SECOND AMENDMENT TO SUBLEASE AGREEMENT
Exhibit
10.1
SECOND
AMENDMENT TO SUBLEASE AGREEMENT
THIS SECOND AMENDMENT TO SUBLEASE
AGREEMENT (this “Second
Amendment”) is made and entered into as of April 1, 2010, by and among
THE XXXXX X. XXXXXX TRUST and THE XXXX XXXXXX MANAGEMENT TRUST (together, “Sublessor”), and SUPERIOR
INDUSTRIES INTERNATIONAL, INC., a California corporation ( “Sublessee”) with respect to
the Sublease described below.
RECITALS
WHEREAS, Xxxxx Xxxxxx, an individual
(“Xxxxxx”), and the City
of Los Angeles (“Master
Lessor”) entered into Lease No. VNA-2321, dated February 11, 1976, as
amended by those certain amendments dated April 28, 1976, December 6, 1979, and
May 23, 2007, respectively (the “Master Lease”), which Master Lease
affects particular property adjacent to Van Nuys Airport, as more specifically
described therein (the “Leased
Premises”);
WHEREAS,
Xxxxxx sublet the Leased Premises to Sublessee pursuant to that certain Sublease
Agreement by and between Xxxxxx and Sublessee, dated March 2, 1976, as amended
by that certain letter agreement dated May 8, 2008 (as previously amended, the
“Sublease”);
WHEREAS, prior to the first amendment
to the Sublease on May 8, 2008, Xxxxxx assigned equal interests in the Master
Lease to himself and his spouse and thereafter both he and his spouse
transferred their respective interests in the Master Lease to those certain
trusts specified above comprising Sublessor;
WHEREAS, Sublessee no longer needs or
desires to occupy or possess a leasehold interest in the entirety of the Leased
Premises and the parties hereto desire to amend the Sublease in order to allow
Sublessor to sublease a portion of the Leased Premises, which is no longer
needed or desired by Sublessee, to Munchkin, Inc. (“Munchkin”), under the terms of
that certain Standard Industrial/Commercial Single-Tenant Lease - Gross by and
between Sublessor and Munchkin, dated September 5, 2009 (the “Munchkin Sublease”), and
commencing as of the commencement date set forth therein, which is currently set
for April 1, 2010, but which may be modified by Sublessor and
Munchkin. Subject to prior written consent from Master Lessor,
the commencement date of this Second Amendment (the “Effective Date”) shall be
April 1, 2010.
NOW, THEREFORE, the parties hereto, for
and in consideration of the terms, covenants and conditions hereinafter
contained to be kept and performed by the respective parties, do hereby agree
that the Sublease is hereby amended as follows:
Section
1. Paragraph 1.1 of the
Sublease is hereby modified, effective as of the Effective Date, by deleting
said paragraph in its entirety and inserting the following paragraph in place
thereof:
“1.1 Subject
to the terms and conditions of the Master Lease, Sublessor leases to Sublessee,
and Sublessee leases from Sublessor, a portion of certain real property
described in Exhibit “A” to the Master Lease (the “Master Lease Property”), which
portion is highlighted and identified on the attached Exhibit 1, including
the buildings and improvements constructed thereon (the “Premises”). The
Premises specifically excludes the real property, and any buildings and
improvements situated thereon (the “Munchkin Sublease Property”),
that is the subject of the Standard Industrial/Commercial Single-Tenant Lease -
Gross by and between Sublessor and Munchkin, Inc., dated September 5, 2009 (the
“Munchkin
Sublease”). Sublessor and Sublessee agree and acknowledge that
from and after the Effective Date, Sublessee shall no longer have any
liabilities from, responsibilities or other obligations for, rights to, or
interests in, the Munchkin Sublease Property, and any claims, damages, demands,
costs, losses and/or the like arising from events or activities involving the
Munchkin Sublease Property from and after the Effective Date shall not require
the participation of or contribution by Sublessee or any of its officers,
employees, contractors, affiliates or assignees. Nothing herein shall
be construed as a release of Sublessee for any obligations as to the Munchkin
Sublease Property arising prior to the Effective Date.”
