SECOND AMENDMENT TO INDUSTRIAL LEASE AGREEMENT
Exhibit
10 (e)
SECOND
AMENDMENT TO
THIS
SECOND AMENDMENT TO INDUSTRIAL LEASE AGREEMENT (this "Amendment") is
made this 29th day of June, 2007, by and between L/S 26TH STREET SOUTH,
LP, a Delaware limited partnership (Assignee of Liberty
Property/Synterra Limited Partnership, a Pennsylvania limited partnership
("Liberty/Synterra")), as Landlord, and TASTY BAKING COMPANY, a
Pennsylvania corporation, as Tenant.
W
I T N E
S S E T H:
WHEREAS,
Liberty/Synterra and Tenant entered into that certain Industrial Lease Agreement
dated May 8, 2007, as amended by that certain First Amendment to Industrial
Lease Agreement dated June 7, 2007 (collectively, the "Lease") for an
approximately 25 acre lot located within the Navy Yard, Philadelphia,
Pennsylvania, as more particularly described in the Lease;
WHEREAS,
Liberty/Synterra assigned all of its right, title and interest in and to the
Lease to L/S 26th Street South, LP, pursuant to that certain Assignment of
Industrial Lease Agreement dated June 22, 2007, and L/S 26th Street South,
LP is
now the Landlord under the Lease;
WHEREAS,
pursuant to Section 30 of the Lease, Landlord and/or Tenant have the right
to
terminate the Lease if certain conditions are not satisfied or waived within
the
time periods specified therein; and
WHEREAS,
Landlord and Tenant now desire to modify certain conditions in the Lease, as
more particularly set forth below.
NOW,
THEREFORE, in consideration of the covenants set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which
are
hereby acknowledged, and intending to be legally bound, the parties hereby
agree
as follows:
1. Capitalized
terms not otherwise defined herein shall have the meaning ascribed to them
in
the Lease.
2. The
last
grammatical sentence of Section 30(a) of the Lease is hereby deleted and
restated in its entirety as follows:
"Accordingly,
Landlord may terminate this Lease if the Agreement of Sale is not fully executed
by PAID and Landlord on or before July 17, 2007."
3. The
deadlines for the satisfaction of the conditions set forth in Section 30(e)(i)
of the Lease (respecting PAID's receipt of an "Invitation to Apply" for not
less
than $4,000,000.00 in RACP grant funding for the Project or equivalent funding
acceptable to Landlord) and 30(e)(iii) of the Lease (respecting the delivery
of
memoranda from each of the State Caucuses for their respective portions of
the
RACP grant funding) are hereby extended until July 10, 2007.
4. The
deadlines for the satisfaction of the conditions set forth in Section 30(e)(vii)
of the Lease (respecting PAID confirming that Landlord will not be required
to
construct certain rail improvements), Section 30(e)(viii) of the Lease
(respecting the granting of certain easements from PAID to Landlord), Section
30(e)(ix) of the Lease (respecting the satisfaction of certain conditions to
Landlord's acquisition of the Land and the Brig Site), Section 30(f)(i) of
the
Lease (respecting Tenant's receipt of a commitment letter from the Commonwealth
for not less than $10,000,000.00 under the Commonwealth's Machinery and
Equipment Loan Fund program) and Section 30(f)(ii) of the Lease (respecting
Tenant's receipt of a commitment from PIDC to provide not less than
$12,000,000.00 in loan financing), are each hereby extended to July 17,
2007.
5. To
the
extent that approval of the City Council of Philadelphia is required to obtain
the RACP grant or equivalent alternative funding, then in such event (i) the
deadline for the satisfaction of the condition set forth in Section 30(e)(ii)
of
the Lease (respecting the approval of City Council for the RACP grant) is hereby
extended until December 31, 2007, and (ii) if all other conditions set forth
in
Section 30 of the Lease are satisfied or waived, and for any reason the City
Council of Philadelphia does not approve the RACP grant, or alternative funding
if City Council approval is required for such funding, within the time period
specified above, then Landlord and Tenant shall each be responsible for one-half
of the contemplated amount of the RACP grant or alternative funding (i.e.,
$2,000,000.00 for each of Landlord and Tenant) to the extent such funds are
not
available due to the failure of City Council to give its approval (including
the
passage of any applicable city ordinance), and the parties shall contribute
such
funds toward the Project to be applied in the same manner as the RACP grant
funds were to have been applied.
6. Section
30(f)(iv) of the Lease is hereby deleted and restated in its entirety as
follows:
"Tenant,
Tenant's lenders and PAID and/or PIDC shall have entered into an intercreditor
agreement acceptable to the parties thereto, unless the requirement for such
agreement is waived by PAID and/or PIDC, as applicable."
Furthermore,
the deadline for the satisfaction of the condition set forth in Section
30(f)(iv) of the Lease (as modified by this Amendment) is hereby extended to
July 30, 2007.
7. Landlord
hereby waives the condition set forth in Section 30(e)(vi) of the Lease
(respecting the commitment of the Commonwealth to fund not less than $1,500,000
in the aggregate under the CBRFA and the RFA).
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8. The
parties hereby confirm that the conditions set forth in Sections 30(b), 30(d),
30(e)(iv), 30(e)(v) and 30(f)(iii) of the Lease have been satisfied or
waived.
9. Except
as
expressly modified by this Amendment, the Lease shall remain in full force
and
effect in accordance with its terms. Without limiting the generality
of the foregoing, Tenant hereby reaffirms its obligation to reimburse Landlord
for certain costs, as set forth in Section 30(i) of the Lease, upon the
termination of the Lease for failure of any of the conditions set forth in
Section 30 thereof (as such conditions have been modified by this
Amendment).
10. This
Amendment may be executed in any number of counterparts, each of which, taken
together, shall constitute one and the same instrument. Faxed or
electronically delivered signatures shall be enforceable as original signatures
against the party delivering such signature.
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(Signatures
continued on next page)
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IN
WITNESS WHEREOF, Landlord and Tenant have executed this Second
Amendment to Industrial Lease Agreement on the date first above
written.
LANDLORD:
L/S
26TH STREET SOUTH, LP
By: L/S
26th Street
South, LLC, its
General Partner
By: Liberty
Property/ Synterra Limited Partnership, its Sole Member
By: Liberty
Property
Philadelphia Navy Yard Limited
Partnership, its
General
Partner
By: Liberty
Property Philadelphia Navy
Yard
Corporation, its General Partner
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By:
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| Name: Xxxx X. Xxxxxxx | ||||
| Title: Senior Vice President | ||||
| TENANT: | ||||
| TASTY BAKING COMPANY | ||||
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By:
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| Name: | ||||
| Title: | ||||
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