Back to top

SECOND AMENDMENT TO LEASE AGREEMENT

Lease Agreement

SECOND AMENDMENT TO LEASE AGREEMENT | Document Parties: ELECTRONIC ARTS INC. | Louisville Realty Corporation You are currently viewing:
This Lease Agreement involves

ELECTRONIC ARTS INC. | Louisville Realty Corporation

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: SECOND AMENDMENT TO LEASE AGREEMENT
Governing Law: California     Date: 8/10/2009
Industry: Software and Programming     Sector: Technology

SECOND AMENDMENT TO LEASE AGREEMENT, Parties: electronic arts inc. , louisville realty corporation
50 of the Top 250 law firms use our Products every day

EXHIBIT 10.1

SECOND AMENDMENT TO LEASE AGREEMENT

THIS SECOND AMENDMENT TO LEASE AGREEMENT (this “ Second Amendment ”) is made and entered into by and between US INDUSTRIAL REIT II, a Texas real estate investment trust (“ Landlord ”) and ELECTRONIC ARTS INC., a Delaware corporation (“ Tenant ”).

W I T N E S S E T H:

WHEREAS, Louisville Realty Corporation, a Delaware corporation (“ Original Landlord ”) and Tenant entered into that certain Lease Agreement dated April 1, 1999 (the “ Original Lease ”), whereby Original Landlord leased to Tenant approximately 250,000 rentable square feet (the “ Premises ”) on the east side of the building located at 5000 Commerce Crossings Drive, Louisville, Kentucky (the “ Building ”), as more particularly described in the Original Lease;

WHEREAS, Original Landlord and Tenant entered into that certain First Amendment of Lease dated February 23, 2004 (the “ First Amendment ”), wherein the Term of the Original Lease was extended through April 30, 2010 (the Original Lease, as amended by the First Amendment, shall be referred to herein as the “ Lease ”);

WHEREAS, Landlord is successor in interest to that of Original Landlord; and

WHEREAS, Landlord and Tenant desire to further amend the Lease to provide for a further extension of the Term.

NOW, THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows (capitalized terms used herein having the meaning attributed to them in the Lease unless specifically otherwise provided):

1. Term . The Term is hereby extended to expire on April 30, 2015 (the “ Extended Term ”).

2. Renewal Options . Paragraph 4 of the Original Lease is hereby deleted in its entirety. The first clause of Paragraph 5 of the First Amendment is hereby deleted in its entirety and replaced by the following:

“Tenant shall have two (2) consecutive options (each, a “ Renewal Option ”) to renew the Term with respect to all (but not less than all) of the Premises demised under or pursuant to the Lease for additional terms (each, a “ Renewal Term ”) of five (5) years each, commencing on the day immediately following the expiration date of the Term or Renewal Term then in effect, under the following terms and conditions and subject to there being no material adverse change in Tenant’s financial condition:”


Similarly, Paragraph 5(c)(i) of the First Amendment is hereby deleted in its entirety and replaced by the following:

“The Base Rent for the first and second Renewal Terms shall be equal to the then prevailing market rent (“Prevailing Market Rent”) for similar institutional quality bulk warehouse space with a minimum twenty-eight foot (28’) clear height located within a radius of ten (10) miles of the Premises (the “Relevant Market Rent”). In no event shall the rental rate for any Renewal Term be less than the adjusted rental rate payable under this Lease on the expiration date of the Term or Renewal Term then in effect.”

3. Annual Base Rent . Notwithstanding anything in the Lease to the contrary, Tenant hereby agrees to pay annual Base Rent during the Extended Term with respect to the Premises according to the following schedule and in accordance with the Lease:

 

Periods During the

Extended Term

  

Annual Base Rent Rate Per

Square Foot of Net Rentable Area

  

Annual Base
Rent

  

Monthly
Payment

04/01/09 - 05/31/09

  

$0.00

  

$

0.00

  

$

0.00

06/01/09 - 12/31/09

  

$2.20

  

$

550,000.00

  

$

45,833.33

01/01/10 - 01/31/10

  

$0.00

  

$

0.00

  

$

0.00

02/01/10 - 04/30/10

  

$2.20

  

$

550,000.00

  

$

45,833.33

05/01/10 - 04/30/11

  

$2.60

  

$

650,000.00

  

$

54,166.67

05/01/11 - 04/30/12

  

$3.20

  

$

800,000.00

  

$

66,666.67

05/01/12 - 04/30/13

  

$3.30

  

$

825,000.00

  

$

68,750.00

05/01/13 - 04/30/14

  

$3.40

  

$

850,000.00

  

$

70,833.33

05/01/14 - 04/30/15

  

$3.50

  

$

875,000.00

  

$

72,916.67

Notwithstanding the foregoing, Landlord acknowledges receipt of Base Rent for the months of April, 2009, May, 2009, and June, 2009, paid pursuant to the terms and provisions of Paragraph 3 of the First Amendment, in the aggregate amount of One Hundred Seventy-One Thousand Eight Hundred Seventy-Five and 01/100 Dollars ($171,875.01). Accordingly, such advance payment of Base Rent shall be credited against Tenant’s obligation to pay Base Rent, as set forth above, for the months of June, 2009, July, 2009, and August, 2009, and the remainder of such advance payment of Base Rent ($34,375.02) shall be credited as a partial payment against Tenant’s obligation to pay Base Rent, as set forth above, for the month of September, 2009.

