THIRD AMENDMENT OF LEASE
Between AMAX REALTY DEVELOPMENT, INC. a Delaware corporation, and X.
XXXXXXX AND ASSOCIATES, a New Jersey corporation, collectively t/a PORT
CARTERET, a joint venture (hereinafter called "Landlord"), and DI GIORGIO
CORPORATION, a Delaware corporation (hereinafter called "Tenant"), dated this
26th day of November, 1997.
WHEREAS
A. Landlord and Tenant previously have entered into a
lease agreement, dated February 11, 1994 for the leasing of
premises in Carteret, New Jersey ("INITIAL LEASE"); and
B. The parties previously have entered into a First Amendment of
Lease, dated August 16, 1996 and a Second Amendment of Lease, dated October 30,
1996 (referred to collectively herein with the INITIAL LEASE as the "LEASE").
C. The parties hereto desire to further amend the LEASE in
certain respects;
NOW, THEREFORE, for and in consideration of the promises and covenants
contained herein, the parties hereto agree as follows:
1. The recitals set forth above are incorporated by reference herein as
though fully set forth at length.
2. All capitalized terms used in this Third Amendment of Lease and not
defined herein shall have the meanings set forth in the LEASE.
3. The provisions of this Third Amendment of Lease shall take effect as
of the Effective Date hereof (as hereinafter defined).
4. Paragraph 49 of the LEASE provides Tenant with the option to lease
Additional Lands, as defined and described therein.
5. The lands described on Exhibit "A" attached hereto and made a part
hereof are removed and omitted as constituting a portion of the Additional
Lands.
6. The lands described on Exhibit "B" attached hereto and made a part
hereof constitute the remaining Additional Lands ("Remaining Additional Lands").
7. Exhibits "A" and "B" are more particularly shown on a certain map
attached hereto and made a part hereof, as Exhibit "C".
8. Tenant hereby agrees to exercise its option to lease the Remaining
Additional Lands in accordance with the provisions hereof.
9. In all respects and matters, including but not limited to, the
payment of Taxes, the right to purchase, the right to extend the Term, the
Additional Building, the Additional Building Delivery of Possession Date, the
Additional Building Plans, the Notice of Additional Building and the Additional
Building Fixed Rent, the Remaining Additional Lands shall be deemed to be
Premises pursuant to the LEASE, in the same manner as if the Remaining
Additional Lands were included within the Premises in the INITIAL LEASE.
10. Following the execution hereof, Tenant shall not have the right to
terminate the leasing of the Remaining Additional
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Lands or cease to pay Rental on account thereof, except as provided in the LEASE
for all of the Premises.
11. Landlord, Ground Lessor and/or its designees, at any time(s), shall
have the right to improve all or any portion of the Remaining Additional Lands
as a parking facility or otherwise to "cap" all or any portion of the Remaining
Additional Lands in connection with the performance of their obligations
pursuant to Paragraph 47 of the LEASE and Tenant shall have the right to require
that Landlord improve all or any portion of the Remaining Additional Lands as a
parking facility, subject to the provisions hereof.
12. If Landlord shall notify Tenant of its intention to improve the
Remaining Additional Lands as a parking facility, or if Tenant shall require
that Landlord improve the Remaining Additional Lands as a parking facility,
subject to the provisions hereof, then and in either event, Landlord shall
submit to Tenant the proposed plans and specifications for such work, the
reasonably estimated hard and soft costs of such work and an allocation between
the hard and soft costs. Tenant shall notify Landlord within thirty (30) days
after receipt of such submission if it does not consent to the plans,
specifications and/or costs of such work, which consent shall not be
unreasonably withheld, and Tenant shall set forth in reasonable detail, the
basis for withholding its consent.
13. If Tenant shall not consent to the plans, specifications and/or
costs, the parties shall proceed diligently and in good faith to agree on the
plans, specifications and/or costs. If the parties shall fail to agree on the
plans and specifications within sixty (60) days thereafter, Landlord shall have
the right to cause the work to be performed in substantial accordance with the
most recent plans and specifications delivered to Tenant and Tenant shall
reserve its rights to contest the reasonableness of the plans and
specifications.
