SECOND AMENDMENT TO AMENDED AND RESTATED INDUSTRIAL REAL PROPERTY LEASE
Exhibit
10.3
SECOND AMENDMENT TO AMENDED AND RESTATED
INDUSTRIAL REAL PROPERTY LEASE
INDUSTRIAL REAL PROPERTY LEASE
THIS
SECOND AMENDMENT TO AMENDED AND RESTATED INDUSTRIAL REAL PROPERTY
LEASE (the “Second
Amendment”) made as of August 1, 2007, by and between
XXXXXXX STREET, LLC, a Delaware limited
liability company (“Landlord”), whose address is care of First American Realty, Inc., 000 Xxxxxxx
Xxxxxx, X.X. Xxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000, successor
in interest to NATIONAL
WAREHOUSE INVESTMENT COMPANY (the “Original
Landlord”), and THERMAL DYNAMICS CORPORATION, a
Delaware corporation (“Tenant”), whose address is 00000 Xxxxxxxx Xxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx
00000
W
I T N E S S E T H:
WHEREAS, the Original Landlord and Tenant entered into that Amended and Restated Industrial
Real Property Lease dated as of August 11, 1988, as amended by a First Amendment to Amended and
Restated Industrial Real Property Lease by and between the Original Landlord and Tenant dated as
of January 11, 1989 (together, the “Lease”), covering the entire building (consisting of
approximately 156,200 square feet of rentable space) located at 00 Xxxxxxx Xxxxxx, Xxxx Xxxxxxx,
Xxx Xxxxxxxxx, together with the parcels on which the building is located; and
WHEREAS, the Lease is evidenced by a Memorandum of Lease dated June 6, 1988 and recorded in
the Official Records of Grafton County, New Hampshire at Book 1743, Page 486; and
WHEREAS, the property leased to Tenant pursuant to the Lease was purchased by Landlord as of
December 30, 2003 and Landlord is now the Landlord under the Lease; and
WHEREAS, Tenant extended the Lease Term in accordance with the applicable provisions of the
Lease for an initial five (5) year Extension Period ending on June 30, 2008; and
WHEREAS, Landlord and Tenant have agreed to (a) provide for a second extension period of
three (3) years commencing as July 1, 2008 at an agreed-upon Base Monthly Rent; (b) provide for
two (2) additional five (5) year Extension Periods under the Lease and (c) to make certain other
revisions to the Lease.
NOW, THEREFORE, in consideration of the agreements contained herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord and
Tenant agree as follows:
1. Landlord Party. Tenant acknowledges and agrees that as of December 30, 2003 all
references to Landlord in the Lease refer to Xxxxxxx Street, LLC, a Delaware limited liability
company, whose address is care of First American Realty, Inc., 000 Xxxxxxx Xxxxxx, X.X. Xxx 000,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000.
2. Notice Addresses. It is acknowledged and agreed that the addresses of Landlord and
Tenant for the giving of notices pursuant to Section 16.7 of the Lease shall be, until a further
change in address by written notice of a party, as follows:
| Landlord: | Xxxxxxx Street, LLC | |||
| c/o First American Realty, Inc. | ||||
| 000 Xxxxxxx Xxxxxx, X.X. Xxx 000 | ||||
| Xxxxxxxxx, XX 00000-0000 | ||||
| [Phone:(000) 000-0000] | ||||
| [Fax: (000) 000-0000] | ||||
| Tenant: | Thermal Dynamics Corporation | |||
| c/o Thermadyne Holdings Corporation | ||||
| Attn: General Counsel | ||||
| 00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000 | ||||
| Xx. Xxxxx, XX 00000 | ||||
| [Phone:(000)000-0000] | ||||
| [Fax: 000-000-0000] |
3. Exercise of Second Extension Period. Tenant hereby irrevocably exercises its
option to extend the Lease Term for the Second Extension Period and Landlord acknowledges that the
Lease Term is hereby extended for the Second Extension Period.
4. Amendment of Certain Lease Provisions. The Lease is amended as follows:
(a) Section 1 .l(c) of the Lease is amended to read in its entirety as follows:
“CPI
Adjustment Date. The term “CPI Adjustment Date” shall mean the
following dates: (a) that date 121 months after the first day of the first full
calendar month following the Commencement Date; (b) the first day of the First
Extension Period; (c) the first day of the Third Extension Period; and (d) the first
day of the Fourth Extension Period.”
