EXHIBIT 10.132
SECOND AMENDMENT TO LEASE AGREEMENT
FOR THE XXXX KALAMAZOO BUILDING
SECOND AMENDMENT TO LEASE AGREEMENT
(Kalamazoo, Michigan)
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THIS SECOND AMENDMENT TO LEASE AGREEMENT (the "Amendment") is made and
entered into as of March 29, 2002, by and between DANACQ KALAMAZOO, LLC, a
Delaware limited liability company ("Lessor"), and XXXX CORPORATION, a Virginia
corporation ("Lessee").
W I T N E S S E T H:
WHEREAS, Lessor and Lessee previously entered into that certain Lease
Agreement, dated as of October 26, 2001 (the "Original Lease"), as amended by
that certain First Amendment to Lease Agreement between Lessor and Lessee dated
as of December 6, 2001 (the "First Amendment;" and the Original Lease, as so
previously amended, is herein referred to as the "Lease"), pursuant to the terms
of which Lessee has leased that certain "Property" (as defined in the Original
Lease) located at 0000 Xxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx; and
WHEREAS, Danacq Farmington Hills LLC, a Delaware limited liability company
and an affiliate of Lessor (the "Farmington Hills Lessor") and Lessee also
previously entered into that certain Lease Agreement dated as of October 26,
2001 (the "Original Farmington Hills Lease"), as amended by that certain First
Amendment to Lease Agreement between the Farmington Hills Lessor and Lessee
dated as of December 6, 2001 (the "First Farmington Hills Amendment;" and the
Original Farmington Hills Lease, as so previously amended, is herein referred to
as the "Farmington Hills Lease"), pursuant to the terms of which Lessee has
leased certain improved real property more particularly described in the
Original Farmington Hills Lease which is located at 00000 Xxxxx Xxxx, Xxxxxxxxxx
Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx (the "Farmington Hills Property"); and
WHEREAS, to facilitate the sale by GEBAM, Inc., a Delaware corporation (the
"Lessor Parent" as defined in the Lease and the Farmington Hills Lease, and
referred to in this Amendment as "GEBAM") of all of its "Member Interest" (as
also defined in each of said leases) in Lessor and in the Farmington Hills
Lessor to Xxxxx Operating Partnership, L.P., a Delaware limited partnership
("Xxxxx") contemporaneously with, and immediately following, the execution and
delivery of this Amendment, Lessor and Xxxxx have requested that Lessee agree to
modify and amend the Lease and the Farmington Hills Lease on the terms set
forth, respectively, in this Amendment and that certain Second Amendment to
Lease Agreement of even date herewith between the Farmington Hills Lessor and
Lessee relating to the Farmington Hills Lease (the "Second Farmington Hills
Lease Amendment"), and Lessee is willing to do so on the terms and conditions
set forth in this Amendment and the Second Farmington Hills Lease Amendment;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100
Dollars, the mutual premises contained herein and in the Second Farmington Hills
Lease Amendment, and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Lessor and Lessee do hereby covenant and agree as follows:
1. Defined Terms. Terms used herein and denoted by their initial
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capitalization shall have the meanings set forth in the Lease unless
specifically provided herein to the contrary. In the event of any conflict or
inconsistency between the terms and conditions of this Amendment and of the
Lease, the terms and conditions of this Amendment shall govern and control.
2. Renewal Options. Article V of the Lease is hereby deleted in its
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entirety, and the following Article V is hereby substituted in lieu thereof:
ARTICLE V
RENEWAL OPTIONS
Section 5.1. FMV Renewal Terms. Upon the expiration of
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the Basic Term, Lessee shall have the right and option,
subject to the terms of this Article V, to extend the Lease
Term for up to six (6) successive fair market value renewal
terms (each such renewal term, a "Renewal Term") of five (5)
years commencing on the day following the expiration of the
Basic Term or the immediately preceding Renewal Term, as the
case may be.
Section 5.2. Conditions to Renewal Terms. The right and
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option of Lessee to extend this Lease for any of the Renewal
Terms shall be subject to the following terms:
(i) At the commencement of any of the Renewal
Terms, this Lease shall be in full force and effect and
no Material Lease Default or Lease Event of Default
shall have occurred and be continuing;
(ii) Lessee shall have exercised its right to
each Renewal Term by giving irrevocable written notice
to the Lessor no later than fifteen (15) months prior
to the expiration of the Basic Term or the previous
Renewal Term; and
(iii) Each Renewal Term shall be on the same
terms, covenants and conditions set forth in this
Lease; provided, however, that Basic Rent shall be
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determined in the manner set forth in Section 5.3
hereof.
Section 5.3. Rent During Renewal Terms. Basic Rent for
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each Renewal Term shall be the Fair Market Rental Value of
the
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Property as of the date of commencement of such Renewal
Term, determined in accordance with the Appraisal Procedure
not more than two hundred seventy (270) days prior to the
commencement of such Renewal Term payable monthly in
advance on the day of each month that Basic Rent was due
during the last year of the Basic Term or of the preceding
Renewal Term, as the case may be.
3. Early Termination.
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(a) Clause (ii) of the first (1st) full paragraph of Section 6.1, which
begins in the thirtieth (30/th/) line on page 14 of the Lease, and continuing
through the end of the sentence in which said clause (ii) is contained, is
hereby deleted in its entirety, and the following clause (ii) is hereby inserted
in lieu thereof:
(ii) the Lessor shall, on an "as is, where is" basis and
without recourse to or warranty by the Lessor, except as to
the absence of Lessor Liens (other than any Lien arising
out of a sublease for which the Lessor has provided a
non-disturbance agreement in accordance with the terms of
this Lease) and subject to the same disclaimers as set
forth in Section 7.1, simultaneously therewith sell the
Property to the highest bidder, the total net selling price
realized at such sale to be retained by the Lessor.
