California-San Jose-333 West Santa Clara Street Lease [Amendment No. 1] - Macanan Investments and BAM! Entertainment Inc.
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE is effective as of May 1, 2002 by and between
MACANAN INVESTMENTS, a California limited partnership ("Landlord") and BAM!
Entertainment, Inc., a Delaware corporation ("Tenant").
RECITALS
A. Pursuant to that certain Office Space Lease dated May 3, 2001,
relating to approximately four thousand, eight hundred fifty-five (4,855) feet
of rentable area, known as suite 716, in those certain premises located at 333
West Santa Clara Street, San Jose, California, more particularly described
therein, and herein referred to as the "Original Leased Premises".
B. The parties hereto now desire to amend the Lease to extend the Lease
Term to April 30, 2005, and to increase the gross leasable square footage
contained in the Leased Premises by four thousand, six hundred seventy-eight
(4,678) square feet of gross leasable area including four thousand, two hundred
seventy-one (4,271) square feet of useable area known as suite 708 on the
seventh floor of the Comerica Bank Building. The portion of the Leased Premises
being added is shown on Exhibit B-2 together with the Original Leased Premises,
as shown on Exhibit B-1 attached hereto and incorporated herein by this
reference. The parties also desire to reduce the Base Monthly Rent of the
Original Leased Premises as of May 1, 2002 to the same per square foot cost per
month as that which will be paid for the additional leased premises. The parties
agree that the
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previous personal lease guarantee, which is now in effect, will be voided by
Landlord upon signing First Amendment.
NOW, THEREFORE, in consideration for the terms, covenants and conditions
contained herein, the parties hereto agree as follows:
1. The description of the Leased Premises referred to herein as the
Original Leased Premises and shown on Exhibit B-1 to the Lease is
hereby expanded to include Exhibit B-2. Page 2 of Exhibit B-2
shows the relationship of space in Exhibit B-1 and Exhibit B-2.
2. The parties agree that all references in the Lease to the "Leased
Premises" shall refer to the Increased Leased Premises, as herein
defined. All other words and phrases defined in the Lease shall
have the same meaning when used herein and therein.
3. Various other changes involving lease term, tenants allocated
share, operating expense base year, real property base tax year,
prepaid rent, security deposit, construction and delivery of
tenant improvements, early occupancy, new rent commencement date,
base monthly rent and periodic increase in monthly rent are
changed.
4. Paragraph 1.1 of the Lease is hereby modified to read as follows:
1.1 Rent Commencement Date. The term "Rent Commencement Date"
shall mean as of May 1, 2002.
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5. Paragraph 1.2 of the Lease is hereby modified to read as follows:
1.2 Lease Term. The Lease Term is extended to April 30, 2005
unless this Lease is sooner terminated according to its
term or by mutual written agreement.
6. Paragraph 1.5 of the Lease is hereby modified to read as follows:
1.5 Leased Premises. The term "Leased Premises" shall mean
those certain premises which are a portion of, and located
within, the Building as shown by the floor plan attached
hereto as Exhibit B-1 and Exhibit B-2 containing
approximately nine thousand, five hundred thirty-three
(9,533) square feet of gross leasable area ("Tenant's
Gross Leasable Area") including approximately eight
thousand, seven hundred three (8,703) square feet of
usable area ("Tenant's Net Leasable Area").
7. Paragraph 1.6 of the Lease is hereby modified to read as follows:
1.6 Tenant's Allocated Share. The term "Tenant's Share" shall
mean the percentage obtained by dividing Tenant's Gross
Leasable Area by the Building Gross Leasable Area, which
as of May 1, 2002, is agreed to be four and forty-seven
hundredths (4.47%).
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8. Paragraph 1.7 of the Lease is hereby modified to read as follows:
1.7 Prepaid Rent. The term "Prepaid Rent" shall mean the sum
of twenty-nine thousand, five hundred fifty-two dollars
($29,552.00).
9. Paragraph 1.8 of the Lease is hereby modified to read as follows:
1.8 Security Deposit. The term "Security Deposit" shall mean
an additional amount of ten thousand, one hundred
thirty-two dollars ($10,132.00) shall be added to that
security deposit already on deposit for suite 716 for a
total amount of twenty-nine thousand, five hundred
fifty-two ($29,552.00) dollars.
10. Paragraph 1.11 of this Lease is hereby modified to read as
follows:
1.11 Operating Expense Base Year. Effective May 1, 2002, the
term "Operating Expense Base Year" shall mean the calendar
year of 2002 for suite 708 and shall remain unchanged for
suite 716.
11. Paragraph 1.12 of the Lease is hereby modified to read as
follows:
1.12 Real Property Base Tax Year. The term "Real Property Base
Tax Year" shall mean the fiscal year 2001/2002 commencing
July 1, 2001 and ending June 30, 2002 for the entire
leased premises.
12. Paragraph 2.2 of the Lease is hereby modified to read as follows:
2.2 Construction of Tenant Improvements. Prior to the Rent
Commencement Date, Landlord shall construct certain
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improvements as shown on RMW Drawing #21227.00 dated
3/14/02, which has been approved by Tenant and Landlord.
Any delays, including change orders, caused by Tenant
which delays the completion of the tenant improvements by
Landlord will offset the completion of work, on a day for
day basis, but in no event abate the rent or change the
rent commencement date.