14. If the parties shall fail to agree on the costs of such work,
Tenant shall be free to obtain and submit to Landlord bids for hard costs only
from not more than three (3) mutually agreeable independent contractors (which
may not be an Affiliate of Tenant) (herein "Third Party Parking Lot Bids") for
the improvement of the Remaining Additional Lands in accordance with the agreed
upon plans and specifications or with the most recently submitted plans and
specifications, as the case may be. Tenant shall submit such Third Party Parking
Lot Bid(s), if at all, within sixty (60) days thereafter. Upon receipt of such
Bid(s), Landlord shall have the right to elect either to (a) match the lowest
Third Party Parking Lot Bid or (b) enter into a contract with the lowest Third
Party Parking Lot Bidder for said bid price plus a sum equal to the soft costs
and reduce its hard cost price per acre to the hard cost price charged it by
said contractor.
15. If the Remaining Additional Lands are improved as described herein,
then Tenant shall have the right to use the Remaining Additional Lands as so
improved, solely for parking and ancillary purposes.
16. Subparagraph 49(f) hereby is amended to read as follows:
"(f) Commencing on the Effective Date and continuing for the
balance of the Initial Term, or until Tenant elects to use the
Remaining Additional Lands as an improved parking facility,
the Fixed Rent to be paid pursuant to the LEASE shall be
increased by the sum of Fifty-Two Thousand and 00/100
($52,000.00) Dollars per annum, payable at the rate of Four
Thousand Three Hundred Thirty-Three and 33/100 ($4,333.33)
Dollars per month ('Remaining Additional Lands Fixed Rent')".
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17. At such time as the Remaining Additional Lands are improved as a
parking facility and used by Tenant, the Fixed Rent to be paid for the Remaining
Additional Lands ("Improved Remaining Additional Lands Fixed Rent") shall be
determined in the following manner:
The acreage of the Remaining Additional Lands, multiplied by
the cost of improvements per acre (as determined pursuant to
the provisions of this Amendment; multiplied by a rate equal
to the twenty (20) year United States Treasury Xxxx interest
rate, as of the Effective Date, plus four (4%) percentage
points; plus an amount equal to four (4%) percent of the
foregoing; plus an amount equal to the Remaining Additional
Lands Fixed Rent (Fifty-Two Thousand [$52,000] Dollars) and
the Annual Improved Remaining Additional Lands Fixed Rent per
acre shall be the Improved Remaining Additional Lands Fixed
Rent divided by the acreage of the Remaining Additional Lands.
By way of example, if the acreage of the Remaining Additional
Lands is four and thirty-four hundredths (4.34) acres; the
cost per acre is One Hundred Thousand ($100,000.00) Dollars;
the Treasury Xxxx interest rate is six and one-half (6.5%)
percent; and the Remaining Additional Lands Fixed Rent is
Fifty-Two Thousand ($52,000) Dollars; then the Improved
Remaining Additional Lands Fixed Rent shall be as follows:
4.34 x 100,000 x (6.5% + 4%) 10.5% = 45,570 + (45,570 x .04)
1,822,80 = 47,392.80 + 52,000 = 99,392.80 and the Annual
Improved Additional Lands Fixed Rent per acre shall be
$99,392.80 / 4.34 = $22,901.80.