(b) The following is added to the end of Section 3.1 of the Lease:
“Notwithstanding the foregoing, the Landlord and the Tenant agree that the
Base Monthly Rent during the Second Extension Period shall be as follows:
| Time Period | Monthly Rent Amount | |||
July 1, 2008 — June 30, 2009 |
$ | 104,000.00 | ||
July 1,2009
— June 30, 2010 |
$ | 91,000.00 | ||
July 1,2010
— June 30, 2011 |
$ | 78,000.00” | ||
(c) The first sentence of Section 16.10 is hereby amended to read in its entirety as follows:
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“Provided there exists no uncured default by Tenant under this Lease, Tenant shall
have the option to extend the Lease as follows: (a) for an initial extension period
of five (5) years commencing on July 1, 2003 and ending on
June 30, 2008 (the “First
Extension Period”); (b) for a second extension period of three (3) years commencing
on July 1, 2008 and ending on June 30, 2011 (the
“Second Extension Period”); (c) a
third extension period of five (5) years commencing on July 1, 2011 and ending on
June 30, 2016 (the “Third Extension Period”); and (d) a fourth extension period
commencing on July 1, 2016 and ending on June 30, 2021 (the
“Fourth Extension
Period”) (the First Extension Period, the Second Extension Period, the Third
Extension Period and the Fourth Extension Period are each referred to herein as an
“Extension Period”).”
(d) Section 16.11 (a) of the Lease is hereby replaced in its entirety by inserting in
its place the following Section 16.11 (a) through (c):
“(a) Effective on each CPI Adjustment Date except for that CPI Adjustment Date
which is the first day of the Third Extension Period, the Base Monthly Rent shall be
the sum of (i) the Base Monthly Rent for the immediately preceding month payable
under paragraph 3.1 hereof plus (ii) the product obtained by multiplying such Base
Monthly Rent by the percentage increase in the Consumer Price Index measured from
the last month for which the Consumer Price Index is published immediately preceding
the month ending five (5) years prior to such CPI Adjustment Date to the last month
for which the Consumer Price Index is published immediately preceding the CPI
Adjustment Date in question.
(b) Effective on the CPI Adjustment Date which is the first day of the Third
Extension Period, the Base Monthly Rent shall be the sum of (i) $91,000.00 plus
(ii) the product obtained by multiplying such Base Monthly Rent by the percentage
increase in the Consumer Price Index measured from the last month for which the
Consumer Price Index is published immediately preceding the commencement of the
Second Extension Period to the last month for which the Consumer Price Index is
published immediately preceding the first day of the Third Extension Period.
(c) Notwithstanding subparagraphs (a) and (b) above, in no event shall the Base
Monthly Rent (i) after the CPI Adjustment Date applicable to the First Extension
Period be less than one hundred twenty percent (120%) nor more than one hundred
twenty-five percent (125%) of the Base Monthly Rent for the month immediately
preceding each such CPI Adjustment Date, (ii) with respect to the CPI Adjustment
Date applicable to the Third Extension Period only, in no event shall the Base
Monthly Rent be less than one hundred nine percent (109%) nor
more than one hundred twelve percent (112%) of $91,000.00 and, (iii) with
respect to the Fourth Extension Period only, in no event shall the Monthly Base Rent
be less than one hundred fifteen percent (115%) nor more than one hundred
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twenty percent (120%) of the Base Monthly Rental for the month immediately preceding
such CPI Adjustment Date.”
5. Capital Improvement. Landlord shall provide Tenant with a
one-time reimbursement of $50,000.00 with respect to certain capital improvements to Leased
Premises made by Tenant, such reimbursement to be payable within forty-five (45)
days of commencement of the Second Extension Period.
6. Guarantor’s Consent and Affirmation. Thermadyne Holdings Corporation hereby
consents to the foregoing and affirms that it is the guarantor of the Lease, as amended hereby,
pursuant to an Amended and Restated Continuing Lease guaranty of Palco Acquisition Company dated as
of August 11, 1988 as successor-in-interest to Palco Acquisition Company.
7. Authority of Parties. By executing this Second Amendment, Landlord and Tenant
represent to each other that: (i) it is authorized to enter into, execute and deliver this Second
Amendment and perform its obligations hereunder; (ii) this Second Amendment is binding and
enforceable in accordance with its terms; (iii) the person signing on its behalf is duly authorized
to execute this Second Amendment and (iv) no other signatures or approvals are necessary in order
to make all of its representations contained in this section true and correct.
8. Capitalized Terms. All capitalized terms not otherwise defined herein shall have
the same meanings set forth in the Lease.
9. Entire Agreement. The Lease, as hereby amended, shall remain in full force and
effect pursuant to its terms and provisions as set forth herein.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Second Amendment to Amended and
Restated Industrial Real Property Lease to be executed by its duly authorized representative as a
sealed instrument as of the day and year first above written.
| XXXXXXX STREET, LLC, a Delaware limited liability company | ||||||
| By: | First American Realty, Inc., a Massachusetts corporation, its Manager | |||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx,
|
|||||
| President and Treasurer | ||||||
| THERMAL DYNAMICS CORPORATION, a Delaware corporation | ||||||
| By: | /s/ Xxxx X. Xxxxxx
|
|||||
| Chief Executive Officer | ||||||
| THERMADYNE HOLDINGS
CORPORATION, a Delaware corporation |
||||||
| By: | /s/ Xxxx X. Xxxxxx | |||||
| Xxxx X. Xxxxxx | ||||||
| Chairman and Chief Executive Officer | ||||||
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