EXHIBIT 10.1
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FOURTH AMENDMENT TO INDUSTRIAL BUILDING LEASE
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(Touhy)
This FOURTH AMENDMENT TO INDUSTRIAL BUILDING LEASE (this
"Amendment"), is made as of the 24th day of March, 2006 by and between
300 EAST TOUHY LIMITED PARTNERSHIP, and Illinois limited partnership
("Lessor"), and XXXX X. XXXXXXXXXX & SON, INC., a Delaware corporation
("Lessee").
RECITALS
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A. Lessor, as successor-in-interest to Chicago Title Land
Trust Company, not personally, but as successor Trustee under Trust
Agreement dated September 20, 1966 and known as Trust Number 34837,
and Lessee are parties to that certain Industrial Building Lease dated
November 1, 1985 (the "Original Lease"), as amended by that certain
First Amendment to Industrial Building Lease dated June 1, 1987 (the
"First Amendment"), that certain Second Amendment to Industrial
Building Lease dated December 14, 1990 (the "Second Amendment"), and
that certain Third Amendment to Industrial Building Lease dated
September 1, 1991 (the "Third Amendment") (the Original Lease, as
amended by the First Amendment, Second Amendment and Third Amendment
is hereinafter referred to as the "Lease"), pursuant to which Lessee
leases from Lessor and Lessor leases to Lessee certain real property
and the improvements located thereon commonly known as 000 Xxxx Xxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxx, as more particularly described in the
Lease (the "Premises"); and
X. Xxxxxx and Lessee desire to amend the Lease upon the terms
and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
AGREEMENTS
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1. Definitions. Capitalized terms not otherwise defined
herein shall have the meanings ascribed to such terms in the Lease.
2. Term. The "TERM OF LEASE" as contained on page 1 of the
Original Lease, as amended by Section 1 of the Second Amendment, is
hereby amended to read as follows: "Beginning November 1, 1985 (the
"Commencement Date") and ending on (i) the earlier of (x) June 30,
2006 and (y) the date upon which fee title to the Premises is sold and
conveyed by Lessor, or (ii) such other date as Lessor and Lessee shall
subsequently agree upon in writing (the "Termination Date")." Any
right of first refusal to purchase the Premises which Lessee may hold
is hereby terminated as of the date of this Amendment.
3. Restoration in the Event of Casualty. Section 8(e) of the
Lease is hereby deleted in its entirety and of no further force and
effect.
4. Casualty. The following sentences are added to the end of
Section 18 of the Lease: "Notwithstanding anything to the contrary in
this Section 18, in the event the Premises shall be rendered
untenantable by fire or other casualty, Lessee may, at its option,
terminate this Lease by written notice given to Lessor within thirty
(30) days of the date of the casualty event. Notwithstanding anything
in this Lease to the contrary, Lessee shall have no obligation to
repair or restore the Premises in the event of a fire or other
casualty."
5. Real Estate Taxes. Upon closing of a the sale of fee title
to the Premises to a third party during the "TERM OF LEASE" (as
modified in Section 2 above) (the "Third Party Closing"), Lessee shall
pay to Lessor at the time of the Third Party Closing (which payment
shall be deposited into the closing escrow) an amount towards Lessse's
accrued but unpaid real estate tax liability under the Lease based
upon 100% of the most recent issued real estate tax xxxx (the "Lessee
Tax Liability Payment"). Currently, the Premises is under contract
for sale (the "IAC Sale Contract") to International Airport Center,
LLC ("IAC") and scheduled to close on March 24, 2006. The IAC Sale
Contract provides for a tax proration credit to be given to IAC in the
amount of $98,753.97 (based upon 105% of latest tax xxxx, broken down
as follows: Accrued but unpaid liability for 2005 =$68,860.23; Accrued
but unpaid liability for 1/1/06 thru 3/24/06 = $29,893.74). In the
event the sale of the Premises to IAC pursuant to the IAC Sale
Contract proceeds to closing as scheduled, Lessee will pay a Lessee
Tax Liability Payment in the amount of $91,070.44 into the closing
escrow based upon 100% of the actual 2004 real estate tax xxxx in the
amount of $125,200.42 (Accrued but unpaid liability for 2005 =
$62,600.21; Accrued but unpaid liability for 1/1/06 thru 3/24/06 =
$28,470.23). Notwithstanding the termination of the Lease, (i)
Lessee shall remain liable and promptly pay to Lessor any shortfall
between the actual real taxes when finally determined and the Lessee
Tax Liability Payment made by Lessee pursuant to this Amendment and,
conversely, (ii) Lessor shall remain liable for and shall promptly
remit to Lessee any refund if the Lessee Tax Liability Payment made by
Lessee pursuant to this Amendment exceeds Lessee's liability based on
the actual real estate taxes as finally determined.