18. Subparagraph 49(g) hereby is amended to read as follows:
"(g) At such time as Tenant desires to develop the Remaining
Additional Lands as hereinafter provided, it shall notify
Landlord, it being acknowledged that Tenant has the right to
require the construction of an additional building of like
kind ("Additional Building"), subject to the provisions
hereof, the square footage of which shall not be less than one
hundred fifty thousand (150,000) square feet and shall be
attached to the existing Building ("Notice of Additional
Building"). Following the delivery of the Notice of Additional
Building, Landlord and Tenant shall proceed diligently and in
good faith to establish an estimated Additional Building
Delivery of Possession Date (as hereinafter defined in
subparagraph 49[h]) and agree on the size, location, design,
plans, specifications, time frame and all other matters
relevant to the construction of the Additional Building
("Additional Building Plans"). If the estimated Additional
Building Delivery of Possession Date will occur after the
commencement of the sixth (6th) Lease Year, then Tenant shall
be required to exercise the first and/or the second Renewal
Terms so that the Term of the Lease following such Additional
Building Delivery of Possession Date will equal at least
fifteen (15) years. In the event Tenant is required to
exercise the first and/or the second Renewal Terms, then
concurrently with Landlord and Tenant establishing the
Additional Building Plans, Landlord and Tenant shall agree
upon the Fixed Rent to be paid during the first and/or the
second Renewal Terms, as the case may be. To the extent the
estimated Additional Building Delivery of Possession Date will
occur after the commencement of the sixteenth (16th) Lease
Year, Landlord agrees to extend the Term of the second Renewal
Term so that the Term of the lease following such Additional
Building Delivery of Possession Date
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will equal fifteen (15) years. The price per square foot of
said Additional Building, exclusive of land costs but
inclusive of all hard and soft costs in the aggregate shall
equal Thirty-Two ($32) Dollars per square foot, as such amount
may be adjusted by the percentage increase or decrease in the
Construction Index as defined in subparagraph 41(g) hereof
occurring between the date hereof and the Construction Index
for the month in which Tenant delivers to Landlord the Notice
of Additional Building, plus the costs to Landlord in the
demolition of such portion of the parking areas (including the
Frozen Foods Lands, as hereinafter defined), as may be
necessary in the construction of the Additional Building.
Landlord shall allocate the aggregate cost, determined as
provided above, between hard and soft costs, and shall so
notify Tenant within thirty (30) days of the date after which
the parties shall have agreed on the Additional Building
Plans. Should Tenant disagree with the Landlord cost estimate,
Tenant shall be free to obtain and submit to Landlord bids for
hard costs only from not more than three (3) mutually
agreeable independent contractors (which may not be an
Affiliate of Tenant) (herein "Third Party bids"). Tenant shall
submit such bid(s), if at all, within ninety (90) days of
Tenant's receipt of Landlord's cost determination. Upon
receipt of the Third Party bid(s) for the Additional Building
Plans from Tenant, Landlord shall have the right to elect to
either (a) match the lowest Third Party bid, or (b) enter into
a contract with the lowest Third Party bidder for said bid
price plus a sum equal to the soft costs as hereinabove
provided, and reduce its hard cost price per square foot to
the hard cost price charged it by said contractor. Upon
Tenant's receipt of Landlord's cost estimate, or upon
notification of Landlord's election under (a) or (b) above,
whichever is later, Tenant shall have the right to rescind its
Notice of Additional Building within thirty (30) days
thereafter upon notice to Landlord and Tenant's agreement to
reimburse Landlord for Landlord's actual costs incurred in
preparing the Additional Building Plans and the bid documents
which payment shall be made by Tenant to Landlord within
thirty (30) days of Landlord's demand therefor, accompanied by
documentation in reasonable detail, which payment shall be
deemed to constitute Additional Rental hereunder."
19. Subparagraph 49(h) hereby is added to read as follows:
"(h) It is acknowledged that if Tenant requires the
construction of an Additional Building pursuant to the
provisions of subparagraph 49(g), it may be required to lease
additional lands which presently constitute a portion of the
Lands leased by Landlord to Tenant pursuant to a lease
agreement being entered into concurrently herewith ("Frozen
Foods Lease"). It therefore is agreed that if such additional
lands are required ("Frozen Foods Lands"), then as of the
commencement of construction of the Additional Building and
concurrently with the parties amending the Frozen Foods Lease
so as to eliminate the Frozen Foods Lands from the description
of the Lands demised thereunder, the parties hereto shall
enter into an amendment of the LEASE to include the Frozen
Foods Lands within the description of the Lands demised
pursuant to the LEASE. At such time as the Frozen Foods Lands
are included within the Lands demised pursuant to the LEASE,
the Remaining Additional Lands Fixed Rent hereunder shall be
increased based on the acreage of the Frozen Foods Lands so
added, at the rate of $11,711.71 per acre per year. It is the
intention of the parties that the
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aggregate amount of the Fixed Rent to be paid to Landlord by
Tenant pursuant to the Frozen Foods Lease and pursuant hereto,
as a result of the exclusion of the Frozen Food Lands from the
Frozen Foods Lease and their inclusion in the Lease, shall
remain the same.
