EXHIBIT 10.1
============
FIRST AMENDMENT TO LEASE
------------------------
THIS FIRST AMENDMENT TO LEASE (this "Amendment") is made and entered
---------
into as of the 9th day of March, 2006, by and between TEACHERS INSURANCE AND
ANNUITY ASSOCIATION OF AMERICA, a New York corporation, for the benefit of
its separate Real Estate Account ("Landlord"), and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ & SON,
--------
INC., a Delaware corporation ("Tenant").
------
WITNESSETH:
----------
WHEREAS, Landlord and Tenant have heretofore entered into that certain
Industrial Lease agreement dated as of April 18, 2003 (the "Lease"), for
-----
certain premises (the "Premises") containing approximately 230,768 square
--------
feet and comprising the entirety of the building located at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, Elk Grove Village, lllinois (the "Building"), all as more specifically
--------
described on Exhibit A attached to the Lease, for a term ("Term") originally
--------- ----
expiring April 20, 2008;
WHEREAS, Landlord has succeeded to all of the rights and interests of
Cabot Acquisition, LLC, as the prior landlord in and under the Lease;
WHEREAS, Tenant heretofore timely exercised its Termination Right
under Section 15.8 (Termination Option) ofthe Lease, with a Termination
Effective Date of April 21, 2006;
WHEREAS, Tenant now desires to extend the Term of the Lease for an
additional period following such Termination Effective Date, and Landlord is
willing to grant the same, all on the terms and conditions hereinafter set
forth; and
WHEREAS, Landlord and Tenant desire to further amend the Lease on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing recitals, the
terms, covenants and conditions contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Landlord and Tenant hereby covenant and agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise
-----------
defined herein shall have the same meaning as provided in the Lease.
2. Extension of Term. Effective as of the date hereof, the Term of
-----------------
the Lease shall be and is hereby extended for an additional period through
and including July 31, 2006, the same as if July 31, 2006 were the Expiration
Date of the Lease as initially set forth therein, unless sooner terminated as
therein provided.
3. Base Rent. Effective on April 21, 2006 (and notwithstanding the
---------
Termination Effective Date referenced above), the Base Rent schedule set forth
in the item captioned "Monthly Base Rent" under the Basic Lease Information
section of the Lease shall be deleted in its entirety and the following Base
Rent schedule shall be substituted in lieu thereof with the result that, from
and after April 21, 2006, and continuing for the remainder of the Term, as
extended hereby, Tenant shall pay Base Rent in accordance with the following
schedule, and otherwise at the same time and in the same manner as set forth
in the Lease:
Period Annual Base Rent Monthly Installment
------ ---------------- -------------------
04/21/06 - 07/31/06 $317,306.00* $95,191.80
* Calculated based upon the three (3) month ten (10) day period
commencing April 21, 2006 and ending July 31, 2006.
4. Additional Rent. During the Term, as extended hereby, Tenant
---------------
shall continue to pay, as additional rent, Tenant's Percentage Share of all
Property Taxes and Insurance Costs, as well as any and all other charges and
sums payable by Tenant under the terms and provisions of the Lease, at the
same time and in the same manner as set forth in the Lease.
5. Condition of Premises. Tenant is currently in occupancy of the
---------------------
Premises and agrees to accept the same during the Term, as extended hereby,
in its "AS IS" condition as existing as of the date hereof, without any
agreements, representations, understandings or obligations on the part of
Landlord to perform any alterations, repairs or improvements therein (except
as expressly provided to the contrary in the Lease, including without
limitation Section 6.1 (Obligations of Landlord) thereof), or to provide any
allowance therefor. Tenant shall remain liable during the Term, as extended
hereby, for the performance of any and all of its obligations under the
Lease, including without limitation Section 6.2 (Obligations of Tenant)
thereof.