4. Additional Rent . During the Extended Term, Tenant shall continue to pay, as and when due, as Additional Rent, Tenant’s pro rata share of the Operating Costs of the Building and Property. In addition, during the Extended Term, Tenant shall continue to pay, as Additional Rent, all other amounts payable by Tenant pursuant to the terms and provisions of the Lease.

5. Controllable Costs . During the Extended Term, Controllable Costs shall continue to be capped pursuant to Paragraph 11 of the Original Lease (as amended by Paragraph 8(a) of the First Amendment); provided, however, Controllable Costs used to calculate the Additional Rent payable by Tenant under said Paragraph 11 of the Original Lease (as amended by Paragraph 8(a) of the First Amendment) shall not be increased by more than three percent (3%) cumulative per calendar year on a compounded basis. Tenant, at its expense has the right to


audit expenses annually during the Extended Term pursuant to the terms and provisions of Paragraph 11 of the Original Lease.

6. Condition of the Leased Premises . By its execution of this Second Amendment, Tenant acknowledges and agrees that all leasehold improvements and tenant finish in the Premises are in good and satisfactory condition, acceptable to Tenant, and Tenant acknowledges that it accepts the Premises in its present condition, i.e., “AS IS” and “WITH ALL FAULTS”. Tenant acknowledges that no representations as to the repair of the Premises or the Building, nor promises to alter, remodel or improve the Premises or the Building have been made by Landlord. Notwithstanding the foregoing, Landlord shall construct and install permanent leasehold improvements and tenant finish within the Premises in accordance with, and subject to the limitations and conditions set forth in Exhibit “A” attached hereto. Landlord and Tenant each agree that this document constitutes the entire agreement of the parties with respect to the condition of the Premises and there were no verbal representations, warranties or understandings pertaining to this Second Amendment.

7. Termination Option . Subject to and upon the terms, provisions and conditions set forth in this Paragraph, Tenant shall have the option (the “ Termination Option ”) to terminate the Lease with respect to all of the Premises effective as of October 31, 2012 (the “ Early Termination Date ”). In order to exercise the Termination Option, Tenant must (i) give Landlord written notice of its exercise of the Termination Option not later than January 31, 2012, and (ii) concurrently with the delivery of such notice, pay the Termination Fee (as hereinafter defined) to Landlord. If Tenant fails to give notice of exercise of the Termination Option by such deadline, such Termination Option shall be deemed waived and of no further force and effect. If Tenant gives notice of exercise of the Termination Option by such deadline, but fails to pay the Termination Fee to Landlord, Landlord may at its option either (A) deem the Termination Option waived and of no further force and effect or (B) enforce the termination of the Lease, effective as of such Early Termination Date, and Tenant’s obligation to pay the Termination Fee. The “ Termination Fee ” shall be an amount equal to Four Hundred Twenty-Seven Thousand Five Hundred and No/100 Dollars ($427,500.00). The Termination Option may be exercised by Tenant only if, at the time of such exercise and on the Termination Date, no Event of Default exists (unless Landlord, in its sole discretion, elects to waive such condition). Tenant shall have no right to assign the Termination Option nor shall any subtenant have the right to exercise the Termination Option.

8. Expansion Option . In the event any or all of the remaining rentable space in the Building (for purposes of this Paragraph 8, the “ Expansion Space ”) becomes available for lease, within sixty (60) days thereafter, Landlord shall give Tenant written notice thereof (the “ Availability Notice ”), which notice shall include a description of the Expansion Space and the date such Expansion Space will become available, and subject to the renewal rights, expansion rights, rights of first refusal and rights of first offer of other tenants in the Building heretofore granted by Landlord or which are included in any lease executed hereafter to which Tenant fails to exercise its rights under this Paragraph 8, Tenant shall have ten (10) days from the receipt of the Availability Notice to either (i) elect to lease said space as of the time of availability of such Expansion Space for occupancy, or (ii) notify Landlord that it does not desire to lease said Expansion Space. In the event Tenant declines or fails to respond within said ten (10) day period, Tenant shall be deemed to have elected not to lease such Expansion Space, Section 9 of