Section
2. Paragraph 2 of the
Sublease is hereby modified, effective as of the Effective Date, by deleting
said paragraph in its entirety and inserting the following paragraph in place
thereof:
“2. Term.
The term
of this Sublease commenced concurrently with the commencement of the Master
Lease, and shall continue in full force and effect until and through March 31,
2015. Notwithstanding any provision of this Sublease to the contrary,
at any time prior to March 31, 2015, Sublessee shall have the right to extend
the term of this Sublease for an additional 5-year period, under the same terms
as provided herein or as the same may be modified by mutual written consent of
Sublessor and Sublessee from time to time hereafter (the “First Option
Period”). At any time after the commencement of and prior to
the expiration of the First Option Period, Sublessee shall have the right to
further extend the Sublease term for an additional period of 5 years and 9
months, under the then existing terms of this Sublease (the “Second Option
Period”). Notwithstanding the foregoing, no extension of this
Sublease may continue beyond the end of the term of the Master Lease, as the
Master Lease may be extended. Sublessor has provided Sublessee with
the right to extend the term of this Sublease as consideration for the mutual
promises and covenants contained herein.”
Section
3. Effective
as of the Effective Date, the Basic Rent due pursuant to Paragraph 4.3 of the
Sublease shall be Four Hundred Twenty Four Thousand Six Hundred Ninety Two
Dollars ($424,692) per year, payable in equal monthly installments in advance of
the first day of each and every calendar month.
Section
4. Paragraph 4.4 of the
Sublease is hereby modified, effective as of the Effective Date, by deleting
said paragraph in its entirety and inserting the following paragraph in place
thereof:
“4.4. Increased
Rent. For the term of this Sublease, and any extension
and renewal of this Sublease, the Basic Rent set forth in Paragraph 4.3 of this
Sublease shall be increased or decreased, as appropriate, by an amount equal to
the sum of (i) eight percent (8%) of the amount of any rental increases or
decreases, as applicable, imposed on Sublessor pursuant to Section 4 of the
Master Lease, and (ii) the Cost of Living Increase (as determined in Paragraph 4.6 of this
Sublease) attributable to that portion of the Basic Rent under this Sublease
properly allocable to the improvements. For the purposes of
this Paragraph
4.4, “Basic Rent under this Sublease properly allocable to the
improvements” shall be determined by subtracting from the total Basic Rent for
any given year, eight percent (8%) of the total rent payable by the Sublessor
(as lessee) to the City of Los Angeles (as lessor) under Section 4 of the
Master Lease for such year.”
Section
5. Paragraph 4.5 of the
Sublease is hereby modified, effective as of the Effective Date, by deleting
said paragraph in its entirety and inserting the following paragraphs in place
thereof:
“4.5 This
Sublease is what is commonly called a “net lease,” it being understood that
Sublessor shall receive the rent set forth in Paragraphs 4.1, 4.2, 4.3 and 4.4 (including the
Cost of Living Increase determined under Paragraph 4.6), free
and clear of any and all other impositions, taxes, liens, charges or expenses of
any nature whatsoever in connection with Sublessee’s occupancy and operation of
the Premises. In addition to the rent reserved by Paragraphs 4.1, 4.2, 4.3 and 4.4 (including the
Cost of Living Increase determined under Paragraph 4.6),
Sublessee shall pay to Sublessor as additional rent the Sublessee’s Share of all
Common Area Operating Expenses during each calendar year of the term of this
Sublease, in accordance with the following provisions:
(a) “Sublessee’s Share” means the
percentage of the Master Lease Property attributable to the Premises which, as
of the Effective Date, shall be and remain eight percent (8%), regardless of
whether or not the portions of the Master Lease Property outside of the Premises
are fully or partially leased to Munchkin or any other party or parties at any
or all times prior to the termination of the Sublease.
