EXHIBIT 10.4(a)
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is made and entered into
effective as of the 1st day of February, 2001 by and between MP 437 Tower CS,
Inc., by RREEF Management Company ("Landlord") and PARTYLITE WORLDWIDE, INC.
("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord's predecessor in interest Xxxxx Stream I Development
Company ("Xxxxx Stream") and Tenant's predecessor-in-interest, PartyLite Gifts,
Inc. ("PartyLite Gifts"), entered into that certain lease agreement dated June
20, 1997 (the "Lease"), pursuant to which Xxxxx Stream leased to PartyLite Gifts
space at Building #1, which is located at Schmale and Xxxxx Xxxxx, Xxxxx Xxxxxx,
Xxxxxxxx as more particularly set forth in the Lease; and
WHEREAS, Landlord and Tenant desire to amend the Lease according to the
terms hereof to account for the succession of the tenancy from PartyLite Gifts
to Tenant as part of a corporate reorganization (as amended by this Amendment,
the Lease is hereinafter referred to as the "Lease");
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. CONTROLLING LANGUAGE. 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 Lease, the terms and provisions of this
Amendment shall govern and control; in all other respects, the Lease shall
remain unmodified and in full force and effect.
2. TENANT. Effective as of the date hereof, Tenant (PartyLite Worldwide,
Inc.) shall be the tenant under the Lease and shall be responsible for all
obligations of PartyLite Gifts under the Lease and shall be entitled to all of
PartyLite Gifts' rights under the Lease. Notwithstanding anything contained to
the contrary in the Lease, Landlord hereby releases PartyLite Gifts from all
future obligations arising under the Lease and agrees to look solely to Tenant
(PartyLite Worldwide, Inc.) and Blyth, Inc. (formerly known as Blyth Industries,
Inc.) pursuant to that certain Guaranty dated as of June 20, 1997.
3. LANDLORD'S REPRESENTATIONS AND WARRANTIES. Landlord has full power to
execute and deliver this Amendment and to consummate each and all of the
transactions contemplated hereby; and that the person(s) executing this
Amendment on behalf of Landlord are fully authorized to do so.
4. TENANT'S REPRESENTATIONS AND WARRANTIES. Tenant has full power to
execute and deliver this Amendment and to consummate each and all of the
transactions contemplated hereby; and that the person(s) executing this
Amendment on behalf of Tenant are fully authorized to do so.
5. MODIFICATIONS. No modification, amendment, discharge or change of this
Amendment shall be valid unless the same is in writing and signed by the party
against which the enforcement of such modification, amendment, discharge or
change is sought.
6. REAL ESTATE BROKER. Both parties represent to each other that they
have not dealt with any real estate broker with respect to this Amendment and to
their knowledge no broker initiated or participated in the negotiations of this
Amendment or is entitled to any commission in connection with the Amendment.
Both parties agree to indemnify and hold the other harmless from all claims from
any real estate broker claiming through the indemnifying party for commission or
fees in connection with this Amendment.
7. MISCELLANEOUS.
A. Landlord and Tenant hereby agree that (i) this Amendment is
incorporated into and made a part of the Lease, (ii) any and all references to
the Lease hereinafter shall include this Amendment, (iii) 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.
B. All terms capitalized but not defined herein shall have the same
meaning ascribed to such terms in the Lease.
C. This Amendment shall be governed by and construed under the laws
of the State of Illinois.
D. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
E. Redress for any claim against Landlord under this Amendment shall
be limited to and enforceable only against and to the extent of Landlord's
interest in the Building. The obligations of Landlord under this Amendment are
not intended to and shall be personally binding on, nor shall any resort be had
to the private properties of, any of its trustees or board of directors and
officers, as the case may be, its investment manager, the general partners
thereof, or any beneficiaries, stockholders, employees, or agents of Landlord or
the investment manager.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment as of
the date first written above.
LANDLORD: TENANT:
MP 437 TOWER CS, INC. PARTYLITE WORLDWIDE, INC.
