SECOND AMENDMENT TO INDUSTRIAL BUILDING LEASE
This Second Amendment to Industrial Building Lease (this "Amendment")
is entered into this 25th day of January, 2008 (the "Effective Date"), by and
between First Industrial, LP, a Delaware limited partnership, as landlord
("Landlord"), and RB Distribution, Inc., a Pennsylvania
corporation, as tenant ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into that certain Industrial
Building Lease, effective January 31, 2006 (the "Lease"), for approximately
268,253 rentable square feet (the "Initial Premises") in that certain building
(the "Building") located at 3150 Barry Drive, Portland, Tennessee;
WHEREAS, Landlord and Tenant amended the Lease by that First Amendment
to Lease dated June 15, 2007 ("First Amendment").
WHEREAS, Tenant has taken occupancy of the Initial Premises and
pursuant to Section 27 of the Lease, Tenant was granted an option to cause
Landlord to expand the Building by approximately 145,790 square feet ("Expansion
Premises"), such that Tenant could lease the Expansion Premises (this option
being referred to in the Lease as the "Expansion Option") in addition to the
Initial Premises; and
WHEREAS, Tenant has elected to exercise the Expansion Option, and
Landlord and Tenant now desire to modify and amend the Lease to set forth the
terms and conditions upon which Tenant will lease the Expansion Premises.
NOW, THEREFORE, in consideration of the terms and provisions of this
Amendment, Landlord and Tenant hereby modify and amend the Lease, as follows:
1. Recitals. All of the Recitals set forth above are hereby
incorporated into the body of this Amendment, as though separately and
specifically set forth herein.
2. Defined Terms and Conflict. Any capitalized terms used, but not
defined, in this Amendment shall be deemed to have the meanings respectively
ascribed to those terms in the Lease. In the event of any conflict between the
terms and provisions of the Lease and those of this Amendment, the terms and
provisions of this Amendment shall control, in all events.
3. Construction of Expansion Premises. Landlord and Tenant hereby
acknowledge that Landlord has agreed to construct the Expansion Premises based
upon the following: (i) final plans, drawings and specifications for the
Expansion Premises (the "Final Expansion Plans"), and (ii) a comprehensive
schedule for the Construction of the Expansion Premises (the "Expansion
Schedule") (the Final Expansion Plans and Expansion Schedule being hereinafter
collectively referred to as the "Expansion Documents"). The Expansion Documents
are attached as Exhibit C-1 to this Amendment and incorporated herein by
reference.
4. Incorporation of Expansion Premises. Effective as of the Expansion
Premises Occupancy Date (as hereinafter defined), Section 1.4 of the Lease is
amended to provide that the "Premises" shall include the entirety of the
Building, as expanded, which shall be deemed to include 414,043 rentable square
feet, consisting of the Initial Premises and the Expansion Premises, as more
particularly shown on the floor plan attached hereto as Exhibit A-1 and
incorporated herein by reference. The "Expansion Premises Occupancy Date" means
either (a) the date a Certificate of Occupancy (or all approvals required by the
issuance thereof if the Tenant can legally occupy the Expansion Premises prior
to issuance of the Certificate of Occupancy) is obtained for the Expansion
Premises or (b) if a Certificate of Occupancy is not required as a condition to
Tenant's lawful occupancy of the Expansion Premises, the date that the Expansion
Premises are substantially completed (subject to punch list items), as confirmed
in writing by Landlord's architect); provided that if either (a) or (b) is
delayed or prevented because of work Tenant is responsible for performing in the
Expansion Premises, "Expansion Premises Occupancy Date" shall mean the date that
all work to be performed by Landlord pursuant to the Expansion Documents which
is necessary for either (a) or (b) to occur, has been performed (subject to
punch list items) and Landlord has made the Expansion Premises available to
Tenant.
5. Lease Term. Effective as of the Expansion Premises Occupancy Date,
Section 1.5 of the Lease is amended to reflect that the "Term" shall be extended
to expire ten (10) years from the Expansion Premises Occupancy Date, unless
renewed pursuant to Section 26 of the Lease.
6. Delivery of Expansion Premises; No Landlord's Work. Landlord shall
deliver possession of the Expansion Premises to Tenant improved and constructed
in substantial accordance with the Final Expansion Plans on the Expansion
Premises Occupancy Date. Subject to the foregoing, Tenant shall otherwise accept
the Expansion Premises in their "AS-IS," "WHERE-IS" condition. Tenant
acknowledges that, except as otherwise provided herein, neither Landlord nor
Agent, nor any representative of Landlord, has made any representation as to the
condition of the foregoing or the suitability of the foregoing for Tenant's
Intended Use. Landlord and Tenant acknowledge and agree that the "Landlord's
Work," as described in Section 5.1 and Exhibit C of the Lease, has been
performed to Tenant's satisfaction and shall not apply to the Expansion
Premises.