6. Other Lease Modifications. The Lease shall be and is hereby
-------------------------
further amended as follows:
A. Effective as of the date hereof, the item captioned "Landlord's
Address" under the Basic Lease Information section of the Lease shall be and
is hereby amended by deleting the notice addresses for Landlord set forth
therein in their entirety and by substituting the following notice addresses
for Landlord in lieu thereof:
"TIAA-CREF
Fixed Income and Real Estate
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: TIAA Real Estate Account
2
with a copy to:
Teachers Insurance and Annuity Association,
for the benefit of its separate Real Estate Account
c/o Cushman & ▇▇▇▇▇▇▇▇▇ of lllinois, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Property Manager"
B. It is acknowledged and agreed that Landlord has heretofore
completed Landlord's Improvements and all other obligations of Landlord set
forth in Section 2.2 (Improvements) of the Lease and Exhibit B (Description
---------
of Landlord's Work) to the Lease, and that Landlord has no further obligation
to construct any Landlord's Improvements or any other improvements to the
Premises during the Term, as extended hereby.
C. Effective as of the date hereof, Section 2.4 (Holding Over) of the
Lease shall be and is hereby amended by deleting the phrase "at a daily Base
Rental equal to one fifteenth (1/15) of the monthly Base Rental in effect at
the expiration of the term ofthis Lease" in its entirety and by substituting
the following in lieu thereof:
", except that, during such holding over, Tenant shall pay Base Rent
in the amount of $126,922.40 per month, plus Tenant's Percentage
Share of Property Taxes and Tenant's Percentage Share of Insurance
Costs, for the period of such holding over and, in addition, Tenant
shall pay Landlord all damages, consequential as well as direct,
sustained by reason of Ten ant's holding over."
D. Effective as of the date hereof, Section 15.8 (Termination
Option) of the Lease shall be and is hereby deleted in its entirety.
E. Effective as of the date hereof, there shall be a new Section
15.9 added to the Lease, which new Section 15.9 shall read in its entirety
as follows:
"15.9 OFAC and Anti-Money Laundering Compliance Certifications.
--------------------------------------------------------
Tenant hereby represents, certifies and warrants to Landlord as
follows: (i) Tenant is not named by, and is not acting, directly or
indirectly, for or on behalf of any person, group, entity or nation
named by, any Executive Order, including without limitation
Executive Order 13224, or the United States Treasury Department as
a terrorist, "Specially Designated National and Blocked Person," or
other banned or blocked person, entity, nation or transaction
pursuant to any law, order, rule or regulation that is enacted,
enforced or administered by the Office of Foreign Assets Control
("OFAC"); (ii) Tenant is not engaged in this transaction, directly
or indirectly, for or on behalf of, or instigating or facilitating
this transaction, directly or indirectly on behalf of, any such
person, group, entity or nation; and (iii) none of the proceeds
used to pay Rent have been or will be derived from a "specified
unlawful activity" as defmed in, and Tenant is not otherwise in
3
violation of the Money Laundering Control Act of 1986, as amended,
or any other applicable laws regarding money laundering activities.
Furthermore, Tenant agrees to immediately notify Landlord if Tenant
was, is, or in the future becomes a "senior foreign political
figure," or an immediate family member or close associate of a
"senior foreign political figure," within the meaning of Section
312 of the USA PATRIOT Act of 2001. Notwithstanding anything in
this Lease to the contrary, Tenant acknowledges and agrees that
this Lease is a continuing transaction and that the foregoing
representations, certifications and warranties are ongoing and
shall be and remain true and in full force and effect on the date
hereof and throughout the Term of the Lease (and any extension
thereof) and that any breach thereof shall be a default under
the Lease (not subject to any notice or cure period) giving rise
to Landlord's remedies, including but not limited to forcible
eviction, and Tenant hereby agrees to defend, indemnify
and hold harmless Landlord from and against any and all claims,
damages, losses, risks, liabilities, fines, penalties, forfeitures
and expenses (including without limitation costs and attorneys'
fees) arising from or related to any breach of the foregoing
representations, certification and warranties."
