EXHIBIT
10.31
FIRST AMENDMENT TO LEASE AND
LICENSE
THIS FIRST AMENDMENT TO LEASE AND LICENSE (this
"Amendment") is entered into as of the l9th day of September, 2006
(the "Effective Date"), by and between RREEF AMERICA REIT
III-ZI LLC , a Delaware limited liability company
("Landlord"), successor in interest to BCIA New England Holdings
LLC, a Delaware limited liability company (the "Original Landlord")
and HIFN, INC. , a California corporation
("Tenant").
Recitals
A. Landlord is the owner of certain real property
located and known as Point West Place, 111 Speen Street,
Framingham, Massachusetts (the "Land") and the building thereon
(the "Building") and other improvements constructed thereon (the
Land, the Building and the other improvements are hereinafter
collectively referred to as the "Property").
B. Reference is made to that certain lease dated
as of June 30, 2003 (the "Lease") between the Original Landlord, as
landlord, and Tenant, as tenant, as modified by Commencement Date
Letter dated September 15, 2003 between Original Landlord and
Tenant, with respect to a portion of the Building, currently
consisting of approximately 4,177 rentable square feet on the
second floor (the "Leased Premises").
C. Reference is also made to that certain Storage
Space License dated January 31, 2004 between Original Landlord, as
Landlord, and Tenant, as Tenant (the "License").
D. Landlord is the current owner of the Property
and the current holder of the Landlord's interest under both the
Lease and the License and Tenant is the current holder of the
Tenant's interest under both the Lease and the License.
E.
Landlord and Tenant desire to
extend the term of the Lease and License, and to otherwise amend
the Lease and License as more particularly set forth
below.
NOW THEREFORE, for valuable consideration, the
receipt and sufficiency of which is hereby mutual1y acknowledged,
Landlord and Tenant hereby agree that the Lease and License are
hereby amended as follows:
Agreements
1. Capitalized Terms .
Each capitalized term appearing but not defined herein shall have
the meaning, if any, ascribed to such term in the Lease or the
License, as the context shal1 require.
2. Recitals . The recitals above set forth are true and
complete and are incorporated herein by reference.
3. Amendments . As of the Effective Date, the Lease is hereby
amended as follows:
(a) Landlord . The term "Landlord," as
used in both the Lease and the License is hereby amended to read in
its entirety as follows:
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RREEF
AMERICA REIT In - Z1 LLC , a
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Delaware
limited liability company
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(b) Landlord's Address . For all purposes
under the Lease and License, Landlord's address and Landlord's
Managing Agent's address for notice shall be as follows:
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c/o RREEF
Management Company
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4. Amendments to License .
(a)
Landlord and Tenant hereby agree
that the term of the License is hereby extended so that it shall
expire upon the date of expiration or earlier termination of the
Lease, as amended hereby, unless the License is sooner terminated
by Landlord in accordance with the provisions of the License.
Tenant hereby accepts the Storage Space as defined in Section 1 of
the License "As Is", in its current condition, without any
representations or warranties by Landlord and without any
obligation by Landlord to prepare the same for Tenant's use and
occupancy or to make any payments or to give any allowances to
Tenant.
(b)
Section 1 (g) of the License is
hereby amended by inserting the following at the end of the
penultimate sentence thereof: "in which event Landlord may
terminate this License immediately upon giving notice of
termination to Tenant."
(a)
Basic Rent
. Until November 30, 2006, Basic
Rent shall remain payable as per the current Lease. Commencing as
of December 1, 2006 and continuing through the remainder of the
term as extended, Basic Rent shall be payable in the following
amounts:
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Period
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Rentable Square
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Rent
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Annual Rent
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Monthly Installment
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from
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to
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Footage
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Per Square Foot
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of Rent
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12/1/2006
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11/30/2007
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4,177
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$24.00
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$100,248.00
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$8,354.00
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12/1/2007
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11/30/2008
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4,177
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$25.00
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$104,425.00
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$8,702.08
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12/1/2008
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11/30/2009
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4,177
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$26.00
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$108,602.00
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$9,050.17
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12/1/2009
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I 1/30/2010
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4,177
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$27.00
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$112,779.00
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$9,398.25
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12/1/2010
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11/30/2011
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4,177
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$28.00
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$116,956.00
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$9,746.33
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(b)
Base Year for Operating
Expenses . Effective
December 1, 2006: Calendar year 2007.
