EXHIBIT 10.13
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT, made as of this 28th day of
June, 1996, by and between XXXXXXX X. XXXXX III, AS TRUSTEE of XXXXX (PA) QRS
11-36 and XXXXXXX X. XXXXX III, AS TRUSTEE OF XXXXX (PA) QRS 12-10, a
Pennsylvania business trust (collectively, "Landlord") and DEL MONTE
CORPORATION, a New York corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a Lease Agreement dated as of
October 31, 1995 (the "Lease Agreement") for premises located in Mendota,
Illinois, Toppenish, Washington, Yakima, Washington and Plover, Wisconsin; and
WHEREAS, Landlord and Tenant desire to amend the Lease as hereinafter
set forth.
NOW, THEREFORE, and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Landlord leases and demises to Tenant and
Tenant leases from Landlord the premises described on Exhibit A-1 and Exhibit
A-2 attached hereto and Landlord and Tenant further covenant and agree as
follows:
1. EXHIBIT A, LEGAL DESCRIPTION: YAKIMA, WASHINGTON is hereby deleted in
its entirety and EXHIBIT A, LEGAL DESCRIPTION: YAKIMA, WASHINGTON attached
hereto as Exhibit A-1 is hereby inserted in lieu thereof.
2. EXHIBIT A, LEGAL DESCRIPTION: TOPPENISH, WASHINGTON - Parking
attached hereto as Exhibit A-2 is hereby incorporated into the Lease as part of
Exhibit A to the Lease.
3. EXHIBIT C, PERMITTED EXCEPTIONS (YAKIMA, YAKIMA COUNTY, WASHINGTON)
is hereby deleted in its entirety and EXHIBIT C, PERMITTED EXCEPTIONS (YAKIMA,
YAKIMA COUNTY, WASHINGTON) attached hereto as Exhibit C-1 is hereby inserted in
lieu thereof.
4. EXHIBIT C, PERMITTED EXCEPTIONS (TOPPENISH PARKING, YAKIMA COUNTY,
WASHINGTON) attached hereto as Exhibit C-2 is hereby incorporated into the Lease
as part of Exhibit C.
5. Paragraph 2 of EXHIBIT D, BASIC RENT PAYMENTS is hereby deleted in
its entirety and the following Paragraph 2 is inserted in lieu thereof:
"2. Basic Rent From and After June 28, 1996. Commencing on July
1, 1996 annual Basic Rent shall be $2,572,500 payable on the first day
of July, 1996 and on the first day of each October, January, April and
July thereafter until the expiration of the Term in quarterly
installments of $643,125.00. Basic Rent shall be subject to the
adjustments provided for in subparagraphs A, B and C of Paragraph 5
below."
1.
6. EXHIBIT E, LANDLORD'S SHARE OF PROJECT COSTS is hereby deleted in its
entirety and EXHIBIT E, LANDLORD'S SHARE OF PROJECT COSTS attached hereto as
Exhibit E is hereby inserted in lieu thereof.
7. EXHIBIT F, PERCENTAGE ALLOCATION OF BASIC RENT is hereby deleted in
its entirety and EXHIBIT F, PERCENTAGE ALLOCATION OF BASIC RENT attached hereto
as Exhibit F is hereby inserted in lieu thereof.
8. Paragraph 1. Demise of Premises. is hereby amended by adding the
phrase "Toppenish Parking" after "Toppenish Premises".
9. Paragraph 2. Certain Definitions. is hereby amended as follows:
"Construction Agency Agreement" shall mean that certain
Construction Agency Agreement dated as of October 31, 1995, between
Landlord, as owner, and Tenant, as agent for Landlord in connection with
the construction of the Improvements, as amended by a First Amendment to
Construction Agency Agreement.
"Ground Lease" shall mean that certain Term Lease, lease no.
524,425, dated as of May 1, 1996 between Ground Lessor and Tenant and
assigned by Tenant to Landlord by Assignment of Term Lease dated as of
June 28, 1996 (such assignment having been consented to by Ground
Lessor).
"Ground Lessor" shall mean Burlington Northern Railroad Company,
a Delaware corporation and Washington Central Railroad Company, a
Washington corporation.
"Related Premises" shall mean any one of the Mendota Premises,
Toppenish Premises, Toppenish Parking, Yakima Premises and Plover
Premises.