7. Security Deposit. It is acknowledged and agreed that (i) Landlord
----------------
is currently holding the sum of Eighty-Four Thousand Six Hundred Fourteen
and 93/100 Dollars ($84,614.93) as the security deposit under the Lease,
and (ii) Landlord shall continue to hold the aforesaid security deposit for
the remainder of the Term, as extended hereby, pursuant to the terms and
provisions of the Lease, including without limitation Section 3.3 (Security
Deposit) thereof.
8. Tenant Representation. Tenant represents and warrants to Landlord
---------------------
that: (i) Tenant does not directly or indirectly control Teachers Insurance
and Annuity Association of America ("TIAA") or TIAA Realty, Inc. ("TIAA
Realty") and is not directly or indirectly controlled by or under common
control with TIAA or TIAA Realty; (ii) neither Tenant nor any principal of
Tenant is an officer, director or employee ofTIAA or TIAA Realty, or any
subsidiary or affiliate thereof; and (iii) Tenant is not a partnership in
which TIAA or TIAA Realty, or any subsidiary or affiliate thereof, is a ten
percent (10%) or more (directly or indirectly in capital or profits) partner.
9. Unrelated Business Income. Landlord shall have the right, at any
-------------------------
time and from time to time, to unilaterally amend the provisions of the
Lease if Landlord is advised by its counsel that all or any portion of the
monies paid by Tenant to Landlord thereunder are, or may be deemed to be,
unrelated business income within the meaning of the United States Internal
Revenue Code or the regulations issued thereunder, and Tenant agrees that
it will execute all documents or instruments necessary to effect such
amendment or amendments, provided that (i) no such amendment shall result in
Tenant having to pay in the aggregate more money on account of its occupancy
of the Premises under the terms of the Lease, as so amended, (ii) no such
amendment shall result in Tenant receiving materially less services than it
is presently entitled to receive under the Lease, or services of a materially
lesser quality, and (iii) no such amendment shall result in termination of
the Lease prior to July 31, 2006. Any services which Landlord is
4
required to furnish pursuant to the provisions of the Lease may, at
Landlord's option, be furnished from time to time, in whole or in part, by
representatives or employees of Landlord or any management company for the
Building or the Project or by one or more third persons approved by Landlord.
10. Authoritv of Landlord and Tenant.
--------------------------------
(a) Landlord hereby represents and warrants to Tenant that: (i) the
person signing on behalf of Landlord is duly authorized to execute and
deliver this Amendment; (ii) the execution and delivery of this Amendment and
the performance of the terms hereof have been duly authorized by all
necessary corporate action on the part of Landlord and its agent,
respectively; (iii) no consents or approvals are required from any other
party in order to give full effect to the agreements and covenants of
Landlord contained herein and in the Lease; and (iv) to the knowledge of
Landlord, no defaults and no events or conditions which with the giving of
notice or the passage of time or both would constitute defaults by Landlord
under the Lease are existing at the date of this Amendment.
(b) Tenant hereby represents and warrants to Landlord that: (i) the
person signing on behalf of Tenant is duly authorized to execute and deliver
this Amendment; (ii) the execution and delivery of this Amendment and the
performance of the terms hereof have been duly authorized by all necessary
corporate action on the part of Tenant; (iii) no consents or approvals are
required from any other party in order to give full effect to the agreements
and covenants of Tenant contained herein and in the Lease; and (iv) to the
knowledge of Tenant, no defaults and no events or conditions which with the
passage of time or the giving of notice or both would constitute defaults are
existing at the date of this Amendment.
