exv10w23






EXHIBIT
10.23




First Amendment to Lease Agreement



This First Amendment to Lease Agreement (the “Amendment”) is made and entered into as of August 28,
2000, by and between Principal Development Investors, LLC, a Delaware limited liability company
(“Landlord”) and Abaxis, Inc, a California corporation (“Tenant”), with reference to the following
facts.




Recitals





	A.	 	Landlord and Tenant have entered into that certain Lease Agreement dated as of June 21, 2000
(the “Lease”) for the leasing of certain premises consisting of approximately 91,124 rentable
square feet located at 3240 Whipple Road, Union City, California (the “Premises”) as such
Premises are more fully described in the Lease.
	 
	B.	 	Tenant has informed Landlord that the terms of Tenant’s current lease for the operations it
intends to locate in the Premises expired as of July 31, 2000 and Tenant thereafter will be
holding over at such premises without such landlord’s consent and at a rental rate greatly in
excess of the rent paid by Tenant at such premises during the term of such current lease.
Tenant has requested and Landlord has agreed, solely as an accommodation to Tenant, to modify
the process by which the Tenant Improvements are to be constructed.
	 
	C.	 	Landlord and Tenant now wish to amend the Lease upon and subject to each of the terms,
conditions and provisions set forth herein.




NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, Landlord and Tenant agree as follows:




     1. Recitals: Landlord and Tenant agree that the above recitals are true and correct
and are hereby incorporated herein as though set forth in full.



     2. Modifications to Lease:



          2.1 Phase I and Phase II Tenant Improvements; Early Occupancy. The Tenant
Improvements shall be constructed in two phases, hereinafter referred to as “Phase I” and
“Phase II”, each a “Phase” and collectively the “Phases”. The Phase I Tenant Improvements
shall consist of the Tenant Improvements to be made to the portion of the Premises intended
to be used for office space, comprising approximately 25,000 rentable square feet (the
“Phase I Premises”). The Phase II Tenant Improvements shall consist of the Tenant
Improvements to be made to the portion of the Premises intended to be used for
manufacturing and warehousing, comprising approximately 66,000 rentable square feet (the
“Phase II Premises”). The Phase I Tenant Improvements and the Phase II Tenant Improvements
shall be constructed in accordance with Exhibit B to the Lease, as amended by this
Amendment, by Technical Builders, as general contractor (the “General Contractor”), under a
contract between General Contractor and Landlord. During the Early Occupancy Period (as
defined in Section 2.3 below of this Amendment), all terms and provisions of the Lease, as
modified by this Amendment, shall apply to the Phase I Premises.




          2.2 Exhibit B. Exhibit B attached to the Lease shall be deemed to be amended
to conform to the provisions of this Amendment. Without limiting the generality of the
foregoing, the following provisions of Exhibit B are hereby amended as follows:





     Section 1. Tenant Improvements. Subject to the conditions set forth in
Exhibit B to the Lease as amended hereby, Landlord shall enter into a
construction contract with the General Contractor for the construction and
installation of the Tenant Improvements. The Tenant Improvements shall not include
any of Tenant’s personal property, trade fixtures, furnishings, equipment or similar
items. The “Phase I Tenant Improvements” shall consist of the Tenant Improvements
within the Phase I Premises, and all systems and improvements within the Premises
required for the use and occupancy of the Phase I Premises. The remainder of
the Tenant Improvements shall comprise the “Phase II Tenant Improvements”.



1.









 






     Section 3. Tenant’s Initial Plans; the Work. The Phase I Tenant
Improvements shall be built in substantial accordance with the plan(s) and scope of
work (collectively, the “Initial Phase I Plans”) dated July 19, 2000 prepared by
Legacy Partners CDS (“Architect”) and which have previously been approved by
Landlord and Tenant. The Phase II Tenant Improvements shall be built in substantial
accordance with the plan(s) and scope of work (collectively, the “Initial Phase II
Plans”) to be prepared by Architect and attached hereto as Schedule 1, as
soon as practicable, subject to approval by Landlord and Tenant. The requirements
and deadlines set forth in Exhibit B shall apply equally to the Phase I
Tenant Improvements and the Phase II Tenant Improvements, as though stated
separately in full for each of the Phase I Tenant Improvements and the Phase II
Tenant Improvements. Landlord hereby notifies Tenant that Landlord will require
Tenant to remove the Phase II Tenant Improvements from the Premises upon the
expiration or earlier termination of the Lease.




