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EXHIBIT - 10.7.2
MOSSIMO, INC.
SECOND AMENDMENT TO OFFICE LEASE DATED JANUARY 1, 2004
THIS SECOND AMENDMENT TO LEASE (this "AMENDMENT") is entered
into
between CF SANTA MONICA OFFICE II, L.P., a
Delaware limited partnership
("LANDLORD"), and MOSSIMO, INC., a Delaware
corporation ("TENANT"), with
reference to the following:
A. Lexington-Broadway Place, L.L.C. (predecessor-in-interest to
Landlord) and Tenant entered into that
certain Lease dated June 29, 2000 and
that certain First Amendment to Office
Lease dated as of June 26, 2002 (as
amended, the "LEASE") currently covering
approximately 5,994 rentable square
feet consisting of 2016 Broadway Boulevard
and 2018 Broadway Boulevard (the
"CURRENT PREMISES") of Broadway Place,
Santa Monica, California (the "PROJECT").
B. Tenant desires, inter alia, to expand the Premises to include
2032A
Broadway Boulevard, and to extend the Lease
Term.
C. Landlord and Tenant now desire to further amend the Lease as
set
forth below. Unless otherwise expressly
provided in this Amendment, capitalized
terms used in this Amendment shall have the
same meanings as in the Lease.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency
of
which are acknowledged, the parties agree
as follows:
1. FIRST EXTENSION PERIOD. Although the
Lease Term (until this Amendment)
expires on July 31, 2005, the parties have
agreed that, as part of the business
terms of the transaction memorialized in
this Amendment, the current Lease Term
(i.e., as to the Current Premises) will
expire on March 31, 2004. Thereafter,
Lease Term as to the entire Premises (i.e.,
the Current Premises and the Second
Expansion Space, as defined below) is
extended for a period of four (4) years
(the "FIRST EXTENSION PERIOD") commencing
on April 1, 2004 and expiring on March
31, 2008.
2. SECOND EXPANSION SPACE. Landlord leases
to Tenant and Tenant leases from
Landlord 2032A Broadway Boulevard,
consisting of approximately 3,406 additional
rentable square feet (the "SECOND EXPANSION
SPACE") in the Project as shown on
the attached EXHIBIT A, which is
incorporated into this Amendment for all
purposes. The outline of the Premises
attached to the Lease as EXHIBIT A-X is
deleted and replaced with EXHIBIT A
attached to this Amendment, and the term
"PREMISES" as used in the Lease means and
includes approximately 9,400 rentable
square feet, being the sum of the rentable
square footage of the Current
Premises (5,994 rentable square feet) and
the Second Expansion Space. The lease
of the Second Expansion Space is subject to
all of the terms and conditions of
the Lease currently in effect, except as
modified in this Amendment. Landlord
shall tender the Second Expansion Space to
Tenant on April 1, 2004, at which
time Tenant's obligation to pay Rent
pursuant to the Lease (as amended) for the
Second Expansion Space shall commence.
Possession of space to commence on Jan.
5, 04.
3. MINIMUM RENT. Commencing on April 1,
2004 and continuing through the First
Extension Period, Tenant shall, at the time
and place and in the manner provided
in the Lease, pay to Landlord as Minimum
Rent for the entire Premises the
amounts set forth in the following rent
schedule, plus any applicable tax
thereon:
MINIMUM
-------
PERIOD
RENT
RATE
------
----
----
April 1, 2004 thru March 31, 2005 $24,910.00
$2.65
April 1, 2005 thru March 31, 2006 $25,662.00
$2.73
April 1, 2006 thru March 31, 2007 $26,414.00
$2.81
April 1, 2007 thru March 31, 2008 $27,166.00
$2.89
April 1, 2008 thee July 31, 2009 $28,012.00
$2.98
4. ADDITIONAL RENT. Commencing on April 1,
2004, Tenant's Share of Direct
Expenses payable in accordance with Section
4 of the Lease shall increase to
12.47% to take the Second Expansion Space
into consideration.
5. CONDITION OF PREMISES.
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(a) Tenant accepts the Current Premises and the Second Expansion
Space
in their "as-is" condition "with all
faults" without any agreements,
representations, undertakings or
obligations on the part of Landlord to perform
any alterations, repairs or
improvements.