this Second Amendment shall be deemed of no further force or effect with respect to such Expansion Space, and Landlord shall have the right to lease such Expansion Space in Landlord’s sole discretion. If Tenant elects to lease the Expansion Space, then effective as of the date of availability of the Expansion Space, as set forth in the Availability Notice (subject to any holding over by a prior tenant of such Expansion Space) (the “ Expansion Space Delivery Date ”), such Expansion Space shall become a part of the Premises (and Tenant and its agents may access such space and otherwise move into such space), the annual Base Rent per square foot of rentable area for such Expansion Space shall be equal to the then applicable Base Rent with respect to the remainder of the Premises (and all subsequent increases in Base Rent) and such Expansion Space shall be subject to all of the terms, provisions and conditions of the Lease, except for any terms, covenants and conditions that are expressly or by their nature inapplicable to such Expansion Space and except that (a) Base Rent and Tenant’s Additional Rent with respect to such Expansion Space (or a lesser portion thereof) shall commence on the Expansion Space Delivery Date, (b) such Expansion Space and any and all leasehold improvements therein will be provided in its current “AS IS, WHERE IS” condition; provided however, Tenant will be provided with a leasehold improvement allowance equal to One and No/100 Dollars ($1.00) multiplied by the rentable square footage of such Expansion Space, multiplied by the number of months remaining in the Extended Term as of the date of Landlord’s delivery of the Expansion Space to Tenant and divided by seventy-three (73), which is the total number of months in the Extended Term and (c) the Term of the Lease insofar as it relates to such Expansion Space shall be coterminous with the Term (as same may be extended pursuant to the terms and provisions of the Lease) with respect to the Premises. The Lease shall be deemed to have been automatically amended in accordance with this Paragraph 8 as of such Expansion Space Delivery Date, and Tenant and Landlord shall thereafter promptly execute and deliver an appropriate amendment of the Lease to evidence the foregoing. The right of Tenant to lease the Expansion Space may be exercised by Tenant only if at the time of such exercise, no Event of Default exists (unless Landlord, in its sole discretion, elects to waive such condition). No subtenant of the Premises shall have the right to exercise the rights of Tenant under this Paragraph 8. Notwithstanding anything set forth in this Paragraph 8 to the contrary, Tenant’s rights to lease the Expansion Space pursuant to this Paragraph 8 shall terminate on the day that is two (2) years from the Effective Date of this Second Amendment.

9. Right of First Refusal . (a) Paragraph 7 of the First Amendment is hereby deleted in its entirety. Subject to the terms and provisions of Paragraph 8 above, from and after the day that is two (2) years from the Effective Date of this Second Amendment, and subject to the renewal rights, expansion rights, rights of first refusal and rights of first offer of other tenants in the Building heretofore granted by Landlord or which are included in any lease executed hereafter to which Tenant fails to exercise its Right of Refusal under this Paragraph 9, Tenant shall have a one time right of first refusal (the “ Right of Refusal ”) to lease all remaining rentable space in the Building (for purposes of this Paragraph 9, the “ Refusal Space ”). The “one-time” nature of the Right of Refusal shall mean that Tenant’s Right of Refusal shall apply only the first time each portion of the Refusal Space becomes available. For example, in the event one-half of the Refusal Space becomes available, Tenant’s Right of Refusal shall apply the first time said space becomes available during the Extended Term, but no subsequent availability of such space shall trigger the Right of Refusal. Similarly, in the event at a later date the remaining one-half of the Refusal Space becomes available, Tenant’s Right of Refusal shall apply the first time said space becomes available during the Extended Term, but no subsequent availability of such space shall trigger the Right of Refusal.


(b) In the event Landlord desires to accept an offer to lease all or a portion of the Refusal Space from any third party (a “ Lease Offer ”), as evidenced by a term sheet or letter of intent signed by the third party prospect (subject to any confidentiality requirements of such third party prospect), Landlord shall give Tenant written notice thereof (the “ ROFR Availability Notice ”), which notice shall state Landlord’s determination of the Prevailing Market Rent rate for such Refusal Space described in the Lease Offer and Tenant shall have five (5) business days from the date of receipt of the ROFR Availability Notice to either (i) elect to lease said space at the Prevailing Market Rent rate stated in the ROFR Availability Notice, by delivering written notice thereof (the “ Election Notice ”) to Landlord within such five (5) business day period, or (ii) notify Landlord that it does not desire to lease said space. In the event Tenant notifies Landlord that it does not desire to lease said space or Tenant fails to deliver the Election Notice to Landlord within said five (5) business day period, Tenant shall be deemed to have elected not to lease said space, and Tenant’s Right of Refusal with respect to the Refusal Space (or portion thereof, as applicable) shall thereafter be of no further force or effect.

(c) If Tenant exercises the Right of Refusal, then effective as of the date Landlord delivers possession of the Refusal Space to Tenant, such Refusal Space shall become a part of the Premises, the annual Base Rent per rentable square foot for such Refusal Space shall be equal to the Prevailing Market Rent rate as stated in the ROFR Availability Notice and such Refusal Space shall be subject to all of the terms, provisions and conditions of this Lease, except for any terms, covenants and conditions that are expressly or by their nature inapplicable to such Refusal Space, except that (i) Base Rent and Tenant’s pro rata share of Operating Costs with respect to such Refusal Space s


 
SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)


Try our advanced search >>
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates
Email:
This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more