6. Tank Removal/Remediation. Lessee acknowledges that it is
responsible for the cost of fuel tank removal and related
environmental remediation in regard to an underground gasoline storage
tank presently located in the northwest corner of the Premises (the
"Environmental Condition"). Lessee acknowledges that Lessor shall
grant to IAC a credit of $40,000.00 against the purchase price under
the IAC Sale Contract (the "Purchase Price Credit") in satisfaction of
the Environmental Condition. Lessee agrees to pay Lessor an amount
equal to the Purchase Price Credit promptly after the closing of the
sale of the Premises to IAC. Lessee's liability relating to the
Environmental Condition shall not in any event exceed $40,000.00.
7. Condition of Premises. Provided that Lessor closed on the
sale of the Premises to IAC pursuant to the IAC Sale Contract, Lessor
acknowledges and agrees that the condition and state of repair of the
Premises and all improvements situated thereon is such that, upon
surrender of the Premises to Lessor on the Termination Date, Lessee
has complied with all obligations and duties under the Lease relating
to the maintenance, condition, and state of repair of the Premises.
8. Ratification. Except as and to the extent modified by this
Amendment, the Lease and all of the terms, conditions and provisions
thereof, shall, in all respects, remain unmodified and unchanged and
are hereby reaffirmed, ratified and confirmed and shall remain in full
force and effect.
9. Conflict or Inconsistency. In the event of any conflict or
inconsistency between the terms of this Amendment and the terms of the
Lease, the terms of this Amendment shall prevail.
10. Binding Effect. The provisions of this Amendment shall be
binding upon and inure to the benefit of the parties hereto and their
respective heirs, administrators, successors, personal representatives
and assigns.
11. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be deemed an original, but all of
which shall constitute but one and the same instrument. Documents and
signatures transmitted via facsimile shall be considered original
signatures for purposes of creating a valid and binding agreement.
12. Governing Law. This Amendment shall be governed by and
construed under the laws of the State of Illinois.
13. Prior Agreements. Any prior agreements with respect to
such matters are superseded, except to the extent any provision of
this Amendment provides otherwise.
14. Headings. The headings of this Amendment are for
convenience of reference only and do not in any way limit or amplify
the terms and provisions hereof.
15. Limitation of Liability. This Agreement is joined and
executed by Chicago Title Land Trust Company, not personally but as
trustee as aforesaid, in the exercise of the power and authority
conferred upon and vested in it as such trustee, and under the express
direction of the beneficiaries of a certain Trust Agreement dated
February 7, 1979 and known as Trust Number 100628 to all provisions of
which Trust Agreement this Amendment is expressly made subject. It is
expressly understood and agreed that nothing herein contained shall be
construed as creating any liability whatsoever against said Trustee
personally, and in particular without limiting the generality of the
foregoing, there shall be no personal liability to pay any
indebtedness accruing hereunder or to perform any covenants, either
express or implied, herein contained, or to keep, preserve or
sequester any property of said Trust, and that all personal liability
of said Trustee of every sort, if any, is hereby expressly waived by
Lessee, and that so far as said Trustee is concerned the owner of any
indebtedness or liability accepting hereunder shall look solely to the
Premises for payment thereof. It is expressly understood and agreed
that said Trustee has no agents or employees and merely holds legal
title to the Premises; that said Trustee has no control over, and
under this Amendment assumes no responsibility for (1) the management
or control of the Premises, (2) the upkeep, inspection, maintenance or
repair of the Premises, (3) the collection of rents or rental of the
Premises, or (4) the conduct of any business which is carried on the
Premises.
16. Integrated Agreements. The parties acknowledge that this
Amendment has been executed by the parties in conjunction with that
certain Master Agreement dated March 24, 2006 (the "Master Agreement")
by and among Lessor, Lessee, Xxxxxx/Xxxxx Limited Partnership, an
Illinois limited partnership, 300 East Touhy Limited Partnership, an
Illinois limited partnership, and Chicago Title Land Trust Company,
not personally, but as successor Trustee under Trust Agreement dated
February 7, 1979 and known as Trust Number 100628, which contemplates
several integrated transactions between said parties, and that this
Amendment will be interpreted with the intent that the purposes as
expressed in the Master Agreement are fully executed.
[Signature page follows]
IN WITNESS WHEREOF, the parties have executed this Amendment as
of the date first above written.
LESSOR:
300 EAST TOUHY LIMITED PARTNERSHIP, an Illinois
limited partnership
By: Touhy Properties, Inc., an Illinois
corporation its General Partner
By: /s/ XXXXXX X. XXXXXXXXXX
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Name: Xxxxxx X. Xxxxxxxxxx
Its: President
LESSEE:
XXXX X. XXXXXXXXXX & SON, INC., a Delaware
corporation
By: /s/ XXXXXXX X. XXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxx
Its: Vice President of Finance