THIS FIRST
AMENDMENT TO LEASE (the “First Amendment”) is made and
entered into as of the 3 rd day of July , 2007, by and between BOCA
54 NORTH LLC, a Delaware limited liability company (the
“Landlord”), and OFFICE DEPOT, INC., a Delaware
corporation (the “Tenant”).
WHEREAS, Landlord
and Tenant entered into that certain Lease Agreement dated
November 10, 2006 (the “Lease”), including the
Construction Addendum attached as Exhibit A thereto;
and
WHEREAS, the
parties have agreed to amend the Lease, on the terms and conditions
hereinafter set forth.
NOW, THEREFORE,
for and in consideration of the mutual promises contained herein,
and for Ten and No/100 Dollars ($10.00) and other good and valuable
consideration paid by the Landlord to Tenant, the receipt and
sufficiency of which is hereby acknowledged by Tenant, the parties
for themselves and their successors and assigns hereto hereby
covenant and agree as follows:
1.
Recitals . The above recitals are true and correct and are
incorporated herein as if set forth in full.
2.
Capitalized Terms . All capitalized terms not defined in
this First Amendment shall have the same meaning as set forth in
the Lease.
3. Golf
Course Parcel; Amendment to Memorandum of Lease . The parties
acknowledge that Landlord has acquired fee simple title to the Golf
Course Parcel as required by the Lease, and that, therefore,
Section 11.33 of the Lease is terminated and is null and void
and of no further force or effect. The Memorandum of Lease
described in Section 11.7 of the Lease was recorded in
Official Records Book 21086, Page 1233, of the Public Records of
Palm Beach County, Florida. In accordance with Section 11.7 of
the Lease, the parties executed an Amendment to Memorandum of
Lease, which has been recorded in Official Records Book 21539, Page
1330, of the Public Records of Palm Beach County,
Florida.
4. Base
Rent . The first sentence of Section 2.1 of the Lease is
hereby deleted in its entirety and replaced with the following
language: “For purposes of this Lease, the “Base Rent
Commencement Date” shall mean the later of (a) the date
that Landlord achieves Substantial Completion of the Leasehold
Improvement Work (as defined in the Construction Addendum), and (b)
November 1, 2008.”
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5.
Technical Revisions to Construction Addendum . The following
revisions are hereby made to the Construction Addendum:
(a)
Excusable Delay . In Section 1.10 of the Construction
Addendum, on the first line, the following is hereby inserted after
“Work”: “(or, as to Punchlist Items, any actual
delay in completion of the Punchlist Items).”
(b)
General Contractor and Leasehold Improvement Contractor . In
Sections 1.13 and 1.19 of the Construction Addendum, on the
first line of each, the words “Centex Construction,
LLC” are hereby deleted and replaced with the following:
“Balfour Beatty Construction, LLC.”
(c)
Projected Completion Date of the Base Building Work . In
Section 1.28 of the Construction Addendum:
(i) on
the second line, “August 28, 2008” is hereby
deleted and replaced with the following: “October 20,
2008.”
(ii) the
following is hereby inserted at the end: “Further provisions
regarding the construction of aspects of the Base Building Work by
August 28, 2008 are set forth in Section 1.33,
below.”
(d)
Projected Completion Date of the Leasehold Improvement Work
. Section 1.29 of the Construction Addendum is hereby deleted
in its entirety and replaced with the following language:
““ Projected Completion Date of the Leasehold
Improvement Work ” means the projected date of
Substantial Completion of the Leasehold Improvement Work which is
October 20, 2008, subject to extension for Excusable Delays,
Tenant Delays, and agreed-on Tenant’s Leasehold Improvement
Changes. In addition, Landlord shall construct as much of the
Leasehold Improvement Work as allowable pursuant to Legal
Requirements on or before the following dates: (i) for the
northern most building (the “North Building”),
September 15, 2008, and (ii) for the building (the
“Center Building”) located between the North Building
and the southern most building (the “South Building”),
October 1, 2008. Prior to Substantial Completion of the Work,
in contemplation of Tenant’s phased installation of
furniture, fixtures, and equipment as contemplated herein, (A)
Tenant shall not unreasonably interfere with Landlord’s work
relative to achieving said Substantial Completion of the Work, and
(B) Landlord shall not unreasonably interfere with
Tenant’s installation of its furniture, fixtures, and
equipment as contemplated herein.”
(e)
Punchlist Items . In Section 1.32 of the Construction
Addendum:
(i) on
the ninth line, the following is hereby inserted after
“Delay”: “(but in no event will the Punchlist
Items for the Leasehold Improvement Work be completed later than
forty-five (45) days after Substantial Completion of the
Leasehold Improvement Work, subject to extension for Excusable
Delay).”
(ii) the
following is hereby inserted at the end: “In addition, after
such construction of the Leasehold Improvement Work prior to
Substantial Completion thereof as contemplated in Section 1.29 of
this Construction Addendum, Tenant shall cause the Leasehold
Improvement Architect to prepare a schedule of Punchlist Items for
the Leasehold Improvement
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Work on a
per-Building basis or a per-floor basis within each Building, so
that Punchlist Items for portions of the Leasehold Improvement Work
that are so constructed can be established before the overall
Substantial Completion of the Leasehold
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