(b) “Common Area Operating
Expenses” are defined, for purposes of this Sublease, as all costs
incurred by Sublessor relating to the control and operation of the Leased
Premises, including, but not limited to, the following:
(i) The
operation, repair and maintenance, in neat, clean, good order and condition, or
otherwise as required under the terms of the Master Lease, and, if necessary,
the replacement of the following:
(aa) The
Common Area (as defined below) and Common Area improvements, including parking
areas, loading and unloading areas, trash areas, roadways, parkways, walkways,
driveways, landscaped areas, bumpers, irrigation systems, Common Area lighting
facilities, fences and gates, elevators, roofs, and roof drainage
systems. The term “Common Area,” as used in this
Sublease, means all areas and facilities outside of the Premises and within the
exterior boundary line of the Master Lease Property (as used in this Paragraph 4.5, the
term “Master Lease Property” shall include any and all buildings and
improvements located thereon), as well as the interior utility raceways and
installations within the Master Lease Property, but only to the extent that the
same are provided for the general, non-exclusive use of Sublessee and the other
tenants or subtenants, including Munchkin, of the Master Lease Property and
their respective employees, suppliers, shippers, customers, contractors and
invitees, including any applicable parking areas, loading and unloading areas,
trash areas, roadways, walkways, driveways and landscaped
areas. Areas, improvements, facilities, systems and the like
which are exclusively possessed and/or utilized by Sublessee or by any other
tenant or subtenant, including Munchkin, of the Master Lease Property, shall not
be included within the definition of Common Area as used in this
Sublease.
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(bb)
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Any
fire sprinkler systems.
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(ii) The
cost of water, gas, electricity, heat, power and telephone service to the Common
Area.
(iii) If
provided by Sublessor, the cost of trash disposal, pest control services,
property management, security services, owners’ association dues and fees and
the cost of any environmental inspections.
(iv) Reserves
set aside for maintenance, repair and/or replacement of Common Area improvements
and equipment.
(v) Real
Property Taxes, which shall mean, for the purposes of this Sublease, any form of
assessment; real estate, general, special, ordinary or extraordinary, or rental
levy or tax (other than inheritance, personal income or estate taxes);
improvement bond; and/or license fee imposed upon or levied against any legal or
equitable interest of Sublessor in the Master Lease Property or under the Master
Lease, Sublessor’s right to other income therefrom, and/or Sublessor’s business
of leasing, by any authority having the direct or indirect power to tax and
where the funds are generated with reference to the Master Lease Property
address and where the proceeds so generated are to be applied by the city,
county or other local taxing authority of a jurisdiction within which the Master
Lease Property is located. The term “Real Property Taxes” shall
also include any tax, fee, levy, assessment or charge, or any increase therein
imposed by reason of events occurring during the term of this Sublease, but
specifically excluding supplemental real property taxes assessed as a result of
(1) a change in the ownership of the Master Lease Property, and/or (2) a change
in the improvements thereon.
(vi) The
cost of the premiums for any insurance required to be maintained by Sublessor
under the Master Lease, and which are actually maintained by
Sublessor.
(vii) Any
deductible portion of an insured loss concerning the Common Areas of the Master
Lease Property.
(viii) Auditors’,
accountants’ and attorneys’ fees and costs related to the operation,
maintenance, repair and replacement of the Master Lease Property.
(ix) The
cost of any other services to be provided by Sublessor, under the Master Lease
or otherwise, which can be reasonably and customarily described as a Common Area
Operating Expense.
(b) Any
Common Area Operating Expenses and Real Property Taxes that are specifically
attributable to the Premises or any other portion of the Master Lease Property,
or to the operation, repair and maintenance thereof, shall be allocated entirely
to the Premises or any other applicable portion of the Master Lease
Property. However, any Common Area Operating Expenses and Real
Property Taxes not specifically attributable to any particular portion of the
Master Lease Property, including the Premises, shall be equitably allocated by
Sublessor to the entire Master Lease Property.