     Section 5. Performance of Work. As soon as practicable after Tenant and
Landlord initial and attach to the Lease as Exhibit B-2 a true and complete
copy of the Approved Final Drawings for each Phase, Landlord (acting on behalf of
Tenant) shall submit the Approved Final Drawings for such Phase to the governmental
authorities having rights of approval over the Work and shall apply for the
necessary approvals and building permits. Landlord and Tenant agree that the
Approved Final Drawings for the Phase I Tenant Improvements will not be put out for
bid to general contractors as was contemplated by the original Lease; rather, as
soon as practicable after Landlord or its representatives have received all
necessary approvals and building permits for the Phase I Tenant Improvements,
Landlord and Tenant will cause the General Contractor to award subcontracts for the
Phase I Tenant Improvements for the following trades on a design/build basis:
plumbing, mechanical, electrical and fire protection; and to put the Approved Final
Drawings for the Phase I Tenant Improvements out for bid to several licensed, bonded
and insured subcontractors for the remaining trades. Both Landlord and Tenant shall
have the right to approve the selected subcontractors for the Phase I Tenant
Improvements, which may or may not be the lowest bidders. Landlord shall cause the
commencement of construction by the General Contractor of the Phase I Tenant
Improvements as soon as practicable after: (1) roof and sprinklers are completed in
the shell construction and a signed-off permit is received for the shell sprinkler
work; (2) receipt of the signed construction contract between the General Contractor
and the Tenant; and (3) receipt of a building permit for the Phase I Tenant
Improvements. Except as hereinafter expressly provided to the contrary, Landlord
shall cause the performance of the Work using (except as may be stated or otherwise
shown in the Approved Final Drawings) building standard materials, quantities and
procedures then in use by Landlord (“Building Standards”). The Phase II Tenant
Improvements shall also not be put out for bid to general contractors as was
contemplated by the original Lease, but shall be contracted on a design/build basis
as described above for the Phase I Tenant Improvements, unless otherwise mutually
agreed by Landlord and Tenant. Landlord, on behalf of and for the account of Tenant,
shall maintain, and cause to be maintained, during the construction of the Tenant
Improvements, to the extent that Tenant has not procured such insurance, insurance
of the types and in the amounts specified in Exhibit B-1 attached hereto
and in Section 12 of the Lease, together with builders’ risk insurance for the
amount of the completed value of the Tenant Improvements on an all-risk
non-reporting form covering all improvements under construction, including building
materials, and other insurance in amounts and against such risks as the Landlord
shall reasonably require in connection with the Tenant Improvements.




     Section 9. Tenant Improvement Costs. Landlord will make payments to
General Contractor from the Tenant Improvement Allowance to pay for Tenant
Improvement Costs in accordance with Exhibit B. Payment of the construction
management fee (the “CM Fee”) shall be made monthly to Legacy Partners Commercial
CDS, subject to a 5% retention until completion of the punchlist items. All other
payments of the Tenant Improvement Allowance shall be by progress payments to the
General Contractor not more frequently than once per month and only after
satisfaction of Landlord’s standard tenant improvement allowance disbursement
requirements.



2.









 






     Section 10. Excess Tenant Improvement Costs. All of the Tenant
Improvement Allowance (including the Amortized Excess TI Costs) is being allocated
to the Phase I Tenant Improvements. The portion of the Excess Tenant Improvement
Costs in excess of the Amortized Excess TI Costs allocable to the Phase I Tenant
Improvements shall be paid by Tenant, in cash, to Landlord together with Tenant’s
delivery of its signed counterpart of this Amendment. The portion of the Excess
Tenant Improvement Costs in excess of the Amortized Excess TI Costs allocable to the
Phase II Tenant Improvements shall be paid by Tenant, in cash, to Landlord on or
before October 1, 2000. Interest on these funds will be paid to the Tenant at a
standard market interest rate upon Substantial Completion of the Phase II Tenant
Improvements and disbursement of all funds. Landlord shall have no obligation to
proceed with the respective Phase of the Tenant Improvements unless and until Tenant
shall have so paid the applicable portion of the Excess Tenant Improvement Costs.
Any delay in making the payments required under this Section 10 shall be deemed to
be “Tenant Delays”.



          2.3 Rent. The following is added to Section 3 of the Lease:





     3.1 Phase I Premises Rent Commencement Date: Notwithstanding the foregoing
provisions of this Section 3, Tenant’s obligation to pay Rent for the Phase I
Premises shall commence on the earlier to occur of (i) substantial completion of the
Phase I Tenant Improvements in accordance with the terms and provisions of
Exhibit B, or (ii) January 1, 2001 (the “Phase I Premises Rent Commencement
Date”). For the period commencing on the Phase I Premises Rent Commencement Date and
continuing up to the Phase II Premises Commencement Date (defined in Section 3.2
below) (the “Early Occupancy Period”), Tenant shall pay a percentage of all Rent
(excluding any utilities separately metered to the Phase I Premises) based upon the
proportion that the area of the Phase I Premises bears to the total area of the
Premises.




     3.2 Phase II Premises Rent Commencement Date: Notwithstanding the foregoing
provisions of this Section 3, Tenant’s obligation to pay Rent for the Phase II
Premises shall commence on the earlier to occur of (i) substantial completion of the
Phase II Tenant Improvements in accordance with the terms and provisions of
Exhibit B, or (ii) January 1, 2001 (the “Phase II Premises Rent Commencement
Date”). From and after the Phase II Premises Commencement Date, Tenant shall pay one
hundred percent (100%) of all Rent as specified in the Basic Lease Information.”



