MODIFICATION TO SUBLEASE
MODIFICATION
TO SUBLEASE
THIS
MODIFICATION TO SUBLEASE (“Modification”)
is
made and entered into as of April ___, 2006 by and between KEYSTONE RUBY LLC,
an
Ohio limited liability company (the “Landlord”),
and
FIBERSTARS, INC., a California corporation (the “Tenant”).
WITNESSETH
WHEREAS,
the Landlord, as the purchaser pursuant to a certain Agreement of Purchase
and
Sale dated as of April 19, 2006 is purchasing from ADLT Realty Corp. I,
Inc. (“ADLT”),
improved real property having an address of ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇ (the “Property”);
and
WHEREAS,
pursuant to the terms of that certain Master Lease dated as of March 11, 1998
(the “Master
Lease”)
by and
between ADLT and Venture Lighting International, Inc. (“Venture”),
ADLT
master leased the Property to Venture; and
WHEREAS,
pursuant to the terms of that certain Sublease Agreement dated as of September
6, 2005 by and between Venture and Tenant (the “Sublease”),
Venture subleased a portion of the building (the “Building”)
situated upon the Property to Tenant (the “Leased
Premises”);
and
WHEREAS,
pursuant to the terms of the Sublease, the Leased Premises is currently
comprised of 59,000 square feet, but effective as of May 1, 2006, the parties
wish to increase the Leased Premises to 79,424 square feet; and
WHEREAS,
pursuant to the terms of that certain Assignment of Sublease made and entered
into by Venture and Landlord as of the date hereof, Venture has assigned to
the
Landlord all of Venture’s right, title and interest in the Sublease to the
Landlord; and
WHEREAS,
the Tenant desires to remain an occupant in the Building, from and after the
purchase of the Property by the Landlord and Landlord desires to assume the
rights and obligations of Venture under the Sublease with regard to
Tenant;
WHEREAS,
Tenant desires to sublease to Venture, and Venture desires to sublease from
Tenant, 10,000 square feet of Tenant’s Leased Premises at the Building, and
Landlord is willing to reasonably consent to such sublease; and
WHEREAS,
the Landlord and the Tenant understand and agree that upon the assignment of
the
Sublease to Landlord and the execution of this Modification, the terms of the
Master Lease and the Sublease (as modified hereby) shall remain in effect but
as
a master lease and hereafter, Landlord and Tenant shall have the relationship
to
one another of landlord and tenant, and not that of landlord and
subtenant.
NOW
THEREFORE, in consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree that the Sublease shall be modified
as
follows:
|
1.
|
Leased
Premises.
The Tenant currently leases 59,000 square feet of the first floor
of the
Building. Effective as of May 1, 2006, the Leased Premises shall
be
expanded to include an additional 20,424 square feet, with the result
that
the Leased Premises shall be comprised of 79,424 square feet, as
identified on the “Lease
Plan,”
attached hereto and made a part hereof as Exhibit A.
Notwithstanding anything to the contrary in the Sublease, all references
in the Sublease to the “Subleased Premises” shall mean 79,424 square feet
in the location depicted on Exhibit
A.
Landlord hereby consents to Tenant’s subleasing to Venture approximately
10,000 square feet in the location depicted at
Exhibit A-1
hereto, on such terms as Tenant and Venture may
agree.
|
|
2.
|
Base
Rent.
Notwithstanding anything to the contrary contained in the Sublease,
Base
Rent for the Leased Premises shall be payable in the following
amounts:
|
|
Period
|
Base
Rent per square foot per month
|
Monthly
Base Rent*
|
|
5/1/06
-
|
$.57
|
$45,271.68
|
|
6/30/06
|
||
|
7/1/06
-
|
$.57
|
$45,271.68
|
|
4/30/07
|
||
|
5/1/07
-
|
$.60
|
$47,654.40
|
|
4/30/08
|
||
|
5/1/08
-
|
$.615
|
$48,845.76
|
|
4/30/09
|
||
|
5/1/09
-
|
$.615
|
$48,845.76
|
|
4/30/10
|
||
|
5/1/10
-
|
$.615
|
$48,845.76
|
|
4/30/11
|
*To
be increased on a pro rata basis if the Leased Premises are increased pursuant
to Section
4,
Section
8
or
otherwise.
|
3.
|
Computer
Room.