(c) Sublessee’s
share of the Common Area Operating Expenses is payable monthly on the same terms
as the Basic Rent set forth in Paragraph 4.3 of this
Sublease. The amount of such payments may be based on Sublessor’s
estimate of the annual Common Area Operating Expenses. Within 60
calendar days after a written request by Sublessee (but not more than twice a
year), Sublessor shall deliver to Sublessee a reasonably detailed statement
showing Sublessee’s share of the actual Common Area Operating Expenses incurred
during the previous year. If Sublessee’s payments during such year
were less than the actual Sublessee’s Share of Common Area Operating Expenses,
Sublessee shall pay to Sublessor the amount of the deficiency within 10 calendar
days after delivery by Sublessor to Sublessee of such statement. If
Sublessee’s payments during such year exceed the actual Sublessee’s Share of
Common Area Operating Expenses, Sublessor shall credit the amount of such
overpayment against Sublessee’s future payments under this Paragraph
4.5.
(d) Common
Area Operating Expenses shall not include any expenses paid by any tenant of the
Master Lease Property directly to third parties, or with respect to which
Sublessor is otherwise reimbursed by any third party, other tenant, or insurance
proceeds.”
Notwithstanding
any provision of the above revised Paragraph 4.5 to the
contrary, Sublessee shall be solely responsible for the landscape, hardscape and
related gardening and maintenance costs pertaining solely to the landscape and
hardscape (but not the parking lots and driveways) located immediately adjacent
to the office building situated on the Premises, as highlighted and identified
on the attached Exhibit 1 (the “Landscape Area”).
Section
6. Paragraph 6 of the
Sublease is hereby modified, effective as of the Effective Date, by deleting
said paragraph in its entirety and inserting the following paragraph in place
thereof:
“6. Utilities to
Premises.
Sublessee
agrees to and shall pay, prior to delinquency, all charges for gas, water,
electricity, lights, heat, power, telephone and all other utilities that are
provided exclusively to the Premises and/or are separately metered to the
Premises. In the event that any utilities provided to or consumed by
Munchkin are billed to Sublessee, then Sublessee may xxxx Munchkin for its full
share of the cost of such utilities consumed by Munchkin. If and to
the extent that Munchkin does not pay its full share of such utilities within 30
days after receiving Sublessee’s invoice therefor, then Sublessee may offset
such expense against its rent due under this Sublease, notwithstanding anything
in this Sublease to the contrary.”
Section
7. Sublessee
agrees to construct the tenant improvements described in items 1 through 19 of
paragraph 53.D. of the Munchkin Sublease, at its sole cost and
expense.
Section
8. Paragraph 17 of the
Sublease is hereby modified by deleting said paragraph in its entirety and
inserting the following paragraph in place thereof:
“17. Notices.
Any and
all written notice to be given to Sublessor hereunder shall be addressed to the
Sublessor at 0000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000, and any and all
notices to be given to Sublessee shall be addressed to Sublessee at the Premises
or at such other address as Sublessee may designate in writing. All
notices shall be hand delivered or given by depositing the same in the United
States mail, properly addressed as aforesaid, and with postage prepaid,
registered or certified, and shall be deemed complete four (4) days after
deposit.”
Section
9. Subject
to the provisions of the Master Lease and the Munchkin Lease, Sublessee shall
have the right to install monument and building signage in accordance with
governing authority approval to be obtained by Sublessee and subject to the
approval of Master Lessor.
Section
10. Except
as specifically provided herein, this Second Amendment shall not in any manner,
alter, change, modify, or affect any of the rights, privileges, duties, or
obligations of either of the parties hereto under or by reason of said Sublease,
and except as expressly amended herein, all of the terms, covenants, and
conditions of said Sublease shall remain in full force and effect.
[SIGNATURES
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IN WITNESS WHEREOF, the parties have
caused this Second Amendment to be executed as of the day and year first
hereinabove written.
Sublessor: THE
XXXXX X. XXXXXX TRUST
By: /s/ Xxxxx X.
Xxxxxx
Name: Xxxxx
X. Xxxxxx
Its: Trustee
THE XXXX XXXXXX MANAGEMENT
TRUST
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Its: Trustee
Sublessee: SUPERIOR
INDUSTRIES INTERNATIONAL, INC.,
a California corporation
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Its: Chairman
of the Board,
CEO and
President
Exhibit
1
Site Plan
Depicting the Premises and the Landscape Area
[See
attached]
Exhibit
1