11. Limitation on Landlord's Liability. In addition to and not
----------------------------------
in limitation of the terms and provisions of Section 10.7 (Landlord Default)
of the Lease, and notwithstanding anything in the Lease to the contrary, no
partner, trustee, director, officer, employee, beneficiary, shareholder or
agent of Landlord or Landlord's property manager shall be personally liable
for the terms and conditions of the Lease, and Tenant and its successors and
assigns shall look solely to Landlord's interest in the Property for the
satisfaction of any claim or judgment requiring the payment of money by
Landlord. Tenant acknowledges and agrees that the Project is an asset held
in Landlord's separate Real Estate Account (the "Separate Account") and that
----------------
the assets and liabilities of the Separate Account are segregated from the
assets and liabilities of Landlord's general account and all other separate
accounts of Landlord (existing either now or in the future) other than the
Separate Account. Without limiting the generality of the preceding provisions
of this paragraph, Tenant agrees that the assets of Landlord's general
account and the assets of any separate account of Landlord other than the
Separate Account (and then only to the extent of Landlord's interest in the
Property) will not be charged with any liabilities arising under the terms of
this Lease and will not be available in order to satisfy Landlord's
obligations thereunder. The limitations of liability provided in this
paragraph are in addition to, and not in limitation of, any limitation on
liability applicable to Landlord provided by law or any other agreement or
instrument.
5
12. Broker. Tenant represents and warrants to Landlord that it has
------
not engaged any broker, fmder or other person entitled to any commission or
fee in respect of the negotiation, execution or delivery of this Amendment
other than ▇▇▇▇▇▇▇ & Wakefield of lllinois, Inc. ("▇▇▇▇▇▇▇") and Colliers
▇▇▇▇▇▇▇ & Kahnweiler, Inc. ("CBK") (collectively, the "Brokers"), and the
only brokers with whom Tenant has dealt in connection with this Amendment are
the Brokers. Tenant agrees to indemnify, defend and hold Landlord harmless
from and against any loss, cost, liability or expense incurred by Landlord as
a result of any claim asserted by any other broker, finder or other person,
other than the Brokers, on the basis of any arrangements or agreements made
or alleged to have been made by or on behalf of Tenant in connection herewith.
Tenant hereby acknowledges that Landlord shall be responsible for the payment
of not more than one (1) commission in connection with this Amendment, which
commission, if any, shall be payable to ▇▇▇▇▇▇▇ pursuant to such separate
commission agreement as Landlord and ▇▇▇▇▇▇▇ may have, and which commission
may be shared between ▇▇▇▇▇▇▇ and CBK pursuant to such separate commission
sharing agreement as ▇▇▇▇▇▇▇ and CBK may have.
13. Headings. The paragraph headings of this Amendment are for
--------
convenience only and are not intended, and shall not be construed to alter,
limit or enlarge in any way the scope or meaning of the language contained in
this Amendment.
14. Counterparts. This Amendment may be executed in counterparts,
------------
each of which shall be deemed an original, and all of which, when taken
together, shall be deemed and shall constitute a single, integrated original
document.
15. Binding Effect. This Amendment shall extend to, be binding upon
--------------
and inure to the benefit of Landlord, its successors and assigns. This
Amendment shall extend to and be binding upon Tenant, its successors and
assigns, and shall only inure to the benefit of Tenant and such of its
successors and assigns as are permitted pursuant to the Lease.
16. Entire Arreement. It is expressly agreed that this Amendment
----------------
constitutes the whole agreement between Landlord and Tenant as to the subject
matter hereof and there are no other tenns, promises, obligations, covenants,
warranties, representations, statements or conditions, expressed or implied,
of any kind and all prior negotiations and agreements in respect of this
Amendment and the Lease are hereby superseded by this Amendment and are of
no further force and effect.
17. Applicable Law. This Amendment and any disputes arising
--------------
hereunder shall be governed by and shall in all respects be construed in
accordance with the laws of the State of lllinois.
18. Status of Lease. Except as expressly amended or modified hereby,
---------------
the Lease and all provisions, terms and conditions thereof shall remain, in
all respects, unchanged and in full force and effect, and are hereby
ratified and confirmed.
6
IN WITNESS WHEREOF, the parties have executed this Amendment as of
the day and date first above written.
LANDLORD:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New York
corporation, for the benefit of its
separate Real Estate Account
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Director
TENANT:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ & SON, INC., a
Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: Executive Vice President Finance
and Chief Financial Officer
7