(b) Tenant shall, at Tenant's expense, cause to be constructed
and
installed in the Second Expansion Space in
a good and workmanlike manner and in
strict compliance with applicable laws,
codes, regulations and ordinances the
permanent leasehold improvements desired by
Tenant and approved by Landlord (the
"IMPROVEMENTS"). Tenant acknowledges that
Landlord is not an architect or
engineer. Accordingly, Landlord's approval
of the proposed Improvements is not a
representation by Landlord that the
Improvements will comply with applicable
laws, codes, regulations and ordinances or
be free from errors, omissions, or
defects, and Landlord will have no
liability therefor, it being expressly
understood and agreed by Tenant that such
matters are Tenant's responsibility.
(c)
Landlord shall reimburse Tenant for costs and expenses of the
Improvements up to a maximum of $150,000.00
(the "IMPROVEMENT ALLOWANCE") upon
delivery by Tenant to Landlord of (i)
Tenant's written request for the
Improvement Allowance made no earlier than
April 1, 2004 nor later than June 30,
2004, and (ii) evidence satisfactory to
Landlord, which evidence must include
(but is not limited to) original invoices
marked "paid" by the issuer and final
lien releases from all contractors,
subcontractors and materials suppliers
involved in the Improvements, that Tenant
paid no less than $150,000.00 for the
Improvements. In the event Tenant fails to
comply with the immediately preceding
sentence, Tenant shall, for itself and its
successors and assigns, forfeit and
renounce any right to the Improvement
Allowance, and Landlord shall have no
further obligation to provide the
Improvement Allowance to Tenant. If Tenant
does so comply, Landlord shall reimburse
Tenant as set forth above within thirty
(30) days following Landlord's receipt of
the items enumerated in (i) and (ii).
(d) LIABILITIES ARISING FROM CONSTRUCTION; INDEMNITY. LANDLORD
SHALL
NOT BE LIABLE IN ANY WAY FOR ANY INJURY,
LOSS OR DAMAGE WHICH MAY OCCUR TO ANY
OF TENANT'S INSTALLATIONS DURING
CONSTRUCTION OF THE IMPROVEMENTS, THE SAME
BEING SOLELY AT TENANT'S RISK, EVEN IF
CAUSED BY THE SOLE OR CONCURRENT
NEGLIGENCE OF LANDLORD. TENANT HEREBY
INDEMNIFIES AND FOREVER HOLDS HARMLESS
LANDLORD AND LANDLORD'S PROPERTY MANAGER
FOR THE PROJECT, TOGETHER WITH THEIR
RESPECTIVE OFFICERS, SHAREHOLDERS,
SUCCESSORS AND ASSIGNS, AGAINST ANY AND ALL
CLAIMS, DAMAGES, LOSSES, INJURIES,
PENALTIES, COSTS, EXPENSES (INCLUDING
ATTORNEYS' FEES AND EXPERT AND CONSULTING
FEES), DEMANDS, LITIGATION, SETTLEMENT
PAYMENTS, CAUSES OF ACTION OR JUDGMENTS,
LOSSES, LIABILITIES, AND EXPENSES
ARISING OUT OF THE PERFORMANCE OF ANY WORK
BY TENANT'S CONTRACTORS AND TENANT'S
SUBCONTRACTORS, EVEN IF CAUSED BY THE
CONCURRENT NEGLIGENCE, BUT NOT THE GROSS
NEGLIGENCE OR RECKLESSNESS, OF LANDLORD.
While in or upon the Premises and the
Project for the purposes of performing the
Improvements, Tenant and Tenant's
contractors and subcontractors shall comply
with all terms and provisions of the
Lease and Landlord's Rules and Regulations,
which shall govern the relationship
of the parties.
(e) Landlord and Tenant each agrees that this PARAGRAPH 5
constitutes
the entire agreement of the parties
regarding the Improvements and the
Improvement Allowance, and that there were
no verbal representations, warranties
or understandings pertaining to the
Improvements, the Improvement Allowance, or
this Amendment. TENANT FURTHER ACKNOWLEDGES
AND AGREES THAT LANDLORD DOES HEREBY
DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED
TO THOSE OF FITNESS FOR A PARTICULAR
PURPOSE, WITH RESPECT TO THE LEASED
PREMISES AND/OR THE IMPROVEMENTS LOCATED OR
TO BE CONSTRUCTED THEREIN.
6. ADA COMPLIANCE.
(a) Please be advised that an owner or lessee of real property may
be
subject to the Americans With Disabilities
Act (the "ADA"), a Federal law
codified at 42 USC Section 12101 et seq.
Among other requirements of the ADA
that could apply to the Premises, Title III
of the ADA requires lessors and
lessees of "public accommodations" to
remove barriers to access by disabled
persons and provide auxiliary aids and
services for hearing, vision or speech
impaired persons by January 26, 1992. The
regulation