(c)
Base Year for Taxes
. Effective December 1, 2006:
Calendar year 2007.
Calendar Year
2007 is comprised of half of tax fiscal year 2007, (i.e., January
1, 2007 through June 30, 2007) and half of tax fiscal year 2008,
(i.e., July 1, 2007 through December 31, 2007).
(d)
Tax Year . Effective December 1, 2006: "Tax Year" shall
mean a calendar
year or portion
thereof included within the Term, which calendar year may be
comprised of portions of more
than one tax 'fiscal year. For example, the Tax Year which is
Calendar Year 2008 is comprised of half of tax fiscal year 2008,
(i.e., January 1, 2008 through June 30, 2008) and half of tax
fiscal year 2009, (i.e., July 1,2008 through December
31,2008).
(e) Term .
The Term, currently scheduled to expire on November 30, 2006, is
hereby extended for an additional period of five (5) years,
beginning December 1, 2006 and ending November 30, 2011.
(f)
Agent . Effective immediately, the Agent (as defined
in Section 1.2 of the Lease) is RREEF Management Company,
a Delaware corporation.
(g)
Effective December 1, 2006, Article
8.1 (b) of the Lease is hereby deleted and the following
substituted therefor:
"(b) In the
event that Taxes assessed for any Tax Year shall exceed Base Taxes,
Tenant shall pay to Landlord, as Additional Rent, an amount equal
to (i) the excess of Taxes assessed for such Tax Year over Base
Taxes, multiplied by (ii) Tenant's Proportionate Share, both the
Taxes assessed for the Tax Year and the Base Taxes to be
apportioned in the case of any partial Tax Year at the end of the
Term."
(h) Article 14.1 (a) of the Lease, defining "Default
of Tenant" is hereby amended to add a new subdivision (ix)
as follows: "Tenant shall fail to perform or observe any term or
condition contained in the License and such failure shall continue
beyond any applicable notice and cure periods provided for in the
License".
(i)
Condition of Premises
. In connection with this Amendment,
Landlord shall provide (i) 600 CFM cabinet exhaust fan on
thermostat for Tenant's computer room and (ii) a central system
diffuser balanced to 200 CFM plus four (4) 2x2 grilles for the
Tenant's lab area. Except as set forth in the preceding sentence,
Tenant hereby acknowledges and agrees that (i) the Premises and the
Storage Space are satisfactory to Tenant in all respects in their
"AS IS" condition, without representation or warranty of any kind
by Landlord, (ii) it is the current tenant of the Premises and the
Storage Space, (iii) it has inspected and is familiar with the
Premises and the Storage Space as the current tenant of the
Premises and the Storage Space, (iv) has found the Premises and the
Storage Space to be satisfactory to its intended uses, and (v)
Landlord is not required to complete any unperformed repair or
other work with respect to the Premises or the Storage Space as of
the date of this Amendment.
(j)
Security Deposit
. Landlord acknowledges that it is
presently holding a cash Security Deposit in the amount of
$19,840.75, which is presently the "Required Amount" pursuant to
Section 14.8 of the Lease. Landlord and Tenant hereby agree that
the "Required Amount" of the Security Deposit shall remain as
$19,840.75 throughout the remainder of the Term, as extended
hereby, without reduction. The Security Deposit shall continue to
be held by Landlord subject to the terms of Section 14.8 of the
Lease.
(k)
Extension Option
. Section 15.20 of the Lease and
all references thereto are hereby deleted. Tenant shall have no
right or option to extend the Term of this Lease for the
Extension
Period provided for in said Section 15.20 or for any other period
beyond Novemb