"Surviving Obligations" shall mean any obligations of Tenant
under this Lease and any obligations of the tenant under the Ground
Lease, actual or contingent, which arise on or prior to the expiration
or prior termination of this Lease or the Ground Lease, as the case may
be, or which survive such expiration or termination by their own terms.
The definition of "Yakima Funding Deadline" is hereby deleted.
10. Subparagraph (a) of Paragraph 5. Term. is hereby restated in its
entirety as follows:
"(a) Subject to the provisions hereof, Tenant shall have and
hold the Leased Premises for a primary term ("Primary Term") commencing
on November 1, 1995 ("Commencement Date") and terminating at midnight on
June 27,1996 ("Primary Term Expiration Date") and for an initial term
(such initial term as extended or renewed in accordance with the
provisions hereof being called herein the Initial Term")
2.
commencing on June 28, 1996 ("Initial Term Commencement Date"). The
Initial Term shall expire on June 30, 2016 "Expiration Date").
11. Paragraph 10. Compliance with Laws and Easement Agreements;
Environmental Matters. is hereby renamed Compliance with Laws, Easement
Agreements and Ground Lease Environmental Matters. and is hereby modified by
adding thereto the following subparagraph (i):
"(i) Tenant, at its sole cost and expense, will at all times and
faithfully abide by, discharge and perform all of the covenants,
conditions and agreements contained in the Ground Lease and will not
alter, modify, amend or terminate or attempt to alter, modify, amend or
terminate the Ground Lease, give any consent or approval thereunder
without in each case prior written consent of Landlord and Lender."
12. Subparagraphs (a) through (c) of Paragraph 18. Termination Events.
are hereby restated in their entirety as follows:
"(a) If (i) all of any Related Premises shall be taken by a
Taking or (ii) any substantial portion of any Related Premises shall be
taken by a Taking or all or any substantial portion of any Related
Premises shall be totally damaged or destroyed by a Casualty and, in any
such case, Tenant certifies and covenants to Landlord that it will
forever abandon operations at the Related Premises or (iii) Landlord
receives notice from Ground Lessor that Ground Lessor is exercising its
right under Section 11(b) of the Ground Lease to terminate the Ground
Lease or (iv) the holder of any mortgage encumbering the interest of
Ground Lessor in the Yakima Premises commences to foreclose or otherwise
acquire the interest of Ground Lessor in the Yakima Premises, (any one
or all of the Related Premises described in the above clauses (i) and
(ii) above and the Yakima Premises with respect to (iii) and (iv) above
being hereinafter referred to as the "Affected Premises" and each of the
events described in the above clauses (i), (ii), (iii) and (iv) shall
hereinafter be referred to as a "Termination Event"), then (x) in the
case of (i) and (iii) above, Tenant shall be obligated, within thirty
(30) days after Tenant receives a Condemnation Notice or within thirty
days after Tenant receives a termination notice from Ground Lessor, as
the case may be, and (x) in the case of (iv) above within ten (10) days
after Tenant receives notice that any such holder has commenced to
foreclose or otherwise acquire Ground Lessor's interest in the Yakima
Premises, and (y) in the case of (ii) above, Tenant shall have the
option, within thirty (30) days after Tenant receives a Condemnation
Notice or thirty (30) days after the Casualty, as the case may be, to
give to Landlord written notice (a "Termination Notice" of the Tenant's
option to terminate this Lease as to the Affected Premises in the form
described in Paragraph 18(b).
(b) A Termination Notice shall contain (i) notice of Tenant's
intention to terminate this Lease as to the Affected Premises on the
first Basic Rent Payment Date which occurs at least thirty (30) days
after the Fair Market Value Date (the "Termination Date"), (ii) a
binding and irrevocable offer of Tenant to purchase the Affected
Premises
3.
for a price equal to the Termination Amount and (iii) if the Termination Event
is an event described in Paragraph 18(a)(ii), the certification and covenant
described therein and a certified resolution of the Board of Directors of Tenant
authorizing the same. Promptly upon the delivery to Landlord of a Termination
Notice, Landlord and Tenant shall commence to determine Fair Market Value.
