FIRST AMENDMENT TO INDUSTRIAL BUILDING LEASE
FIRST
AMENDMENT TO INDUSTRIAL BUILDING LEASE
THIS
FIRST AMENDMENT TO INDUSTRIAL BUILDING LEASE (this “Amendment”) is made
and entered into as of this 25th day of April, 2007, by and between WEST 55TH
STREET INVESTORS LLC, a Delaware limited liability company (“Landlord”)
and XXXXX XXXXXXX ELECTRONICS CORPORATION, an Illinois corporation
(“Tenant”).
W
I T N E S S E T H:
WHEREAS,
Landlord's predecessor-in-interest, Centerpoint Realty Services Corporation,
and
Tenant entered into that certain Industrial Building Lease dated February 7,
2001 (the “Current Lease”), pursuant to which Tenant leases certain
premises (the “Premises”) consisting of 104,110 square feet in the
building located at 0000 Xxxx 00xx Xxxxxx, Xxxxx X, XxXxxx, Xxxxxxxx (the
“Building”), as more particularly set forth in the Current Lease;
and
WHEREAS,
Landlord and Tenant desire to amend the Current Lease according to the terms
hereof to, among other things, extend the Term of the Lease.
NOW
THEREFORE, for and in consideration of the covenants and agreements hereinafter
set forth, and also in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt and sufficiency of which
is
hereby acknowledged, Landlord and Tenant hereby mutually agree as
follows:
1. Controlling
Language; Definitions; Deletions. Insofar as the specific terms
and provisions of this Amendment purport to amend or modify or are in conflict
with the specific terms, provisions and exhibits of the Current Lease, the
terms
and provisions of this Amendment shall govern and control; in all other
respects, the terms, provisions and exhibits of the Current Lease shall remain
unmodified in full force and effect. Capitalized terms used herein
without definition shall have the meaning ascribed to such terms in the Current
Lease.
2. Term
of the Lease. The Term of the Lease is hereby extended for a
period of five (5) years beginning on May 1, 2008 and ending on April 30, 2013,
inclusive (the “Renewal Term”), on all the terms, covenants and
conditions of the Current Lease, except as hereinafter set forth, and any
reference in the Current Lease to the Term of the Lease shall be deemed to
include the Renewal Term and apply thereto unless it is expressly provided
otherwise. Likewise, any reference in the Current Lease to the
Termination Date of the Lease shall be deemed to mean April 30,
2013.
3. Rent. Tenant
agrees to pay as rent to Landlord, the aggregate of the following, all of which
are rent reserved under the Lease:
A. Monthly
Base Rent. Commencing on the date this Amendment is
fully-executed, Tenant shall pay Landlord Base Rent for the Premises pursuant
to
the following schedule:
|
Period
|
Annual
Base
Rent Per R.S.F.
|
Total
Annual
Base
Rent
|
Monthly
Installment
|
|
Date
this Amendment is fully-executed through April 30, 2008 (subject
to Base
Rent abatement provided below)
|
$4.50
|
$468,495.00
|
$39,041.25
|
|
May
1, 2008 through April 30, 2009
|
$4.61
|
$479,947.10
|
$39,995.59
|
|
May
1, 2009 through April 30, 2010
|
$4.73
|
$492,440.30
|
$41,036.69
|
|
May
1, 2010 through April 30, 2011
|
$4.85
|
$504,933.50
|
$42,077.79
|
|
May
1, 2011 through April 30, 2012
|
$4.97
|
$517,426.70
|
$43,118.89
|
|
May
1, 2012 through April 30, 2013
|
$5.09
|
$529,919.90
|
$44,159.99
|
B. Rent
Adjustments. Commencing on the date this Amendment is
fully-executed and continuing during the Renewal Term, Tenant shall continue
to
pay Rent Adjustments in accordance with the terms of the Current
Lease.
C. Base
Rent Abatement. So long as no event of default is continuing
under the Lease, Base Rent shall xxxxx for the first three (3) months after
the
date this Amendment is fully-executed.
4. Security
Deposit. As of the date this Amendment if fully-executed, the
security deposit (which may be in the form of a letter of credit as specified
in
Section 31.2 of the Current Lease) shall be reduced to $150,000.00.
5. Condition
of Premises. Other than as provided below, Landlord is leasing
the Premises to Tenant during the Renewal Term in its “as is” condition, without
any promise of Landlord to alter, remodel or improve the Premises and without
any representations or warranties made by Landlord or its agents to Tenant
or
Tenant’s agents with respect to the condition of the Premises including, without
limitation, any express or implied warranties of merchantability, fitness or
habitability, and Tenant has not relied on any such representations or
warranties.