Landlord and Tenant acknowledge that Tenant is currently occupying
a
computer room in the Building that does not lie within the Leased
Premises
(the “Computer
Room”).
Subject to the provisions and requirements of Article 8 of the Sublease,
Tenant agrees that it shall, within sixty (60) days, relocate the
Computer
Room to a location within the Leased Premises. Landlord agrees to
contribute up to $40,000 toward Tenant’s actual, out of pocket costs in
connection with such relocation.
|
2
|
4.
|
Expansion.
The Tenant has advised the Landlord that it anticipates the possibility
of
expanding the size of the Leased Premises by approximately 30,000
square
feet as a result of the consolidation of Tenant’s operations. On or before
July 1, 2006, Tenant shall notify the Landlord whether it shall
expand the size of the Leased Premises. If the Tenant elects to expand
the
size of the Leased Premises in accordance with this Section
4,
the Leased Premises shall be expanded in the manner as depicted upon
Exhibit B
(the “Expansion
Space”)
attached hereto on the same terms as the current Leased Premises,
and
Landlord shall separate at its sole expenses without material disruption
of Tenant’s operations, by erection of a demising wall, the Leased
Premises from the premises of other tenants in the Building in accordance
with the specifications set forth on Exhibit
C-1
attached hereto (the “Expanded
Leased Premises Wall Specifications”).
In the event that Tenant does not elect to expand the Leased Premises,
Landlord shall separate at its sole expenses without material disruption
of Tenant’s operations, by erection of a demising wall, the Leased
Premises from the premises of other tenants in the Building in accordance
with the specifications set forth on Exhibit
C-2
attached hereto (the “Leased
Premises Wall Specifications”).
Notwithstanding anything to the contrary in the Sublease, the expansion
option set forth in this Section
4
and the right of first offer set forth in Section
8
below shall be the only expansion options available to Tenant under
the
Sublease.
|
|
5.
|
Restroom(s).
Landlord will construct at Landlord’s sole expense without material
disruption of Tenant’s operations restroom(s) for Tenant’s use in the
location depicted upon Exhibit D.
The construction specifications for the restroom(s) are attached
hereto
and made a part hereof as Exhibit D.
|
|
6.
|
Term.
Notwithstanding Section 1.4 of the Sublease, Tenant shall have and
hold
the Premises for a period of four (4) years and eight (8) months,
commencing on May 1, 2006 (the “Commencement
Date”)
and expiring on December 31, 2010 (the “Expiration
Date”).
All references in the Sublease to the Commencement Date and the Expiration
Date shall be deemed to refer to May 1, 2006 and December 31, 2010,
respectively.
|
|
7.
|
Utilities.
Landlord shall reconfigure the utility facilities in the Building
in order
to separately meter or submeter the Leased Premises. As of the
Commencement Date, Tenant’s obligations to pay (or reimburse Landlord) for
utilities as set forth in Article 7 of the Sublease shall be
unmodified. However, Landlord reserves the right to elect to propose
further amendments to the terms of the Sublease such that the Tenant
shall
thereafter become responsible for paying (or reimbursing Landlord)
for the
utilities it does consume, and other costs and expenses that are
the
responsibility of a tenant leasing premises on a “net basis”, and Tenant
agrees to use good faith efforts to enter into such a modification;
provided, however, Tenant shall have no obligation to enter into
any such
“net basis” amendment should it result, or, in Tenant’s reasonable
estimation be likely to result in, an increase in aggregate occupancy
costs to Tenant.
|
3
|
8.
|
Office
Space Right of First Offer.
During the Term, Landlord grants and gives to Tenant a right of first
offer on the approximately 28,000 square feet of upstairs office
space
depicted upon Exhibit E
attached hereto and made a part hereof in its “as is” condition (the
“Office
Space”).
This right of first offer may be exercised at any time during the
term of
the Sublease. In the event that the Office Space becomes available,
Landlord shall notify Tenant in writing and the date that the Office
Space
will be available, and Tenant shall have a period of fifteen (15)
Business
Days in which to notify Landlord whether it wishes to amend the Sublease
to include the Office Space or not (the “Expansion
Option Period”).