7. Base Rent. Landlord and Tenant acknowledge and agree that, effective
as of the beginning of the third month following the Expansion Premises
Occupancy Date, Tenant shall commence paying Annual Base Rent for the Expansion
Premises ("Expansion Premises Base Rent"), in addition to the Base Rent payable
for the Initial Premises as described in Section 2.2 of the Lease and on the
same terms and conditions described therein, which Annual Expansion Premises
Base Rent for the period beginning on the first day of the third month following
the Expansion Premises Occupancy Date to, through and including
February 28, 2010, shall be Four Hundred Seventy-Three Thousand, Eight Hundred
Seventeen and 50/100 Dollars ($473,817.50)on an annual basis. Thereafter,
commencing on March 1, 2010, and continuing through the Extended Term, the
Expansion Premises Base Rent shall be the product of multiplying (i) the
Expansion Premises Base Rent payable for the preceding Lease Year (the
preceding twelve-month period ending March 1) by (ii) the CPI Increase during
the preceding Lease Year; provided, however, in no year shall the CPI Increase
exceed two percent (2%) of the Base Rent for the preceding Lease Year of the
Extended Term. As of the Expansion Premises Occupancy Date, the total Base Rent
payable by Tenant under the Lease shall be the sum of (aa) the Base Rent then
in effect under the Lease with respect to the Initial Premises, plus (bb)
the Expansion Premises Base Rent for the Expansion Premises (provided that
Expansion Premises Base Rent shall not commence until the beginning of the
third month following the Expansion Premises Occupancy Date), but in each
instance subject to those increases as described in the Lease, as amended
hereby (in Section 2.2 of the Lease with respect to the Initial Premises and
in this paragraph of the Amendment with respect to the Expansion Premises).
8. No Termination Option. As of the Effective Date, Landlord and Tenant
acknowledge and agree that the Termination Option set forth in Section 25 of the
Lease has been unconditionally waived by Tenant and is deemed to be of no
further force or effect.
9. Base Rent/Escalation Renewal Term. Section 26.2 of the Lease is
generally amended to provide that the Base Rent (for the Expansion Premises and
the Original Premises) for the first year of the first Renewal Term, and for
each succeeding Lease Year of the first Renewal Term, shall be the amount of
Base Rent payable for the preceding Lease Year multiplied by the stocktickerCPI
Increase; provided, however, in no year shall the CPI Increase exceed
two percent (2%) of the Base Rent for the preceding Lease Year. Should Tenant
exercise the Renewal Option for a second Renewal Term after having previously
exercised the Renewal Option for the first five year Renewal Term, the Base Rent
payable by Tenant for said second Renewal Term shall be governed by the
provisions of Section 26.2 without regard for the preceding sentence.
10. Expansion Premises Acknowledgement. Promptly following the
substantial completion of the Expansion Premises, Landlord and Tenant will enter
into a writing to acknowledge (i) the Expansion Premises Occupancy Date and (ii)
the total Base Rent payable from Tenant to Landlord for the Original Premises
and Expansion Premises.
11. Brokers. Landlord and Tenant represent each to the other that
except for a commission payable by Landlord by Binswanger & Co. under a written
commission agreement, neither party has otherwise used a broker in connection
with this Amendment. Each party shall defend and indemnify the other from and
against any claims, demands and actions brought by any broker or other finder to
recover a brokerage commission or any other damages on the basis of alleged
dealings with the indemnifying party contrary to the foregoing representation.
11. Entire Agreement. This Amendment constitutes the entire
understanding between the parties with respect to the matters contemplated
herein, and all prior or contemporaneous oral agreements, understandings,
representations and statements are merged into this Amendment.
12. Governing Law. This Second Amendment shall be governed by and
construed in accordance with the laws of the state in which the Property is
located.
13. Counterparts; Facsimile. This Second Amendment may be executed in
multiple counterparts and shall be valid and binding with the same force and
effect as if all parties had executed the same Amendment. A fully executed
facsimile copy of this Amendment shall be effective as an original.
14. Amendment to PILOT Arrangement. Tenant shall reasonably cooperate
in good faith with Landlord in connection with Landlord's undertaking to cause
the Expansion Premises and Landlord's financing of same to be subjected to the
PILOT Arrangement under terms and conditions consistent with the PILOT
Arrangement applicable to the Initial Premises.
[signatures on following page]
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Second
Amendment as of the day and year first above written.
LANDLORD:
FIRST INDUSTRIAL, LP, a Delaware limited partnership
By:
/Richard Czerwinski/
____________________________________________
Name: Richard Czerwinski
___________________________________________
Title: National Director of Leasing and Asset Management
__________________________________________________
TENANT:
RB DISTRIBUTION, INC., a Pennsylvania corporation
By: /Thomas J. Knoblauch/
_____________________________________________
Thomas J. Knoblauch
Name: __________________________________________
Secretary
Title: _________________________________________
TENANT'S GUARANTOR hereby signs this Amendment to evidence its consent
thereto and acknowledge that its Guaranty of the Lease remains in full
force and effect:
DORMAN PRODUCTS, INC. (successor to R & B INC.), a Pennsylvania
corporation
By: /Steven Berman/
______________________________________________
Steven Berman
Name: ___________________________________________
President
Title: __________________________________________
EXHIBIT A-1
Expansion Premises
[See attached floor plan.]
EXHIBIT C-1
Expansion Documents
[See attached.]