13. Paragraph 2.3 of the Lease is hereby modified to read as follows:
2.3 Delivery and Acceptance of Possession. Landlord will
complete work required of Landlord pursuant to Paragraph
2.2 by April 30, 2002 providing Tenant has approved said
plans by April 1, 2002.
14. Paragraph 2.4 of the Lease is hereby modified to read as follows:
2.4 Early Occupancy. Tenant may enter or permit its
contractors to enter the Leased Premises prior to the Rent
Commencement Date by April 15, 2002, it shall do so upon
all of the terms of this Lease (including its obligations
regarding indemnity and insurance) except those regarding
the obligation to pay rent, which shall commence on the
Rent Commencement Date.
15. Paragraph 3.1 of the Lease is hereby modified to read as follows:
3.1 Base Monthly Rent. Commencing on May 1, 2002 and
continuing throughout the remainder of the Lease Term,
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Tenant shall pay to Landlord a monthly rent (the "Base
Monthly Rent"), which shall be $29,552.00.
16. Paragraph 3.7 is hereby added to the Lease to read as follows:
3.7 Periodic Increase in Base Monthly Rent. On May 1, 2002
("Rent Commencement Date") and continuing until adjusted
pursuant to this paragraph, Tenant shall pay to Landlord
Base Monthly Rent in the initial amount set forth in
paragraph 3.1 above. However, the amount of the Base
Monthly Rent shall be redetermined in accordance with the
following formula as of and effective on each calendar
anniversary of the lease (the "Rent Adjustment Date") to
reflect any increase or decrease in the "Consumer Price
Index" (as that term is defined in paragraph 15.12) that
has occurred since the Rent Commencement Date. The Base
Monthly Rent commencing May 1, 2003 and May 1, 2004
determined by multiplying (i) the amount of the Base
Monthly Rent immediately preceding the adjustment by (ii)
a fraction whose numerator is the Consumer Price Index
published nearest and preceding the relevant Rent
Adjustment Date and whose denominator is the Consumer
Price published nearest and preceding the Rent
Commencement Date. However, in no event shall the Base
Monthly Rent adjustment be (i) an amount greater than 3%
per
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year, or (ii) an amount less than the Base Monthly Rent
immediately preceding the adjustment.
17. Paragraph 4.5 of the Lease is hereby modified to read as follows:
4.5 Parking. Parking in the Building garage will be available
up to 40 spaces on month-to-month leases at the initial
rates of $90.00 per space per month for unreserved covered
parking and $60.00 per space per month for unreserved
uncovered parking if available (on the fourth (4th) floor
of the parking garage only). Landlord may adjust parking
rates to market during lease term or any extension
thereof. If Tenant elects to lease parking spaces on the
fourth (4th) floor of the parking garage, Tenant will be
issued a parking card for each space leased which will
permit the user to enter and exit the fourth (4th) floor
in addition to the ground floor entrance and exit of the
parking garage. If, after electing to lease parking spaces
on the fourth (4th) floor of the parking garage, Tenant or
its employees park on any floor other than the fourth
(4th) floor, Tenant's parking card will be automatically
cancelled and Tenant will be required to contact the
Building Manager to reactivate the cancelled parking card.
Tenant will be charged an additional $30.00 per month for
each card that must be reactivated due to improper use.
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Tenant shall not at any time use or permit its employees
or invitees to use more parking spaces than the number so
allocated to Tenant. Except as may be herein provided,
Tenant shall not have the exclusive right to use any
specific parking space. In the event Landlord elects or is
required by any Law to limit or control parking in the
Property, whether by validation of parking tickets or any
other method, Tenant, subject to its right to the
non-exclusive use of the number of parking spaces above
specified, agrees to participate in such validation or
other program under such reasonable rules and regulations
as are from time to time established by Landlord.
18. Any breach or default under any provisions of this First
Amendment shall be a breach or default under the Lease, and any
breach or default under the Lease shall be a breach or default
under this First Amendment. To the extent there may be any
inconsistencies between the terms of this Amendment and any terms
of the Lease, the terms of this Amendment shall prevail. In all
other respects, the Lease shall remain in full force and effect.
All capitalized terms not defined herein shall have the meaning
set forth in the Lease.
19. The Lease Guarantee signed on behalf of Bay Area Multimedia (now
BAM! Entertainment, Inc.) by Guarantor, Ray Musci (Individual) on
May 3, 2002, in favor of Macanan Investments, is hereby deleted
and has no further force or effect.
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Lease on the respective dates set forth below to be effective as of
May 1, 2002.
LANDLORD:
MACANAN INVESTMENTS,
A California limited partnership
By: MACANAN FINANCIAL CORPORATION,
A California corporation,
Its general partner
Dated: 3/29/02 By: /s/ DONALD MACMILLAN
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Donald MacMillan
President
Dated: 3/29/02 By: /s/ W. JOHN BUCHANAN
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W. John Buchanan
Secretary
TENANT:
BAM! Entertainment, Inc.
A Delaware corporation
Dated: 29 March 2002 By: /s/ S M Ambler
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Exhibit B-1
[DIAGRAM]
A-1
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[DIAGRAM]
A-2
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Exhibit B-2
[DIAGRAM]
A-3