20. Subparagraph 49(h) of the INITIAL LEASE hereby is redesignated as
subparagraph 49(i) and is amended to read as follows:
(i) Upon delivery of possession by Landlord of the Additional
Building, as determined pursuant to subparagraphs 3(a), 3(c),
3(g) and 3(m) ("Additional Building Delivery of Possession
Date"), the Annual Fixed Rent hereunder shall be increased
("Additional Building Fixed Rent") as of the Additional
Building Delivery of Possession Date by the Annual Additional
Building Fixed Rent determined in the following manner:
The square footage of the Additional Building, based
upon outside measurements; multiplied by the cost per
square foot of the Additional Building as determined
in subparagraph 49(g) above (exclusive of the
Remaining Additional Lands); multiplied by a rate
equal to the 20-year United States Treasury Xxxx
interest rate, as of the Additional Building Delivery
of Possession Date, plus four (4) percentage points;
plus an amount equal to four (4%) percent of the
foregoing; plus an amount equal to the Remaining
Additional Lands Fixed Rent and the annual Additional
Building Fixed Rent per square foot shall be the
annual Additional Building Fixed Rent divided by the
square footage of the Additional Building. By way of
example, if the square footage of the Building is two
hundred fifty thousand (250,000) square feet; the
cost per square foot is Thirty-Two ($32) Dollars; the
Treasury Xxxx interest rate is six and one-half
(6.5%) percent; and the Remaining Additional Lands
Fixed Rent is One Hundred Four Thousand and 00/100
($104,000.00) Dollars; then the Additional Building
Fixed Rent shall be as follows:
250,000 x 32 = 8,000,000 x (6.5% + 4%) 10.5%
= 840,000 + (840,000 x .04) 33,600 =
$873,600 + $104,000 = 977,600 and the annual
Additional Building Fixed Rent per square
foot shall be 977,600 / 250,000 = 3.91.
The Additional Building Fixed Rent shall increase at
the rate of twenty-five (25(cent)) cents per square foot at
the commencement of each fifth anniversary of the Additional
Building Delivery of Possession Date, including any Renewal
Terms, if applicable.
As of the Additional Building Delivery of Possession Date,
Tenant's obligation to pay Remaining Additional Lands Fixed
Rent or Improved Remaining Additional Lands Fixed Rent, as the
case may be, shall cease and terminate."
21. It is agreed that the Commencement Date of the Frozen Foods Lease
shall constitute the Effective Date of this Third Amendment of Lease.
22. The Initial Term and the Renewal Terms of the LEASE hereby are
extended to be co-terminus with the stated terms of LEASE II.
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23. The Annual Fixed Rent to be paid pursuant to the LEASE shall remain
the same during the period from the expiration of the Initial Term, as set forth
in the INITIAL LEASE, to the expiration of the Initial Term, as extended herein.
24. Subparagraph 7(a)(iv) hereby is amended by permitting Tenant to
obtain Comprehensive Boiler and Machinery Insurance with a deductible not to
exceed Two Hundred Thousand and 00/100
($200,000.00) Dollars.
25. Subparagraph 7(a)(vii) hereby is omitted.
26. Subparagraphs 7(d) and (e) are amended so as to require Tenant to
deliver to Landlord a certificate of insurance (Accord 27) of all policies
procured by Tenant in compliance with its insurance obligations pursuant to the
LEASE.
