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Exhibit 10.45
AGREEMENT TO AMEND SUBLEASE AND
CONSENT TO ASSIGNMENT
THIS SUBLEASE AMENDMENT AGREEMENT AND CONSENT TO ASSIGNMENT (the
"Agreement"), dated as of April 2, 1998, is entered into among MAPLE PROPERTIES
COMPANY, L.L.C., an Illinois limited liability company having an address c/o
Tinicum Incorporated, 000 Xxxxx Xxxxxx -- 00xx Xxxxx, Xxx Xxxx, XX 00000
("MPC"), XXXXXXX FOODS, L.L.C., a Delaware limited liability company, having an
address at 0000 Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxx ("Xxxxxxx") and Delicious
Frookie Company, Inc., a Delaware corporation ("DEC").
RECITALS
WHEREAS, reference is made to a certain lease (the "ElectroCom Lease"),
dated as of June 9, 1994, between MPC, successor-in-interest to Am Properties
Corporation ("AMP") as owner of certain real estate known as 0000 Xxxxx Xxxxxx,
Xxx Xxxxxxx, Xxxxxxxx (the "Property"), as landlord, and ELECTROCOM AUTOMATION,
INC.("ElectroCom"), as tenant, pursuant to which ElectroCom leased from MPC
certain premises at the Property comprising approximately 54,500 square feet
(the "Premises").
WHEREAS, reference is made to a certain sublease (the "Sublease") dated
March 25, 1995 between ElectroCom, as sublessor,and Xxxxxxx, as sublessee,
pursuant to which ElectroCom subleased to Xxxxxxx approximately 44,500 square
feet of the Premises (the "Subleased Premises").
WHEREAS, reference is made to an oral license (the "Furniture License")
pursuant to which ElectroCom agreed to permit Xxxxxxx to use a portion of the
"ElectroCom Furniture" (as defined below).
WHEREAS, pursuant to an Assignment and Assumption Agreement (the "E-Com
Assignment") dated as of May 19, 1997, ElectroCom assigned to MPC certain rights
and interests, including its interest in the Lease and Sublease, and sold to MPC
all of its right, title, and interest in and to office furniture and furnishings
located at the Premises that were previously owned or had been used by
ElectroCom (the "ElectroCom Furniture");
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WHEREAS, reference is made to a certain lease (the "HIGH BAY LEASE") dated
August 17, 1997, and amended by a letter dated September 9, 1997 and by Memos
of October 15 and 17, 1997, between MPC, as landlord, and Xxxxxxx, tenant,
pursuant to which MPC subleased to Xxxxxxx a portion of the unit known as 0000
Xxxxxxxxx Xxxxxx, Des Plaines (the "HIGH BAY PREMISES"); the foregoing letter
of September 9, 1997 amending the Sublease as well;
WHEREAS, Xxxxxxx has entered into an agreement to sell, transfer and
convey substantially all of its business and operating assets to the DFC;
WHEREAS, at a March 19, 1998 meeting at the Sublease Premises, Xxx Xxxxxx
of Xxxxxxx requested that MPC consent to Xxxxxxx'x assignment of the Sublease,
the High Bay Lease and the Furniture License to DFC (the Sublease and the High
Bay Lease being referred to collectively as the "SUBJECT AGREEMENTS");
WHEREAS, MPC and DFC have discussed the possibility of terminating the
Sublease with DFC's taking a lease of the entire Premises (54,500 SF) for a
term of 5 to 6 years at rents as described below, but no agreement has been
reached concerning this arrangement;
WHEREAS, MPC agrees to consent to Xxxxxxx'x assignment of its rights
under the Subject Agreements to DFC, it being understood that such consent is
subject to all of the limitations set forth below, including but not limited to
execution and delivery of this Agreement by MPC, Xxxxxxx and DFC.