(b) The last sentence of the third (3rd) full paragraph of Section 6.1,
appearing as the first (1/st/) full paragraph on page 15 of the Lease, is hereby
deleted in its entirety, and the following sentence is hereby inserted in lieu
thereof:
Lessee shall pay, as Additional Rent, on demand and no
later than the Termination Date, all of the Lessor's
reasonable costs and expenses of whatever kind or nature
paid or incurred in connection with the rescinded
termination or in connection with the completed termination
of this Lease, including, but not limited to reasonable
attorneys' fees.
4. Loss, Destruction, Condemnation or Damage. The reference "Section
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14.1(d)" contained in the last sentence and last line of Section 14.1 of the
Lease, appearing on page 30 thereof, is hereby deleted, and the reference
"Section 14.1(c)" is hereby inserted in lieu thereof.
5. Transfer of Interests.
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(a) Section 21.1 (a) of the Lease, appearing on page 44 of the Lease,
is hereby deleted in its entirety, and the following Section 21.1(a) is hereby
inserted in lieu thereof:
Section 21.1 Transfers of Interests. (a)(i) Other than
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as expressly permitted by this Section 21.1, Lessor shall
not, without
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the prior written consent of the Lessee, assign, convey or
otherwise transfer (other than to a Lender in connection
with a financing or mortgaging with respect to the
Property) all or any part of the Lessor's right, title or
interest in, to and under this Lease or any other Operative
Documents or the Property (the "Lessor Interest") and (ii)
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other than as expressly permitted by this Section 21.1, the
Lessor Parent, which is the sole member of the Lessor,
shall not assign, convey or otherwise transfer all or any
part of its membership interest with respect to the Lessor
(the "Member Interest").
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(b) Section 21.1(f) of the Lease, appearing on page 46 thereof, is
hereby modified and amended by adding the following sentence thereto:
"Notwithstanding anything to the contrary contained herein,
the provisions of this Article XXI shall not apply to a
transfer or sale of the Property pursuant to Section 6.1 of
this Lease."
6. Termination Value Schedule. Schedule 2B to the Lease is hereby deleted
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in its entirety, and Schedule 2B attached to this Amendment is hereby
substituted in lieu thereof.
7. Amendment of Appendix A. Appendix A of the Lease shall be modified and
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amended as follows:
(a) by deleting the "Address" of Lessor contained in clause "(i)" on
page 2 of Appendix A, and substituting in lieu thereof the following:
(i) With respect to the Lessor:
Xxxxx Operating Partnership, L.P.
c/x Xxxxx Capital, Inc.
0000 Xxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
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with a copy to:
Xxxxxxxx Xxxxxxx LLP
Bank of America Plaza
Suite 5200
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx or
Managing Partner
Fax: (000) 000-0000;
(b) By deleting the definition of "Appraiser" appearing on page 5 of
Appendix A in its entirety;
(c) By deleting the definition of "Fixed Rate Renewal Term" appearing
on page 9 of Appendix A in its entirety;
(d) By deleting the definition of "FMV Renewal Term" also appearing
on page 9 of Appendix A in its entirety;
(e) By deleting the words "or 5.2" appearing in the second (2nd) line
of the definition of "Lease Term" on page 10 of Appendix A;
(f) By deleting the definition of "Mortgage Title Policy" appearing
on page 14 of Appendix A and by substituting in lieu thereof the following
definition:
"Mortgage Title Policy" shall mean the mortgagee title
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insurance policy issued in favor of any Lender in
connection with a Loan."; and
(g) By deleting the definition of "Title Company" appearing on page
18 of Appendix A in its entirety.
8. Compliance with Transfer Requirements. By its execution and delivery
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hereof, Lessee hereby acknowledges and agrees for the benefit of GEBAM and Xxxxx
that all of requirements to be satisfied by Lessor and the Lessor Parent in
connection with the consummation contemporaneously herewith of the sale and
conveyance of the "Member Interest" by GEBAM to Xxxxx pursuant to Article XXI of
the Lease have been satisfied in full.
9. Condition to Amendment. This Amendment shall be of no force or effect
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in its entirety unless and until the following conditions are satisfied, and the
date on which both of said conditions have been satisfied shall be the effective
date of this Amendment:
(a) The consummation of the purchase and sale of the Member Interest
in Lessor by and between GEBAM and Xxxxx; and
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(b) The concurrent consummation of the purchase and sale of the
Member Interest in the Farmington Hills Lessor by and between GEBAM and Xxxxx.
10. Ratification and Binding Effect. Except to the extent expressly
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modified by this Amendment, all terms of the Lease shall remain in full force
and effect; and the Lease, as so modified and amended by this Amendment, is
expressly ratified and confirmed by the parties hereto. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Amendment may be executed in multiple
counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, Lessee and Lessor have caused this Amendment to be duly
authorized, executed and delivered as of the day and year first above written.
LANDLORD:
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DANACQ KALAMAZOO LLC,
a Delaware limited liability company
By: General Electric Capital Corporation
a Delaware corporation, its Manager
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: Authorized Signatory
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(SIGNATURES CONTINUED ON NEXT PAGE)
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(SIGNATURES CONTINUED FROM PREVIOUS PAGE)
TENANT:
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XXXX CORPORATION,
a Virginia corporation
By: /s/ A. Xxxxx Xxxxx
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Name: A. Xxxxx Xxxxx
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Title: Vice President-Treasurer
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