27. Subparagraph 9(a) hereby is amended to provide that Landlord shall
be required only to repair, restore or replace non-trade fixtures and shall not
be required to repair, restore or replace trade fixtures of Tenant.
28. Subparagraph 15(f) hereby is amended by including subparagraphs
15(d) and (e) following reference to subparagraph 15(c).
29. Subparagraph 15(h) hereby is amended to permit Tenant to assign the
LEASE or to sublease the Premises to a Tenant's Affiliate.
30. Subparagraph 33(b) hereby is amended to provide that the personal
liability of Landlord and/or Ground Lessor shall apply if Landlord or Ground
Lessor shall transfer, sell or mortgage any interest in any real property now
owned or leased by Ground Lessor or Landlord.
31. Subparagraph 41(d) hereby is amended by amending the first sentence
to read as follows:
"The initial Purchase Price for the Premises, including the
Upstairs Office Space, but excluding the Remaining Additional
Lands, as of the expiration of the Fifth Lease Year shall be
Twenty-Nine Million Four Hundred Thousand and 00/100
[$29,400,000] Dollars ("Base
Purchase Price")."
32. Subparagraph 41(e) and (h) hereby are omitted and replaced by
subparagraphs 41(g) and (h) below respectively, and subparagraphs 41(f) and (g)
hereby are redesignated as subparagraphs 41(i) and (j) respectively.
33. Subparagraphs 41(e), (f), (g) and (h) hereby are added to Paragraph
41 as follows:
"(e) If the purchase shall include the Remaining Additional
Lands in its present as-is condition, the Base Purchase Price
shall be increased at the rate of One Hundred Twelve Thousand
Six Hundred ($112,600.00) Dollars per acre of Remaining
Additional Lands, plus an amount equal to the brokerage
commission which shall be due and payable in connection with
the purchase and sale of such Remaining Additional Lands.
(f) If the Remaining Additional Lands shall have been
improved as a parking facility in accordance with the
provisions of this Amendment, then in addition to the
increase in the Base Purchase Price pursuant to subparagraph
(e) above, the Base Purchase Price shall be increased by an
amount equal to the Annual Fixed Rent to be paid for the
improved Remaining Additional Lands, pursuant to the
provisions of Paragraph 49 hereof, whether or not Tenant
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shall have exercised its option to use the improved
Remaining Additional Lands, divided by nine hundred
seventy-five ten thousandths (.0975), plus an amount equal
to the brokerage commission which shall be due and payable
in connection with the purchase and sale of such Remaining
Additional Lands. For the purposes of this subparagraph
41(f), in determining the Annual Fixed Rent to be paid for
the improved Additional Lands, there shall be excluded
therefrom, the amount of Fifty-Two Thousand ($52,000)
Dollars on account of the Remaining Additional Lands Fixed
Rent.
(g) If Landlord shall have constructed an Additional Building
on the Remaining Additional Lands pursuant to the provisions
of Paragraph 49 hereof, then the Purchase Price shall be
increased by an amount equal to the lesser of (a) Thirty-Two
($32) Dollars multiplied by the gross square footage of the
Additional Building, determined by outside measurements, plus
the demolition costs referred to in Paragraph 49, increased
but not decreased by a percentage equal to the percentage of
increase determined by the lesser of: (i) the percentage of
increase in the Index, as hereinafter defined in subparagraph
41(i), between the date hereof and the Index for the second
month prior to the month in which the closing shall occur; or
(ii) the percentage of increase in the McGraw Hill's
Engineering Record Cost of Construction Index for the New
York/New Jersey area ("Construction Index") or comparable
Construction Index if said Construction Index is no longer
published, between the date hereof and the Construction Index
for the second month prior to the month in which the closing
shall occur; or (b) the cost of constructing the Additional
Building, if Tenant shall elect to have the bid process
employed as in Paragraph 49 provided.