BY: RREEF MANAGEMENT COMPANY
BY: /s/ X.X. XXXX BY: /s/ XXXXX X. XXXXX
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TITLE: V.P., DISTRICT MANAGER TITLE: PRESIDENT
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CONSENT TO FIRST AMENDMENT TO LEASE
The undersigned, as guarantor of the tenant's obligations under the Lease
pursuant to that certain Guaranty dated as of June 20, 1997, hereby consents to
the foregoing amendment and agrees that the Guaranty remains in full force and
effect.
GUARANTOR:
BLYTH, INC. (FORMERLY KNOWN AS BLYTH
INDUSTRIES, INC.)
BY: /s/ XXXXXXX X. XXXXXXXX
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TITLE: VICE PRESIDENT
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ASSIGNMENT AND ASSUMPTION AGREEMENT
BY AND BETWEEN PARTYLITE GIFTS, INC.
AND PARTYLITE WORLDWIDE, INC.
(000 XXXXX XXXXXXXXX, XXXXX XXXXXX, XXXXXXXX)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment") dated as
of January 31, 2001 is entered into by and between PARTYLITE GIFTS, INC.
("Assignor") and PARTYLITE WORLDWIDE, INC. ("Assignee").
RECITALS
WHEREAS, Assignor, as tenant, and Xxxxx Stream I Development Company
("Landlord"), as landlord, entered into that certain lease agreement dated June
20, 1997 (the "Lease"), pursuant to which Landlord leased to Assignor space at
Building #1, which is located at Schmale and Xxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxxx
as more particularly set forth in the Lease; and
WHEREAS, Assignor desires to assign to Assignee all of Assignor's
right, title and interest in and to the Lease, and Assignee desires to accept
such assignment and, subject to the terms and provisions hereof, to assume the
obligations of Assignor thereunder.
NOW THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and agreed, the parties agree as
follows:
1. ASSIGNMENT AND ASSUMPTION. Assignor hereby assigns all of
Assignor's right, title and interest in and to the Lease to Assignee. Assignee
hereby accepts the foregoing Assignment and, subject to the terms and provisions
hereof, assumes all of Assignor's obligations under the Lease. Assignor shall
indemnify, defend and hold Assignee harmless from any and all claims, loss,
cost, damage, liability or expense whatsoever, including reasonable attorneys'
fees, incurred by or which may be asserted against Assignee arising out of a
failure or alleged failure of Assignor to comply with or perform under the Lease
prior to the date hereof. Assignee shall indemnify, defend and hold Assignor
harmless from any and all claims, loss, cost, damage, liability or expense
whatsoever, including reasonable attorneys' fees, incurred by or which may be
asserted against Assignor arising out of a failure or alleged failure of
Assignee to comply with or perform under the Lease after the date hereof.
2. FURTHER ASSURANCES. Assignor shall execute or cause to be
executed such additional instruments and shall do or cause to be done such
further acts, as Assignee may reasonably request, in order to permit Assignee to
maintain the assignment made to Assignee by this Assignment.
3. GOVERNING LAW. This Assignment and the rights and obligations of
the parties hereunder shall be construed and interpreted in accordance with the
laws of the State of Illinois.
4. MODIFICATIONS. This Assignment shall not be amended, modified or
supplemented without the written agreement of Assignor and Assignee at the time
of such amendment, modification or supplement.
5. BENEFIT. This Assignment is binding upon Assignor, its successors
and assigns and the rights of Assignee under this Assignment shall inure to the
benefit of Assignee, and its successors and assigns.
6. SEVERABILITY. The invalidity or unenforceability of any
particular provision of this Assignment shall not affect the other provisions,
and this Assignment shall be construed in all respects as if such invalid or
unenforceable provision had not been contained herein.
7. COUNTERPARTS. This Assignment may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment as of the day and year first above written.
ASSIGNOR: ASSIGNEE:
PARTYLITE GIFTS, INC. PARTYLITE WORLDWIDE, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
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Its: President Its: President
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