EXHIBIT 10.130
SECOND AMENDMENT TO LEASE AGREEMENT FOR THE XXXX DETROIT BUILDING
SECOND AMENDMENT TO LEASE AGREEMENT
(Farmington Hills, 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 FARMINGTON HILLS, 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 00000 Xxxxx Xxxx, Xxxxxxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxxx;
and
WHEREAS, Danacq Kalamazoo LLC, a Delaware limited liability company and
an affiliate of Lessor (the "Kalamazoo Lessor") and Lessee also previously
entered into that certain Lease Agreement dated as of October 26, 2001 (the
"Original Kalamazoo Lease"), as amended by that certain First Amendment to Lease
Agreement between the Kalamazoo Lessor and Lessee dated as of December 6, 2001
(the "First Kalamazoo Amendment;" and the Original Kalamazoo Lease, as so
previously amended, is herein referred to as the "Kalamazoo Lease"), pursuant to
the terms of which Lessee has leased certain improved real property more
particularly described in the Original Kalamazoo Lease which is located at 0000
Xxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx (the "Kalamazoo Property"); and
WHEREAS, to facilitate the sale by GEBAM, Inc., a Delaware corporation
(the "Lessor Parent" as defined in the Lease and the Kalamazoo 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 Kalamazoo 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 Kalamazoo Lease on the terms set forth, respectively, in
this Amendment and that certain Second Amendment to Lease Agreement of even date
herewith between the Kalamazoo Lessor and Lessee relating to the Kalamazoo Lease
(the "Second Kalamazoo Lease Amendment"), and Lessee is willing to do so on the
terms and conditions set forth in this Amendment and the Second Kalamazoo 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 Kalamazoo 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 the Basic
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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 option of
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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,
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however, that Basic Rent shall be determined in the manner set
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forth in Section 5.3 hereof.
Section 5.3. Rent During Renewal Terms. Basic Rent for each
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Renewal Term shall be the Fair Market Rental Value of the Property as
of the date of commencement of such Renewal Term, determined in
accordance with the Appraisal Procedure not more
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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 second (2nd) full paragraph of Section 6.1,
appearing 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 fifth (5/th/) full paragraph of Section 6.1,
appearing as the third (3/rd/) 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. Section 21.1(f) of the Lease, appearing on page
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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.
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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
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:
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"Mortgage Title Policy" shall mean the mortgagee title insurance
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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
(b) The concurrent consummation of the purchase and sale of the Member
Interest in the Kalamazoo 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.
[SIGNATURES BEGIN ON NEXT PAGE]
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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 FARMINGTON HILLS 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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