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EXHIBIT 10.21
FOURTH AMENDMENT TO LEASE
THIS FOURTH AMENDMENT TO LEASE (this "Amendment") is made and entered into
as of February 16, 2001, by and between TIAA REALTY INC., a Delaware corporation
(the "Landlord") and FLORSHEIM GROUP INC., a Delaware corporation (the
"Tenant").
RECITALS
WHEREAS, pursuant to that certain Lease by and between Landlord's
predecessor-in-interest, Teachers Insurance and Annuity Association of America,
and Tenant's predecessor-in-interest, The Florsheim Shoe Company, dated
September 6, 1996, as amended by that certain First Amendment to Lease dated as
of December 31, 1996, that certain Second Amendment to Lease dated February 12,
1999 and that certain Third Amendment to Lease dated in March of 2000 (as
amended, the "Lease"), Tenant is presently occupying certain premises (the
"Premises") in that certain building commonly located at 000 X. XxXxxxx Xxxxxx
in Chicago, Illinois (the "Building");
WHEREAS, Tenant desires to permanently relinquish to Landlord (i) a portion
of the Premises located on the 12th Floor of the Building, comprised of 22,707
rentable square feet, depicted on Appendix A-1 attached hereto (the "12th Floor
Relinquished Premises"), and (ii) a portion of the Premises located on the lower
level of the Building, comprised of 4,649 rentable square feet, depicted on
Appendix A-2 attached hereto (the "Lower Level Relinquished Premises"; the 12th
Floor Relinquished Premises and the Lower Level Relinquished Premises are
sometimes collectively referred to herein as the "Relinquished Premises");
WHEREAS, Tenant and Landlord also desire to amend other terms of the Lease
as described herein;
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 agree as follows:
I. 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 terms, provisions and
exhibits of the Lease shall remain unmodified and in full force and effect.
II. Relinquishment of Relinquished Premises.
A. On or before January 31, 2001, Tenant shall relinquish to Landlord, and
Landlord shall reacquire from Tenant, the Relinquished Premises.
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B. After January 31, 2001 (the "Relinquished Premises Termination Date"),
but except as provided in the last sentence of this Paragraph, the Lease shall
terminate with respect to the Relinquished Premises and the Relinquished
Premises shall be deleted from the defined term "Premises." Accordingly, neither
Landlord nor Tenant shall have any obligations or liabilities to the other under
the Lease with respect to or in connection with the Relinquished Premises,
including, without limitation, rental obligations, obligations for taxes or
operating expenses or any non-monetary obligations or liabilities (collectively,
the "Liabilities") except for (i) Liabilities which constitute monetary
obligations that have accrued prior to the Relinquished Premises Termination
Date and remain unpaid to the other on the Relinquished Premises Termination
Date, and (ii) Liabilities which constitute non-monetary obligations which by
their express terms survive the expiration or earlier termination of the Lease.
Notwithstanding the foregoing, Tenant's obligation to pay Rent as to the
Relinquished Premises shall cease as of February 28, 2001.
C. If Tenant fails to completely vacate and relinquish to Landlord (by
turning over the keys and removing all furniture and personal property)
Relinquished Premises in accordance with the terms of Paragraph 3 below before
the Relinquished Premises Termination Date, notwithstanding anything contained
in Section 15 of the Lease to the contrary, (i) such failure shall be treated as
a holding over by the Tenant, (ii) the Tenant shall be treated as a tenant at
sufferance (and not a month-to-month tenant), (iii) such holdover shall be
deemed an automatic default under the Lease, and (iv) Landlord shall be entitled
to all the remedies therefor under the Lease provided that, Tenant shall pay
Base Rent as to such space at 200% of the rate in effect immediately prior to
such hold over as directed by Landlord.
III. Relinquishment of the Relinquished Premises. Tenant shall timely relinquish
the Relinquished Premises to Landlord in "as-is, where-is" condition and Tenant
shall remove all personal property and moveable equipment from the Relinquished
Premises prior to relinquishment.
IV. Schedule.
A. As of the date Tenant receives a fully-executed original of this Amendment
from Landlord, Item 5 to the Schedule of the Lease shall be deleted in its
entirety and replaced by the following:
5. SECURITY DEPOSIT: See Section 20. The amount of the Security
Deposit shall be equal to $2,000,000.00.
B. As of the Relinquished Premises Termination Date, Items 2 through 4 of the
Schedule to the Lease shall be deleted and replaced by the following so as to,
among other things, properly reflect the then-termination of the Relinquished
Premises as a portion of the Premises:
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2. PREMISES: The Premises consist of the following: (i) 49,847 rentable
square feet of space comprising all of floors fourteen and
fifteen of the Building and 4,433 rentable square feet of
space on floor ten of the Building (the "Office Space");
and (ii) 3,240 rentable square feet in the lobby of the
Building (the "Retail Space").
3. RENTABLE SQUARE FEET OF THE PREMISES: 53,087 rentable square feet
(including the Retail Space).
4. TENANT'S PROPORTIONATE SHARE: 8.5260% (based upon the Premises,
including the Retail Space, and a total of 622,667 rentable
square feet in the Building).