(h) At the closing, Tenant shall pay over the Purchase Price
in full and Landlord shall convey title in accordance with the
following provisions:
(i) Landlord, at its sole cost and expense, shall
proceed and exert reasonable efforts to cause the
Premises, the Remaining Additional Lands, and
thereafter the Additional Building, if applicable, to
be resubdivided, if necessary, so as to constitute a
separate lot and closing of title shall be subject to
Landlord obtaining final, unappealable approval of
such subdivision, if applicable. If Landlord shall
not be able to obtain resubdivision and if Tenant
shall have exercised its option to purchase
hereunder, then Landlord, at its sole cost and
expense, shall cause a groundlease, condominium or
other mutually acceptable method to be employed so as
to enable Tenant to purchase the Building and
Additional Building, if applicable, in accordance
with the provisions hereof.
(ii) Said Premises, Remaining Additional Lands and
Additional Building, if applicable, shall be sold and
conveyed subject to zoning regulations, ordinances,
taxes, assessments, all easements, restrictions and
rights of way presently existing, such additional
easements, restrictions and rights of way as shall be
permitted hereunder and such other liens or
encumbrances as Tenant may have placed, permitted,
agreed or consented to be placed against the
Premises, Remaining Additional Lands and/or
Additional Building, if applicable;
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(iii) Landlord shall deliver a deed, affidavit of
title and FIRPTA affidavit in usual form. The deed
shall be bargain and sale with covenants against
Grantors' acts and shall be duly executed and
acknowledged so as to convey to Tenant fee simple
title to the Premises in accordance with the
provisions hereof;
(iv) Landlord shall have the right to utilize the
proceeds of sale to discharge or secure the release
of any lien encumbering the Premises, Remaining
Additional Lands and Additional Building, if
applicable, and to which the title is not to be
subject;
(v) The Premises, Remaining Additional Lands and
Additional Building, if applicable, shall be sold
"as-is" and the delivery and acceptance of the deed
of conveyance at the time of closing of title shall
be deemed to constitute full compliance by Landlord
of all of the terms, covenants and conditions on its
part to be performed in connection with the sale
hereunder;
(vi) If the Premises, Remaining Additional Lands
and/or Additional Building, if applicable, shall be
subject to any liens, including transfer,
inheritance, estate, franchise, license or other
similar taxes, which Landlord is obligated to
satisfy, the amount of which has not been finally
fixed, the same shall not be deemed an objection to
title, provided that the title company at the time of
closing of title, will issue or bind itself to issue
its policy which will insure Tenant against
collection of said liens and taxes from said
Premises, Remaining Additional Lands and/or
Additional Building, if applicable;
(vii) The Rental payments to be made hereunder,
including Rental on account of the Remaining
Additional Lands and Additional Building, and all
other usual adjustments shall be adjusted as of the
Closing Date, it being agreed that Tenant shall not
be entitled to a credit against the Purchase Price on
account of any payments of Rental, except as it
relates to a period subsequent to closing, or on
account or any payments for Taxes and/or insurance
premiums;
(viii) Tenant, subject to and in accordance with
Paragraph 47 of this lease, shall comply with ISRA.
Following closing, the provisions of Paragraph 47 of
this lease shall remain in full force and effect,
including any environmental claim relating to the
Premises, Remaining Additional Lands and Additional
Building, if applicable;
(ix) In the event that the Closing Date established
pursuant hereto shall fall on a Saturday, Sunday or
legal holiday, then it is agreed that the Closing
Date shall be the first business day thereafter;
(x) In the event that Tenant shall fail to close
title in accordance with the provisions hereof
following its exercise of its option to purchase,
then and in such event, said right shall cease and
terminate immediately and be of no further force and
effect;
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(xi) Tenant shall have the right to assume or take
subject to any mortgage then encumbering the
Premises, subject only to and in accordance with, the
applicable provisions, if any, of the mortgage,
provided that the outstanding principal balance of
the mortgage shall not exceed the then Purchase
Price, and provided further that Landlord, its
constituent members and all guarantors shall be
relieved and released from all obligations
thereunder. Tenant shall pay any and all assumption
fees and charges or any and all prepayment penalties,
fees and charges, if any, if Tenant does not take
subject to or assume the mortgage, provided, however,
that said prepayment penalties, or prepayment fees
and charges that Tenant shall be obliged to pay shall
not exceed those set forth on Exhibit H, and any such
excess shall be a credit against the Purchase Price,
or, in the alternative, at Tenant's election, paid by
Landlord; and
(xii) The Ground Lessor shall execute this lease to
indicate its consent to and agreement to be bound by
the provisions of this Paragraph 41."
