FIRST AMENDMENT TO AMENDED AND RESTATED INDUSTRIAL REAL PROPERTY LEASE
Exhibit 10.2
FIRST AMENDMENT TO AMENDED AND RESTATED
INDUSTRIAL REAL PROPERTY LEASE
INDUSTRIAL REAL PROPERTY LEASE
THIS FIRST AMENDMENT TO AMENDED AND RESTATED INDUSTRIAL REAL PROPERTY LEASE (the “First
Amendment”) made as of August 1, 2007, by and between 0000 XXXXXXX XXXX LIMITED PARTNERSHIP, a
Texas limited partnership, (“Landlord”), whose address is care of First American Realty, Inc., 000
Xxxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000, successor in interest to
NATIONAL WAREHOUSE INVESTMENT COMPANY (the “Original Landlord”), and XXXXXX EQUIPMENT COMPANY, a
Delaware corporation (“Tenant”), whose address is 00000 Xxxxxxxx Xxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx
00000.
W I T
N E S S E T H:
WHEREAS, the Original Landlord and Tenant entered into that Amended and Restated Industrial
Real Property Lease dated as of August 11, 1988, (the “Lease”) covering the entire building
(consisting of approximately 235,419 square feet of rentable space) located at 0000 Xxxxxxx Xxxx,
Xxxxxx, Xxxxx, together with the parcels on which the building is located;
WHEREAS, the Lease is evidenced by a Memorandum of Lease filed in the Official records of
Denton, Texas on June 7, 1988 in Volume 2390, Page 240;
WHEREAS, the property leased to Tenant pursuant to the Lease was purchased by Landlord as of
December 7, 2004 and Landlord is now the Landlord under the Lease;
WHEREAS, Tenant extended the Lease Term in accordance with the applicable provisions of the
Lease for an initial five (5) year Extension Period ending on June 30, 2008;
WHEREAS, Landlord and Tenant have agreed to (a) provide for a second extension period of
seven (7) years commencing as July 1, 2008 at an agreed-upon Base Monthly Rent; (b) provide for
two (2) additional five (5) year Extension Periods under the Lease and (c) to make certain other
revisions to the Lease;
NOW, THEREFORE, in consideration of the agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and
Tenant agree as follows:
1. Landlord Party. Tenant acknowledges and agrees that as of December 7, 2004 all
references to Landlord in the Lease refer to 0000 Xxxxxxx Xxxx Limited Partnership, a Texas
limited partnership, whose address is care of First American Realty, Inc., 000 Xxxxxxx Xxxxxx,
X.X. Xxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000.
2. Notice Addresses. It is acknowledged and agreed that the addresses of Landlord
and Tenant for the giving of notices pursuant to Section 16.7 of the Lease shall be, until a
further change in address by written notice of a party, as follows:
| Landlord: | 0000 Xxxxxxx Xxxx Limited
Partnership c/o First American Realty, Inc. 000 Xxxxxxx Xxxxxx, X.X. Xxx 000 Xxxxxxxxx, XX 00000-0000 [Phone: (000) 000-0000] [Fax: (000) 000-0000] |
|
| Tenant: | Xxxxxx Equipment Company c/o Thermadyne Holdings Corporation Attn: General Counsel 00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000 Xx. Xxxxx, XX 00000 [Phone (000) 000-0000] [Fax: (000) 000-0000] |
3. Exercise of Second Extension Period. Tenant hereby irrevocably exercises its
option to extend the Lease Term for the Second Extension Period and Landlord acknowledges
that the Lease Term is hereby extended for the Second Extension Period.
4. Amendment of Certain Lease Provisions. The Lease is amended as follows:
(a) Section 1.1 (c) of the Lease is amended to read in its entirety as follows:
“CPI Adjustment Date. The term “CPI Adjustment Date” shall mean the
following dates: (a) that date 121 months after the first day of the first full
calendar month following the Commencement Date; (b) the first day of the First
Extension Period; (c) the first day of the Third Extension Period; and (d) the
first day of the Fourth Extension Period.”
(b) The following is added to the end of Section 3.1 of the Lease:
“Notwithstanding the foregoing, the Landlord and the Tenant agree that
the Base Monthly Rent during the Second Extension Period shall be
$87,105.00 per month.”