NOW THEREFORE, MPC, Xxxxxxx and DFC agree as follows:
1. POSSIBLE NEW LEASE TO DFC. MPC and DFC have discussed the possibility of
terminating the Sublease with DFC's taking a lease of the entire Premises
(54,500 SF) plus a license to use the ElectroCom Furniture on terms and
conditions substantially as set forth in the Lease, but with an unexpired lease
5 to 6 years. MPC is interested in making such a lease at rents as provided in
the Lease with a starting monthly Base Rent (as defined in the Lease) of
$26,000.00 ($5.72 PSF) with escalations of 3% per annum, provided that DFC
completes a recapitalization that renders DFC's equity capital satisfactory to
MPC. It is MPC's understanding that the Premises can be delivered to DFC vacant
or with Xxxxxxxx and Gard to remain as
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subtenants of DFC (MPC believes that the space can also be delivered with
Xxxxxxxx and Xxxx to remain but with the Gard offices at the south (front) end
vacated). Gard and Xxxxxxxx presently pay combined rents of $2,250.00 per month
under month-to-month leases. MPC and DFC acknowledge and agree that no
agreement has been reached regarding such a lease or the subject matter of
this Paragraph and that neither party has any obligation to the other regarding
the same.
2. AMENDMENT OF SUBLEASE. The Sublease is hereby amended to give MPC
the right to terminate the same on not less than ninety (90) days' prior
written notice, provided that the effective date of any termination by MPC
resulting from MPC's exercise of such rights shall not be prior to July 1,
1998. If MPC gives such a notice to the sublessee thereunder, the Sublease
shall terminate and expire on the date specified in that notice.
3. CERTAIN DAMAGE BY XXXXXXX. Xxxxxxx acknowledges that it is
responsible for certain damage to the Sublease Premises and the High Bay
Premises, including but not limited to the damage to the Sublease Premises and
the High Bay Premises described on Exhibits 1 and 2 attached hereto and made a
part hereof. On account of the same and as further consideration for MPC's
consent to the assignment of the Subject Agreements to DFC, within ten days of
the date hereof, DFC agrees to
(i) pay $5,000 to MPC in exchange for MPC's taking full
responsibility and releasing Xxxxxxx and (DFC as assignee) under the
Sublease for (x) any repair or replacement of conditions described on
Exhibit 2 as damaged in the High Bay Premises and (y) replacement of two
of the columns shown as damaged on Exhibit 1; and
(ii) pay a further $5,000 to MPC to increase the Security Deposit
held by MPC under the Sublease to $20,500.
In exchange for the foregoing and the other consideration that it receives
under this Agreement, MPC agrees to release Xxxxxxx from liability that Xxxxxxx
has under the Subject Agreements for damages to the Sublease Premises or the
High Bay Premises. Notwithstanding the foregoing, it is understood and agreed
that nothing
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in this Section 3 shall affect the obligations of DFC as assignee of the
Subject Agreements, except for the release set forth in the foregoing
clause(i).
4. XXXXXXX CERTIFICATIONS. Xxxxxxx certifies and/or covenants to and for
the benefit of MPC as follows:
(a) (i) The High Bay Lease is "month-to-month" and is terminable
on at least twenty-one (21) days prior written notice, and (ii) in the event of
an MPC termination of the same, Xxxxxxx understands that (x) time shall be of
the essence as to Xxxxxxx'x (the tenant's) obligation to surrender the same in
accordance with the terms of that Lease and (y) MPC may be materially harmed by
any failure of Xxxxxxx (the tenant thereunder) to comply with the same; and
(b) (i) Xxxxxxx has no right, title or interest in and to any of
the ElectroCom Furniture other than a license to use the same so long as the
Sublease is in effect and (ii) that license is subject to the condition that
Xxxxxxx return the same to MPC in good condition, reasonable wear and tear
excepted.
5. ASSIGNMENT. Xxxxxxx does hereby assign unto DFC all of Xxxxxxx'x
right, title and interest in and to the Subject Agreements and this Agreement,
and DFC hereby accepts the foregoing assignment.
6. ASSUMPTION. DFC hereby expressly assumes and agrees to perform and
discharge all of the terms, covenants, undertakings, conditions and obligations
of, or binding, upon Xxxxxxx under and pursuant to the Subject Agreements and
this Agreement, and all liabilities and obligations resulting therefrom.