     3. Effect of Amendment: Except as modified herein, the terms and conditions of the
Lease shall remain unmodified and continue in full force and effect. In the event of any conflict
between the terms and conditions of the Lease and this Amendment, the terms and conditions of this
Amendment shall prevail. Tenant hereby renews its obligations to Landlord for the full, prompt and
timely payment of all rents and other sums required to be paid by Tenant during the term of the
Lease as herein modified, and for the full, prompt and timely performance of, compliance with and
observation of all the terms contained in the Lease as herein modified.



     4. Definitions: Unless otherwise defined in this Amendment, all terms not defined in
this Amendment shall have the meaning set forth in the Lease.


     5. Authority: Subject to the provisions of the Lease, this Amendment shall be binding upon
and inure to the benefit of the parties hereto, their respective heirs, legal representatives,
successors and assigns. Each party hereto and the persons signing below warrant that the person
signing below on such party’s behalf is authorized to do so and to bind such party to the terms of
this Amendment.






3.









 







IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first above
written.




	 	 	 	 	 
	Tenant:



ABAXIS, INC.,
a California corporation

 	 	 
	By:  	/s/ Robert Milder
 	 	 
	 	Name:  	Robert Milder 	 	 
	 	Title:  	COO 	 	 
	 
	By:  	/s/ Donald J. Stewart
 	 	 
	 	Name:  	Donald J. Stewart 	 	 
	 	Title:  	CFO 	 	 
	 
	Landlord:



PRINCIPAL DEVELOPMENT INVESTORS, LLC,

a Delaware limited liability company

 	 	 
	By:  	PRINCIPAL LIFE INSURANCE COMPANY, 

an Iowa corporation, its member
 	 	 
	 	 	 
	By:  	/s/ Doug Kintzie
 	 	 
	 	Name:  	Doug Kintzie 	 
	 	Title:  	Assistant Director, Commercial Real Estate 	 	 
	 	 	 
	By:  	/s/ Rod Vogel
 	 	 
	 	Name:  	Rod Vogel 	 	 
	 	Title:  	Director, Commercial Real Estate 	 	 



4.









 






	 	 	 	 	 



EXHIBIT B-1

CONSTRUCTION INSURANCE REQUIREMENTS



Before commencing work, the General Contractor shall procure and maintain at its sole cost and
expense until completion and final acceptance of the work, at least the following minimum levels of
insurance.





	A.	 	Workers’ Compensation in statutory amounts and Employers Liability Insurance in the minimum
amounts of $100,000 each accident for bodily injury by accident and $100,000 each employee for
bodily injury by disease with a $500,000 policy limit, covering each and every worker used in
connection with the contract work.
	 
	B.	 	Comprehensive General Liability Insurance on an occurrence basis including, but not limited
to, protection for Premises/Operations Liability, Broad Form Contractual Liability, Owner’s
and Contractor’s Protective, and Products/Completed Operations Liability*, in the following
minimum limits of liability.





	 	 	 

	Bodily Injury, Property Damage, and

	 	$2,000,000/each occurrence
	Personal Injury Liability

	 	$3,000,000/aggregate








 




			
	*	 	Products/Completed Operations Liability Insurance is to be provided for a
period of at least one (1) year after completion of work.






	 	 	Coverage should include protection for Explosion, Collapse and Underground Damage.
	 
	C.	 	Comprehensive Automobile Liability Insurance with the following minimum limits of liability.





	 	 	 

	Bodily Injury and Property

	 	$1,000,000/each occurrence
	Damage Liability

	 	$2,000,000/aggregate







	 	 	This insurance will apply to all owned, non-owned or hired automobiles to be used by the
General Contractor in the completion of the work.
	 
	D.	 	Umbrella Liability Insurance in a minimum amount of five million dollars ($5,000,000),
providing excess coverage on a following-form basis over the Employer’s Liability limit in
Paragraph A and the liability coverages outlined in Paragraphs B and C.
	 
	E.	 	Equipment and Installation coverages in the broadest form available covering General
Contractor’s tools and equipment and material not accepted by Tenant. Tenant will provide
Builders Risk Insurance on all accepted and installed materials.




All policies of insurance, duplicates thereof or certificates evidencing coverage shall be
delivered to Landlord prior to commencement of any work and shall name Landlord, and its partners
and lenders as additional insureds as their interests may appear. All insurance policies shall (1)
be issued by a company or companies licensed to be business in the state of California, (2) provide
that no cancellation, non-renewal or material modification shall be effective without thirty (30)
days prior written notice provided to Landlord, (3) provide no deductible greater than $15,000 per
occurrence, (4) contain a waiver to subrogation clause in favor of Landlord, and its partners and
lenders, and (5) comply with the requirements of Sections 12 of the Lease to the extent such
requirements are applicable.