(c) The first sentence of Section 16.10 is hereby amended to read in its entirety as
follows:
“Provided there exists no uncured default by Tenant under this Lease, Tenant
shall have the option to extend the Lease as follows: (a) for an initial
extension period of five (5) years commencing on July 1, 2003 and ending on June
30, 2008 (the “First Extension Period”): (b) for a second extension period of
seven (7) years commencing on July 1, 2008 and ending on June 30, 2015 (the
“Second Extension Period”); (c) a third extension period of five (5) years
commencing on July 1, 2015 and ending on June 30, 2020 (the “Third Extension
Period”); and (d) a fourth extension period commencing on July 1, 2020 and ending
on June 30,
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2025 (the “Fourth Extension Period”) (the First Extension Period, the
Second Extension Period, the Third Extension Period and the Fourth Extension Period
are each referred to herein as an “Extension Period”).”
(d) Section 16.11(a) of the Lease is hereby replaced in its entirety by inserting in its
place the following Section 16.11(a) through (c):
“(a) Effective on each CPI Adjustment Date except for that CPI Adjustment Date
which is the first day of the Third Extension Period, the Base Monthly Rent shall be
the sum of (i) the Base Monthly Rent for the immediately preceding month payable
under paragraph 3.1 hereof plus (ii) the product obtained by multiplying such Base
Monthly Rent by the percentage increase in the Consumer Price Index measured from
the last month for which the Consumer Price Index is published immediately preceding
the month ending five (5) years prior to such CPI Adjustment Date to the last month
for which the Consumer Price Index is published immediately preceding the CPI
Adjustment Date in question.
(b) Effective on the CPI Adjustment Date which is the first day of the Third
Extension Period, the Base Monthly Rent shall be the sum of (i) the Base Monthly
Rent for the immediately preceding month payable under paragraph 3.1 hereof plus
(ii) the product obtained by multiplying such Base Monthly Rent by the percentage
increase in the Consumer Price Index measured from the last month for which the
Consumer Price Index is published immediately preceding the commencement of the
Second Extension Period to the last month for which the Consumer Price Index is
published immediately preceding the first day of the Third Extension Period.
(c) Notwithstanding subparagraphs (a) and (b) above, in no event shall the Base
Monthly Rent (i) after the CPI Adjustment Date applicable to the First Extension
Period be less than one hundred twenty percent (120%) nor more than one hundred
twenty-five percent (125%) of the Base Monthly Rent for the month immediately
preceding each such CPI Adjustment Date, (ii) with respect to the CPI Adjustment
Date applicable to the Third Extension Period only, in no event shall the Base
Monthly Rent be less than one hundred twenty-one percent (121%) nor more than one
hundred twenty-eight percent (128%) of the Base Monthly Rent for the month
immediately preceding such CPI Adjustment Date and, (iii) with respect to the Fourth
Extension Period only, in no event shall the Monthly Base Rent be less than one
hundred fifteen percent (115%) nor more than one hundred twenty percent (120%) of
the Base Monthly Rental for the month immediately preceding such CPI Adjustment
Date.”
5. Guarantor’s Consent and Affirmation. Thermadyne Holdings Corporation hereby
consents to the foregoing and affirms that it is the guarantor of the Lease, as amended hereby,
pursuant to an Amended and Restated Continuing Lease guaranty of Palco Acquisition Company dated
as of August 11, 1988 as successor-in-interest to Palco Acquisition Company.
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6. Authority of Parties. By executing this First Amendment, Landlord and Tenant
represent to each other that: (i) it is authorized to enter into, execute and deliver this First
Amendment and perform its obligations hereunder; (ii) this First Amendment is binding and
enforceable in accordance with its terms; (iii) the person signing on its behalf is duly authorized
to execute this First Amendment and (iv) no other signatures or approvals are necessary in order to
make all of its representations contained in this section true and correct
7. Capitalized Terms. All capitalized terms not otherwise defined herein shall have
the same meanings set forth in the Lease.
8. Entire Agreement. The Lease, as hereby amended, shall remain in full force and
effect pursuant to its terms and provisions as set forth herein.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the parties hereto has caused this First Amendment to Amended
and Restated Industrial Real Property Lease to be executed by its duly authorized
representative as a sealed instrument as of the day and year first above written.
| 0000 XXXXXXX XXXX LIMITED PARTNERSHIP, | ||||||
| a Texas limited partnership | ||||||
| By: | 0000 XXXXXXX XXXX GP, LLC, | |||||
| Its General Partner | ||||||
| By: | FIRST AMERICAN REALTY, INC., | |||||
| Its Manager | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx,
|
|||||
| President and Treasurer | ||||||
| XXXXXX EQUIPMENT COMPANY, | ||||||
| a Delaware corporation | ||||||
| By: | /s/ Xxxx X. Xxxxxx
|
|||||
| Chief Executive Officer | ||||||
| THERMADYNE HOLDINGS
CORPORATION, a Delaware corporation |
||||||
| By: | /s/ Xxxx X. Xxxxxx
|
|||||
| Chairman and Chief Executive Officer | ||||||
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