6. Termination
Option. (A) Subject to the satisfaction of the conditions set
forth in this paragraph, Tenant shall have one option to terminate the Lease
in
its entirety (the “Termination Option”) effective as of April 30, 2009
(the “Early Termination Date”) by providing written notice to Landlord
(the “Termination Notice”) no later than April 30, 2008. As a
condition to Tenant's ability to exercise the Termination Option: (i) a law
imposing a tax on gross receipts or other tax not based upon Tenant’s net income
must have been enacted by the State of Illinois after the date of this Amendment
and before April 30, 2008; (ii) according to Tenant’s reasonable projections,
such tax would on an annual basis cost Tenant $150,000.00 or more; and (iii)
Tenant provides Landlord with reasonable documentation or other information
to
substantiate such reasonable projections.
A. If
Tenant delivers the Termination Notice in accordance with the terms and
conditions of this Paragraph 6, timely pays the Termination Fee (defined below)
as provided in Xxxxxxxxx 0X hereof, and the condition set forth above is
satisfied, then as of the Early Termination Date, the Lease shall terminate,
and
Tenant shall be and remain liable for the payment to Landlord of all Rent and
other sums due and/or accrued, and for the performance and keeping of all the
covenants, agreements and obligations under the Lease to be performed, paid
and
kept by Tenant prior to such Early Termination Date. Following
Tenant's exercise of its Termination Option, if Tenant fails to vacate the
Premises and surrender possession thereof to Landlord in accordance with the
terms of the Lease on or prior to the Early Termination Date, such failure
shall
be treated as a holding over by Tenant and Landlord shall be entitled to all
of
its remedies under the Lease as set forth in the holdover section hereof until
Tenant vacates.
B. Except
for Tenant’s obligation to pay Rent and other charges due under the terms of the
Lease through the Early Termination Date, Tenant’s sole monetary obligation with
respect to such early termination shall be to pay Landlord a termination fee
equal to $468,495.00 (the “Termination Fee”). Tenant shall
pay: (i) $312,633.33 of the Termination Fee with the delivery of the Termination
Notice, and (ii) $155,861.67 of the Termination Fee at least thirty (30) days
in
advance of the Early Termination Date. If Tenant fails to timely pay
the Termination Fee, then at Landlord's sole election, the exercise of the
Termination Option shall be null and void and the Lease shall continue in full
force and effect as if Tenant had not exercised the Termination
Option. Acceptance by Landlord of the Termination Fee shall
constitute a release of the Tenant from any and all of its obligations under
the
Lease accruing after the Early Termination Date, except any obligations which
by
their terms are intended to survive any early termination or expiration of
the
Lease (including, without limitation, the reconciliation of any Rent
Adjustments).
7. Deletion
of Certain Provisions. As of the date of this Amendment, Article
XXXIII (Renewal Option) and Article XXXV (Right of First Opportunity) are hereby
deleted in their entirety and are of no further force or effect.
8. Real
Estate Broker. Tenant and Landlord each represent to the other
that it has not dealt with any real estate broker with respect to this Amendment
except for Nicolson Porter & List Inc. (“Nicolson”) and no other
broker is in any way entitled to any broker’s fee or other payment in connection
with this Amendment based upon its acts. Landlord, at its sole cost
and expense, shall pay any and all fees and compensation due and payable to
Nicolson with respect to this Amendment, and shall indemnify and defend Tenant
against any claims by Nicolson for any payment in connection with this
Amendment. Tenant shall indemnify and defend Landlord against any
claims by any other broker or third party claiming through Tenant for any
payment of any kind in connection with this Amendment arising from a breach
by
Tenant of the foregoing representation. Landlord shall indemnify and
defend Tenant against any claims by any other broker or third party claiming
through Landlord for any payment of any kind in connection with this Amendment
arising from a breach by Landlord of the foregoing representation.
9. Miscellaneous. Landlord
and Tenant hereby agree that (a) this Amendment is incorporated into and made
a
part of the Lease, (b) any and all references to the Lease hereinafter shall
include this Amendment, and (c) the Lease and all terms, conditions and
provisions of the Lease are in full force and effect as of the date hereof,
except as expressly modified and amended hereinabove. This Amendment shall
be
governed by and construed under the laws of the State of Illinois, without
regard to the conflicts of laws principles thereof.
[Signatures
On The Following Page]
2
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first
above written.
LANDLORD:
WEST
55TH
STREET INVESTORS LLC, a Delaware limited liability company
|
By:
|
UBS
Realty Investors, LLC, a Massachusetts limited liability company,
its
Manager
|
|
|
By: /s/
J. Xxxxxxx Xxxxxxx
|
||
|
Name:
J. Xxxxxxx Xxxxxxx
|
||
|
Title:
Director
|
TENANT:
XXXXX
XXXXXXX ELECTRONICS CORPORATION, an Illinois corporation
|
By:
|
/s/
Xxxxx X. Xxxxx
|
|
|
Name:
|
Xxxxx.
X. Xxxxx
|
|
|
Title:
|
VP,
Secretary, Treasurer & CFO
|
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