises" shall mean and refer to the Original Premises and the
Additional Premises. Landlord and Tenant hereby agree that for
purposes of the Lease, from and after the AP Commencement Date, the
rentable square footage area of the Premises shall be conclusively
deemed to be 17,004 rentable square feet. In addition to the
foregoing, it is the parties express intention that the balance of the
Term of the Lease for the Original Premises and the Additional Premises
be coterminous with the Expiration Date of the initial Term as
specified in the Lease and that any option or renewal term described in
the Lease shall be applicable to both the Premises and the Additional
Premises.
2.3 Notwithstanding anything to the contrary contained herein or
in the Lease, Landlord shall neither be subject to any liability, nor
shall the validity of the Lease be affected if Landlord is not able to
deliver to Tenant possession of the Additional Premises by the AP
Commencement Date. Provided, however, Tenant's obligation to pay Rent
on the Additional Premises shall commence on the date possession is
tendered.
3. Base Rent: The Basic Lease Information and Section 3 of the Lease are
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hereby modified to provide that during the Term of the Lease the
monthly Base Rent payable by Tenant to Landlord, in accordance with the
provisions of Section 3 of the Lease shall be as follows:
Original Premises Additional Premises Aggregate Amount of
Period Monthly Base Rent Monthly Base Rent Monthly Base Rent
01/17/98-04/30/98 $6,186.94 $15,756.06 $21,943.00
05/01/98-04/30/99 $6,378.54 $16,244.62 $22,623.16
05/01/99-04/30/2000 $6,570.14 $16,733.18 $23,303.32
05/01/2000-01/31/03 $6,570.14 $17,402.50 $23,972.64
4. Condition of the Additional Premises: Subject to the provisions of
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Section 2 above, on the AP
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Commencement Date Landlord shall deliver to Tenant possession of the
Additional Premises in its then existing condition and state of repair,
"AS IS", without any obligation of Landlord to remodel, improve or
alter the Additional Premises, to perform any other construction or
work of improvement upon the Additional Premises, or to provide Tenant
with any construction or refurbishing allowance. Tenant acknowledges
that no representations or warranties of any kind, express or implied,
respecting the condition of the Additional Premises, Building, or Park
or have been made by Landlord or any agent of Landlord to Tenant,
except as expressly set forth herein. Tenant further acknowledges that
neither Landlord nor any of Landlord's agents, representatives or
employees have made any representations as to the suitability or
fitness of the Additional Premises for the conduct of Tenant's
business, including without limitation, any storage incidental thereto,
or for any other purpose. Any exception to the foregoing provisions
must be made by express written agreement signed by both parties.
5. Security Deposit: Concurrent with its execution of this Amendment,
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Tenant shall deliver to Landlord the sum of $17,403.00 (the "AP
Security Deposit"). The AP Security Deposit shall be added to the
Security Deposit presently being held by Landlord under the Lease in
the amount of $6,570.00 (the "Original Security Deposit"). The
aggregate amount of the AP Security Deposit and the Original Security
Deposit is $23,973.00. From and after the AP Commencement Date, the
term "Security Deposit' shall mean and refer to the aggregate of the AP
Security Deposit and the Original Security Deposit in the amount of
$23,973.00. The AP Security Deposit shall be subject to, and the use
and application thereof governed by, Section 4 of the Lease.
6. Tenant's Share of Operating Expenses: As of the AP Commencement Date,
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the Lease shall be modified to provide that Tenant's Share of Operating
Expenses (as defined in the Basic Lease Information and Section 6 of
the Lease) shall be increased to 10.70% (percentage of Phase I; 158,934
sf).
7. Tenant's Share of Tax Expenses: As of the AP Commencement Date, the
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Lease shall be modified to provide that Tenant's Share of Tax Expenses
(as defined in the Basic Lease Information and Section 6 of the Lease)
shall be increased to 62.37% (percentage of Building R; 27,265 sf).
8. Tenants' Share of Utility Expenses: As of the AP Commencement Date, the
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Lease shall be modified to provide that Tenant's Share of Utility
Expenses (as defined in the Basic Lease Information and Sections 6 and
7 of the Lease) shall be increased to 62.37% (percentage of Building R;
27,265 sf.
9. Tenant's Share of Common Area Utility Costs: As of the AP Commencement
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Date, the Lease shall be modified to provide that Tenant's Share of
Common Area Utility Costs (as defined in the Basic Lease Information
and Sections 6 and 7 of the Lease) shall be increased to 10.70%
(percentage of Phase I; 158,934 sf.
10. Unreserved Parking Spaces: As of the AP Commencement Date, the Lease
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shall be modified to provide that Tenant's Unreserved Parking Spaces
(as defined in the Basic Lease Information) shall be increased to
Fifty-seven (57).
11. Insurance: Tenant shall deliver to Landlord, upon execution of this
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Amendment, a certificate of insurance evidencing that the Additional
Premises are included within and covered by Tenant's insurance policies
required to be carried by Tenant pursuant to the Lease.
Please Initial
12. Brokers: Tenant warrants that it has had no dealings with any real
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estate broker or agent in connection with the negotiation of this
Amendment. If Tenant has dealt with my person, real estate broker or
agent with respect to this Amendment, Tenant shall be solely
responsible for the payment of any fee due to said person or firm, and
Tenant shall indemnify, defend and hold Landlord free and harmless
against any claims, judgments, damages, costs, expenses, and
liabilities with respect thereto, including attorneys' fees and costs.
13. Effect of Amendment: Except as modified herein, the terms and
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conditions of the Lease shall remain unmodified and continue in full
force and effect. In the event of any conflict between the terms and
conditions of the Lease and this Amendment, the terms and conditions
of this Amendment shall prevail.
14. Definitions: Unless otherwise defined in this Amendment, all terms not
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defined in this Amendment shall have the meanings assigned to such
terms in the Lease.
15. Authority: Subject to the assignment and subletting provisions of the
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Lease, this Amendment shall be binding upon and inure to the benefit
of the parties hereto, their respective heirs, legal representatives,
successors and assigns. Each party hereto and the persons signing
below warrant that the person signing below on such party's behalf is
authorized to do so and to bind such party to the terms of this
Amendment.
16. Incorporation: The terms and provisions of the Lease are hereby
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incorporated in this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and
year first above written.
TENANT:
JET FAX, INC.,
a Delaware corporation
By:
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Its:
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Date: December 8, 1997
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LANDLORD:
LINCOLN MENLO PHASE I ASSOCIATES LIMITED,
a California limited partnership
By:
Senior Vice President
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Date:
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Please Initial