In the event that that Tenant does not respond to Landlord within
said
Expansion Option Period, Tenant shall be deemed to have waived its
right
of first offer on the Office Space and Landlord shall be free to
dispose
of the Office Space as it deems appropriate. In the event that Tenant
elects to accept the Office Space in question, Landlord and Tenant
shall
enter into a Sublease amendment including the Office Space in the
Leased
Premises. In the event that Tenant makes such election within twelve
(12)
months subsequent to the Commencement Date, the rental rate for the
office
space shall be negotiated based on which party pays for improvements
per
square foot, net. Thereafter, the rental rate shall be on market
terms.
|
|
9.
|
Signage.
Section
19.3 of the Sublease is hereby deleted, and the parties agree instead
that
Tenant shall have the right to maintain the signage containing the
name
“Fiberstars” in the front of the Building where indicated on Exhibit F,
and Tenant shall maintain said signage at its own cost and expense.
The
parties agree that such signage shall be the only signage centered
on or
over the building and fronting Aurora Road. Any signage facing Aurora
Road
of any other tenant shall be located at either end of the building
or near
a corner. The monument sign for the Building on Aurora Road shall
list all
tenants. Tenant shall also have the right, at Tenant’s sole cost and
expense, and subject to Landlord’s reasonable approval, to install signage
in the interior lobby and the shipping/receiving area of the Leased
Premises, providing the name and of the Tenant and such directional
information as Tenant may require.
|
|
10.
|
Termination
Rights.
The parties agree that the last sentence of Section 1.4 and the whole
of
Section 1.5 of the Sublease are hereby deleted. Tenant’s right to
terminate, if any, arising pursuant to any section other than
Section 1.4, as modified hereby, is waived, and otherwise rendered
null and void.
|
|
11.
|
Entrance
to Leased Premises.
Tenant shall have the right to improve the entrance into the office
area
of the Leased Premises from the reception area with a new door system,
all
in accordance with the provisions and requirements of Article 8 of
the
Sublease.
|
|
12.
|
Parking.
The parties acknowledge that once Venture, which is entering into
a lease
with Landlord for a portion of the Building as of the effective date
of
this Modification, and Tenant are both operating in the Building,
the
existing parking for the Building will be insufficient for both tenants’
employees’ needs. Landlord agrees to provide a solution to this
deficiency.
|
4
|
13.
|
Tenant’s
Legal Fees.
Landlord agrees to reimburse Tenant up to $5,000 for actual, out
of pocket
legal costs incurred by Tenant in connection with the negotiation
and
documentation of this Modification.
|
|
14.
|
No
Unfulfilled Landlord Obligations.
Tenant acknowledges and agrees that there are no existing, outstanding,
overdue and/or unfilled obligations of Landlord arising from and
pursuant
to the terms of the Sublease, including, but not limited to, those
set
forth in Sections 8.3, 19.1, and 19.2, the performance of which was
due prior to the date hereof.
|
|
15.
|
Renewals.
Tenant agrees that the automatic renewal provision set forth in Section
1.6 of the Sublease is hereby deleted and of no further force or
effect.
|
|
16.
|
Terminology.
All capitalized terms not otherwise defined herein shall have the
meaning
set forth in the Sublease. Any reference herein to a section is a
reference to a Modification section, unless otherwise stated. As
said
terminology is incorporated herein, the Landlord and Tenant understand
and
agree that its incorporation shall take into account that the parties
relationship with one another is now that of landlord and tenant,
and that
terms such as “Sublease”, “Subtenant” and “Sublandlord” shall be
incorporated herein as if written “Lease”, “Tenant” and
“Landlord.”
|
|
17.
|
Landlord
and Tenant.
Notwithstanding anything herein to the contrary, the parties hereto
another shall have to one another the relationship of landlord and
tenant.