7. DFC PAYMENTS. DFC acknowledges that the rents set forth in the
Sublease are below the market value of Xxxxxxx'x rights under the Sublease,
leaving aside the substantial value to DFC of Xxxxxxx'x assignment to DFC of
Xxxxxxx'x license to use the ElectroCom Furniture. Therefore, in consideration
of and as a condition of MPC's grant of consent to the assignment to DFC of the
Subject Agreements, in addition to any other charges payable by DFC as assignee
under the Sublease and High Bay Lease, DFC agrees to pay to MPC $6,500.00 per
month (pro-rated for any partial month) for the period commencing on the date
hereof through and including the termination or other expiration of the
Sublease. It is expressly understood and agreed by the
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parties hereto that Xxxxxxx shall in no event be responsible for the
obligations of DFC set forth in this Paragraph.
8. MPC CONSENT. Based on the foregoing and the further provisions
of this Agreement, MPC hereby consents to Xxxxxxx'x assignment of the Subject
Agreements to DFC, provided that such consent shall not release Xxxxxxx from its
obligations under the Subject Agreements except to the extent expressly
provided in Section 3 hereof.
9. INDEMNITY. MPC, Xxxxxxx and DFC each agree to indemnify, defend
and hold harmless the other two parties hereto from and against any and all
claims, costs, expenses or liability, including but not limited to reasonable
attorneys' fees and expenses, to the extent caused by a breach by the
indemnifyng party of any covenant, agreement, warranty, representation or other
obligation under this Agreement.
10. CONTINUED EFFECTIVENESS OF THE SUBJECT AGREEMENTS. Except as
expressly amended herein, all of the other terms and conditions of the Subject
Agreements shall remain in full force and effect.
11. COUNTERPART EXECUTION. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument, it being understood that delivery of
executed signature pages by telecopier shall be deemed permissible.
12. EXECUTION OF THIS AGREEMENT BY MPC. The submission by MPC of
this Agreement for examination and negotiation does not constitute an offer by
MPC to consent to the foregoing assignment or an option to do so.
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This Agreement shall become effective and binding only upon the execution and
delivery hereof by all of MPC, Xxxxxxx and DFC.
IN WITNESS WHEREOF, MPC, Xxxxxxx and DFC evidence their agreement to the
foregoing by executing this Agreement in the spaces indicated below.
MPC: MAPLE PROPERTIES COMPANY, LLC
an Illinois limited liability company
* consent and agreement by MPC as aforesaid
provided the following are delivered to MPC
on or before Wednesday, April 8, 1998:
(i) good check(s) and/or wire transfers
totalling $39,466.67 for the items set
forth on attached Exhibit 3 and (ii)
pro-forma balance sheet for [DFC] showing
financial position for the combined
Xxxxxxx/DFC entities as of the consummation
of their combination. If not timely
received, consent null and void. Time is of
the essence as to receipt.
JS for MPC
4-3-98
BY: AMERICAN PROPERTIES CORPORATION, its
manager
BY: /s/ Xxxxx Xxxxx
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XXXXX XXXXX
PRESIDENT
XXXXXXX: XXXXXXX FOODS, L.L.C.
a Delaware limited liability company
BY: /s/ Xxx Xxxxxx, Jr.
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XXX XXXXXX, JR.,
PRESIDENT
DFC DELICIOUS FROOKIE COMPANY, INC.
a Delaware corporation
BY: /s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
PRESIDENT
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Exhibit 3
WIRE INSTRUCTIONS
To wire payment to Maple Properties, you will need the following information:
Bank Name: Citibank, N.A.
Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
ABA Number: 000-000-000
Account name: Maple Properties Company, L.L.C.
Account Number: 4336-2351
Account Type: IMMA
$39,466.67
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XXXXXXX FOODS, L.L.C. - Base Rent/monthly $15,500.00
0000 Xxxxx Xxxxxx - Additional Rent/monthly $ 1,800.00
- High bay rent/monthly $ 5,666.67
- Repairs (Sec 3 of Consent) $ 5,000.00
- Increase in Security Deposit $ 5,000.00
- DFC Payment/monthly $ 6,500.00
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$39,466.67