(c) If Landlord shall reject such offer to terminate this Lease
as to the Affected Premises by written notice to Tenant (a "Rejection"),
which Rejection shall contain the written consent of Lender, not later
than thirty (30) days following the Fair Market Value Date, then this
Lease shall terminate as to the Affected Premises on the Termination
Date; provided that, if Tenant has not satisfied all Monetary
Obligations and all other obligations and liabilities under this Lease
which have arisen as to the Affected Property (collectively, "Remaining
Obligations") on or prior to the Termination Date, then Landlord may, at
its option, extend the date on which this Lease may terminate as to the
Affected Premises to a date which is no later than the first Basic Rent
Payment Date after the Termination Date on which Tenant has satisfied
all Remaining Obligations. Upon such termination (i) all obligations of
Tenant hereunder as to the Affected Premises shall terminate except for
any Surviving Obligations, (ii) Tenant shall promptly vacate and shall
have no further right, title or interest in or to any of the Affected
Premises and (iii) the Net Award or payment by Ground Lessor, as the
case may be, shall be retained by Landlord. Notwithstanding anything to
the contrary hereinabove contained, if Tenant shall have received a
Rejection and, on the date when this Lease would otherwise terminate as
provided above, Landlord shall not have received the full amount of the
Net Award payable by reason of the applicable Termination Event, then on
the Termination Date Tenant shall assign to Landlord all of its right,
title and interest, if any, in and to the Net Award."
13. Paragraph 20. Procedures Upon Purchase. is hereby amended by
deleting clause (i) of subparagraph (b) and inserting in lieu thereof the
following:
"(i) a Special Warranty Deed (or with respect to the Yakima
Premises a Special Warranty Assignment of Ground Lease) which describes
the premises being conveyed and conveys the title thereto as provided in
Paragraph 20(a), . . ."
14. Paragraph 22. Events of Default. is hereby amended in the following
respects:
(a) Subparagraph (a) is hereby amended by changing the date in
clause (xviii) from "April 1, 1996" to "June 28, 1996" and by adding
thereto the following clause (xx) and (xxi):
"(xx) a default shall occur under the Ground Lease, or
(xxi) Tenant shall fail to comply with the terms of Section
6.07 of the Construction Agency Agreement with respect to the Yakima
Premises, or
4.
(xxii) Tenant shall fail to make a rejectable offer under
Paragraph 12(a)(iii) or (iv) within the time periods provided therein."
(b) Subparagraph (b) is hereby amended by deleting the word "or"
in the fourth line thereof and adding the phrase "(xx), (xxi) or (xxii)"
after "(xix)".
15. Paragraph 35. Security Deposit. is hereby amended by deleting the
second full sentence in subparagraph (a) and inserting in lieu thereof the
following:
"The Security Deposit shall be increased to $2,600,000 on
January 1, 1996, to $3,900,000 on April 1, 1996, to June 1, 1996 and
commencing on June 28, 1996 and continuing until completion of the
Yakima Premises in accordance with the terms of Article VI of the
Construction Agency Agreement shall be maintained at an amount equal to
$5,395,000. Upon completion of the Yakima Premises in accordance with
the terms of Article VI of the Construction Agency Agreement, the amount
of the Security Deposit shall be reduced to $3,072,500. In each instance
the Letter of Credit shall be reissued or amended accordingly."
16. Except as specifically amended hereby, the terms and conditions of
the Lease Agreement shall be binding on Landlord and Tenant and their respective
successors and assigns, and from and after the date hereof the term "Lease"
shall mean the Lease as amended by this First Amendment to Lease Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to Lease Agreement to be duly executed under seal as of the day and year first
above written.
BALANCE OF PAGE INTENTIONALLY BLANK
5.
SIGNATURE PAGE FOR FIRST AMENDMENT TO LEASE AGREEMENT
XXXXX (PA) QRS 11-36,
a Pennsylvania Business Trust
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------
Xxxxxxx X. Xxxxx, Trustee
XXXXX (PA) QRS 12-10,
a Pennsylvania Business Trust
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------
Xxxxxxx X. Xxxxx, Trustee
ATTEST: DEL MONTE CORPORATION
A New York corporation
By: /s/ XXXXXXX X. XXXXX By: /s/ XXX X. XXXXXX
---------------------------- ------------------------------------------
Title: Real Estate Mgr. Title: Assistant Treasurer
[Corporate Seal]