The terms of the Master Lease and the Sublease, as modified hereby,
shall
be merged and shall be deemed to be one single lease document. Section
19.6 of the Sublease is hereby deleted, and the notice address for
“Sublandlord” set forth in Section 15.1 of the Sublease is hereby amended
to be: Keystone Ruby LLC, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attn: General Counsel. For clarity, and
as was
the case under the Sublease prior to this Modification, the following
provisions of the Master Lease shall continue to be deemed excluded
as
between Landlord and Tenant: Article One (Demised Premises and Term);
Article Three (Annual Rent); Article Four (Additional Rent); Article
Five
(Taxes); Article Six (Insurance); Article Eight (Repairs and Maintenance);
Article Nine (Public Utilities and Services); Article Ten (Alterations);
Section 11.02 (Prohibitions); Article Twelve (Indemnity); Article
Thirteen
(Access for Inspection, Showing and Shoring); Article Fourteen (Damage
and
Destruction); Article Seventeen (Defaults); Article Eighteen (Additional
Remedies of Lessor); and, except to the extent expressly provided
otherwise by the Sublease or this Modification, Tenant shall have
no
obligation to perform or fund work, repairs, upgrades or maintenance
(including any replacements), in, to or upon the Leased Premises
or with
respect to any equipment, system or fixture
therein.
|
|
18.
|
Conflict.
Any conflict between the terms and conditions of this Modification
and the
terms and condition of the Sublease shall be resolved in favor of
the
terms and conditions of the
Modification.
|
5
|
19.
|
Incorporation;
Successors and Assigns.
Except as modified hereby, the terms and conditions of the Master
Lease
and the Sublease remain unmodified and in full force and effect.
The
Sublease as modified hereby shall be binding upon Landlord and Tenant
and
their respective successors and
assigns.
|
IN
WITNESS WHEREOF, the parties have executed this Modification as of the date
first above written.
| LANDLORD: | |||
| KEYSTONE RUBY LLC | |||
| an Ohio limited liability company | |||
| By: | |||
|
|
|||
|
Its:
|
|||
|
|
| TENANT: | |||
| FIBERSTARS, INC. | |||
| a California corporation | |||
| By: | |||
|
|
|||
|
Its:
|
|||
|
|
6
|
STATE
OF _____________
|
)
|
|
)
SS:
|
|
|
COUNTY
OF _________
|
)
|
BEFORE
ME, a Notary Public in and for said County and State, did personally appear
FIBERSTARS, INC., a California corporation, by _______________________________
___________________________________________, its ___________________________,
who acknowledged to me that he/she did sign the foregoing instrument as such
officer and that the same is his/her free act and deed, both individually
and as
such officer of said corporation.
IN
TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
_______________, __________, this _____ day of _______________,
2006.
|
NOTARY PUBLIC |
|||
|
STATE
OF OHIO
|
)
|
|
)
SS:
|
|
|
COUNTY
OF CUYAHOGA
|
)
|
BEFORE
ME, a Notary Public in and for said County and State, did personally appear
KEYSTONE RUBY LLC, an Ohio limited liability company, by ___________________,
its _____________________, who acknowledged to me that he did sign the foregoing
instrument as such officer and that the same is his free act and deed, both
individually and as such officer of said corporation.
IN
TESTIMONY WHEREOF, I have hereunto set my hand and official seal at Cleveland,
Ohio, this _____ day of _______________, 2006.
|
NOTARY PUBLIC |
|||
7
EXHIBIT
A
LEASE
PLAN
EXHIBIT
B
EXPANSION
SPACE
EXHIBIT
C-1
EXPANDED
LEASED PREMISES WALL SPECIFICATIONS
EXHIBIT
C-2
EXPANDED
LEASED PREMISES WALL SPECIFICATIONS
EXHIBIT
D
BATHROOM
LOCATION AND SPECIFICATIONS
Construct
one men’s room, approximately 20’ by 20’
Fixtures
to include 2 toilets, 1 urinal, 2 sinks, toilet partitions
ADA
accessible
VCT
flooring
Walls
& ceiling to be drywall with paint
Includes
electrical, sprinkler and heat
Construct
one women’s room, approximately 15’ by 15’
Fixtures
to include 2 toilets, 2 sinks, toilet partitions
ADA
accessible
VCT
flooring
Walls
& ceiling to be drywall with paint
Includes
electrical, sprinkler and heat
EXHIBIT
E
RIGHT
OF FIRST OFFER SPACE
EXHIBIT
F
SIGNAGE