34. Subparagraph 42(b) hereby is amended to read as follows:
"(b) In the event of a transfer of the Premises to a third
party, whether by sale, foreclosure or deed in lieu of
foreclosure, or otherwise, and such third party fails to make
any commission payment to Broker within five (5) days
following receipt of notice of non-payment, pursuant to the
commission agreement entered into between Broker and Landlord,
Tenant, upon notice from Broker (with a copy to the new owner)
of the new owner's failure to make such payment and setting
forth the amount of annual commission then due and payable to
Broker, hereby is authorized and directed by Landlord to make
monthly payments of Fixed Rent directly to Broker (at the
address set forth in the notice), until the commission then
due and payable shall have been paid. Landlord and Tenant
agree that the payment of the brokerage commission by Tenant
to Broker pursuant to this subparagraph (b) shall be in lieu
of Fixed Rent payments required pursuant to this lease and
Tenant shall not be in default pursuant to this lease by
virtue of said payment to Broker."
35. Paragraph 43 hereby is amended to read as follows:
"Tenant understands that the Premises are part of a larger
tract of land presently owned by Ground Lessor and developed
or hereafter to be developed by Landlord, known as Port
Carteret, (herein referred to as the "Industrial Park"). In
connection therewith, Tenant hereby consents to the granting
by Landlord of easements (at any time) over the Premises to
various utility companies and municipalities, provided that
said easements (except with respect to those exclusively
serving the Building and/or Additional Building) shall lie
in the set back areas (i.e., those areas provided by the
current zoning ordinance in which structures are precluded)
within the Premises and shall be relocatable at no expense
to Tenant should Tenant seek to improve said area and be
impeded as a result of such easement. Tenant consents both
to the continuation or extension of Middlesex Avenue as a
public road and to a future access road as such is shown
abutting the westerly portion of the Premises on Exhibit C,
which road may be dedicated as a public road."
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36. Tenant shall have the right to record a Memorandum of Lease in the
Middlesex County Clerk's Office, which Memorandum shall not provide any of the
economic agreements of the parties and which Memorandum shall be subject to
Landlord's consent, which shall not be unreasonably withheld, provided, however,
that prior to such filing, Tenant shall deliver to Landlord's attorneys, in
escrow a duly executed Discharge of Memorandum of Lease, which Discharge may be
released from escrow and filed of record upon the Termination or expiration of
this LEASE, as the LEASE may be extended, regardless of the reason or cause of
such termination or expiration in accordance with the provisions of the escrow
agreement entered into among the parties and the escrowee.
37. In the event of any inconsistency between the provisions of this
Third Amendment of Lease and the LEASE, the provisions of this Amendment shall
control.
38. In all other respects and matters, the LEASE shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties have set their hands and seals as of
the date first above written.
PORT CARTERET (Landlord)
By: Amax Realty Development, Inc.
By: /s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, Vice
President
X. XXXXXXX AND ASSOCIATES
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, Vice President
DI GIORGIO CORPORATION (Tenant)
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxx, Vice President
AMAX COPPER, INC., (Ground Lessor)
By: /s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx, Vice President
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Exhibits to Third Amendment of Lease
Exhibit A: Omitted Grocery Additional Lands (4.54 Acres)
Exhibit B (Grocery Lease): Remaining Additional Lands (4.34 Acres)
Exhibit C: Site Plan