V. Security Deposit. As of the date Tenant receives a fully-executed original
of this Amendment from Landlord, Section 20 of the Lease shall be deleted in its
entirety and replaced with the following:
A. Tenant shall deposit with Landlord security for the performance of
all of its obligation in the amount set forth in Item 5 to the
Schedule and in the form set forth below. If Tenant defaults under
this Lease, Landlord may use any part of the Security Deposit to make
any defaulted payment, to pay for Landlord's cure of any defaulted
obligation, or to compensate Landlord for any loss or damage resulting
from any default. To the extent any portion of the Security Deposit is
used, Tenant shall within five (5) days after demand from Landlord
reinstate the Letter of Credit (defined below) to its full amount. If
Tenant shall perform all of its obligations under this Lease and
return the Premises to Landlord at the end of the Term, Landlord shall
return either all of the remaining Security Deposit or the Letter of
Credit to Tenant. The Security Deposit shall not serve as an advance
payment of Rent or a measure of Landlord's damages for any default
under this Lease.
B. The Security Deposit shall be in the form of an unconditional and
irrevocable letter of credit (the "Letter of Credit"), which Letter of
Credit shall (a) be in the amount as described in the Schedule above,
(b) be in substantially the form attached hereto as Appendix G, (c)
name Landlord as its beneficiary, (d) expressly allow Landlord to draw
upon it at any time or from time to time by delivering to the issuer
written notice that Landlord is entitled to draw thereunder, (e) be
drawn on an FDIC-insured financial institution satisfactory to
Landlord, (f) be redeemable in the State of New York, and (g) be
automatically renewed on an annual basis unless the issuing bank
provides Landlord with at least thirty (30) days prior written notice
that it is not renewing the Letter of Credit for the upcoming year. If
the issuing bank elects to not renew the Letter of Credit for any year
and Tenant does not cause another bank to issue the Letter of Credit
to Landlord at least ten (10) days prior to the expiration of the
Letter of Credit Landlord then holds, then Landlord shall have the
right to draw under such Letter of Credit then held by Landlord and
hold such funds as a Security Deposit in accordance with the terms of
this Section 20. Tenant shall provide Landlord with a document that
will have the effect of causing the Letter of Credit to thereafter be
in the amount of $2,000,000 within five (5) business days after
Tenant's receipt of a fully executed original of this Amendment from
the Landlord. Landlord and Tenant shall cooperate with Tenant's bank
in so causing the Letter of Credit to be modified to be in the amount
of $2,000,000.
C. If Landlord transfers its interest in the Project or this Lease,
Tenant will cause the issuance of a new Letter of Credit for the
benefit of the transferee. Upon such transfer and return of the old
Letter of Credit, Landlord shall have no further obligation to return
the Letter of Credit to Tenant, and Tenant's right to the return of
such Letter of Credit shall apply solely against Landlord's
transferee.
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VI. Base Rent. Effective as of March 1, 2001, Section 31A and B of the Lease
shall be deleted and replaced in its entirety with the following:
A. Base Rent for the Office Space shall be in accordance with the
following schedule:
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Period Base Rent
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March 1, 2001 - December 31, 2001 $8.16 per rentable square foot
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January 1, 2002 - December 31, 2002 $8.41 per rentable square foot
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January 1, 2003 - December 31, 2003 $8.66 per rentable square foot
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January 1, 2004 - December 31, 2004 $8.91 per rentable square foot
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January 1, 2005 - December 31, 2005 $9.16 per rentable square foot
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January 1, 2006 - December 31, 2006 $9.41 per rentable square foot
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January 1, 2007 - December 31, 2007 $9.66 per rentable square foot
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January 1, 2008 - June 30, 2008 $9.91 per rentable square foot
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B. Base Rent for the Retail Space shall be in accordance with the
following schedule:
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Period Annual Base Rent
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March 1, 2001 - December 31, 2001 $18.00 per rentable square foot
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January 1, 2002 - December 31, 2002 $18.25 per rentable square foot
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January 1, 2003 - December 31, 2003 $18.50 per rentable square foot
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January 1, 2004 - December 31, 2004 $18.75 per rentable square foot
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January 1, 2005 - December 31, 2005 $19.00 per rentable square foot
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January 1, 2006 - December 31, 2006 $19.25 per rentable square foot
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January 1, 2007 - December 31, 2007 $19.50 per rentable square foot
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January 1, 2008 - June 30, 2008 $19.75 per rentable square foot
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VII. Appendix A to Lease. As of the Relinquished Premises Termination Date,
Appendix A attached to the Lease is hereby amended to delete the Relinquished
Premises described herein.
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VIII. Real Estate Broker. Both parties represent that they have not dealt with
any real estate broker except for Xxxxxxx Xxxxxxx-Xxxxxxx with respect to this
Amendment, and to their knowledge, no other broker initiated or participated in
the negotiation of this Amendment. Tenant represents to Landlord that Equis is
not entitled to any commission from Landlord in connection with this Amendment
and Tenant shall indemnify and hold Landlord harmless from any claims made by
Equis for a commission in connection with this Amendment. Both parties agree to
indemnify and hold the other party harmless from and against any claims by any
other broker, agent or other person claiming a commission or other form of
compensation by virtue of having dealt with the indemnifying party with regard
to this leasing transaction.
IX. 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, and (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.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
LANDLORD: TENANT:
TIAA REALTY INC., a Delaware FLORSHEIM GROUP INC.,
corporation a Delaware corporation
By: Teachers Insurance and Annuity
Association of America, a
New York corporation, its
authorized representative
By: /s/ S. Xxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Name S. Xxxx Xxxxxxxx Name: Xxxxxx X. Xxxxx
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Title: Director Title: EVP, CFO
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