Exhibit 10.15 - Fourth Amendment, dated August 31, 2001, to Carteret grocery
warehouse lease dated as of February 11, 1994.
FOURTH AMENDMENT OF LEASE
THIS AMENDMENT OF LEASE, dated this ____ day of August, 2001, by and
between AMAX REALTY DEVELOPMENT, INC., a Delaware Corporation and X. XXXXXXX &
ASSOCIATES, a New Jersey Corporation, collectively T/A PORT CARTERET, a joint
venture (hereinafter called "Landlord") and XXXXXXXXX CORPORATION, a Delaware
Corporation, (hereinafter called "Tenant").
W H E R E A S,
A. Landlord and Tenant previously have entered into a lease agreement dated
February 11, 1994 ("Initial Lease"), for the leasing of certain lands and
improvements in Carteret, New Jersey ("Initial Lands"), and thereafter amended
by the First Amendment of Lease, dated August 16, 1996; the Second Amendment of
Lease, dated October 30, 1996; and the Third Amendment of Lease, dated November
26, 1997; collectively referred to herein as the "Lease"; and
B. The Commencement Date of the Initial Lease was February 1, 1995; and
C. The parties hereto desire to further amend the Lease in certain
respects;
NOW THEREFORE, for and in consideration of the premises and covenants
contained therein, 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 Fourth Amendment of Lease and not
defined herein shall have the meaning set forth in the Lease.
3. The provisions of this Fourth Amendment of Lease shall take effect as of
the date hereof.
4. The parties previously entered into a lease agreement, dated November
26, 1997 for certain other lands and improvements, which lease is to be amended
concurrently herewith. Said lease, as amended, is referred to herein as the
"Frozen Foods Lease".
5. Exhibit A attached hereto and made a part hereof sets forth the legal
description of the Land initially leased to Tenant, pursuant to the Initial
Lease, consisting of 31.745+/- acres.
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6. The parties acknowledge that Tenant presently is leasing Additional
Lands, consisting of 4.34+/- acres, pursuant to Paragraph 49 of the Initial
Lease, as modified by the Second Amendment of Lease, which Additional Lands are
described on Exhibit B attached hereto and made a part hereof.
7. The parties acknowledge that Tenant has delivered to Landlord a notice,
dated May 23, 2001, authorizing Landlord to develop a portion of the Additional
Lands and Initial Lands ("Improved Lands").
8. It is agreed that .993+/- acres of the Additional Lands described on
Exhibit B, hereby are omitted from the Additional Lands leased pursuant to the
Lease and are to become part of the land being leased to Tenant pursuant to the
Frozen Foods Lease ("New Frozen Foods Lands"). A legal description of said land
is attached hereto and made a part hereof as Exhibit C.
9. The Additional Lands leased pursuant to the Lease hereby are modified
further by adding thereto 2.052+/- acres of land previously leased to Tenant
pursuant to the Frozen Foods Lease, ("New Grocery Lands"). A legal description
of said additional land is attached hereto and made a part hereof as Exhibit D.
10. The total acreage of the Additional Lands leased pursuant to the Lease
as amended herein, following the exchange of land with the Frozen Foods Lease,
consists of 5.399+/- acres ("New Lease Lands"). A legal description of the New
Lease Lands is attached hereto and made a part hereof as Exhibit E.
11. It is acknowledged that Landlord has obtained subdivision approval from
the Borough of Carteret to permit the exchange of leased land described herein.
12. Landlord shall develop the Improved Lands ("Site Improvements") in
accordance with the plans attached hereto and made a part hereof as Exhibit F
("Site Improvement Plans").
13. In connection with the Site Improvements, Tenant, at its sole cost and
expense shall perform or cause to be performed, all of the work set forth on
Exhibit G attached hereto ("Tenant's Work"), which work shall be included within
"Tenant Delay" as defined in Paragraph 3(g) of the Lease.
14. The parties agree that the cost of the Site Improvements, including
related demolition costs, shall be $1,389,931.00.
15. The initial annual Fixed Rent to be paid on account of the Improved
Lands ("Improved Lands Fixed Rent") shall be determined as follows:
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(a) The square footage of the contemplated Additional Building
referred to in Paragraph 19 hereof; multiplied by the cost per square foot of
Site Improvements; multiplied by a rate equal to the 20 year United States
Treasury Xxxx interest rate as of the Improved Lands Commencement Date (as
defined herein), plus four percentage points; plus an amount equal to four (4%)
percent of the foregoing, plus an amount equal to the acreage of the Additional
Lands, reduced by the New Frozen Foods Lands, multiplied by the sum of
$11,711.71 per acre, plus an amount equal to the acreage of the New Grocery
Lands, multiplied by the sum of $11,711.71 per acre.
(b) By way of example, as of June 7, 2001, the annual Improved Lands
Fixed Rent per acre would be as follows:
162,648 x 8.55 = $1,390,640.40 x (5.52 + 4%) = 9.52% = 132,388.96 +
(132,388.96 x .04) = 5,295.56 + (4.34 - .993) = 3.34 x 11,711.71 =
39,199.09 + 2.052 x 11,711.71 = 24,032.43 = $200,916.05
(c) The initial annual Improved Lands Fixed Rent for the Improved
Lands would be $200,916.05.
16. The Improved Lands Fixed Rent shall become due and payable on a monthly
basis commencing as of the Improved Lands Commencement Date (as defined herein),
whereupon the Fixed Rent due and payable on account of the leasing of the
Additional Lands referred to in Paragraph 6 hereof, shall cease and terminate.
17. It is acknowledged that Tenant has the option to cause Landlord to
construct an Additional Building pursuant to Paragraph 49 of the Lease. If
Tenant shall exercise such option, prior to the Improved Additional Lands
Commencement Date, (pursuant to the Frozen Foods Lease), then the Improved Lands
Fixed Rent to be paid hereunder shall be reduced by fifty (50%) percent for the
period commencing on the date Landlord receives notice from Tenant of the
exercise of the option to construct the Additional Building pursuant to the
Lease until the Additional Building Delivery of Possession Date, (pursuant to
the Frozen Foods Lease).
18. The Improved Lands Commencement Date shall be the date on which the
Site Improvements to the Improved Lands are Substantially Completed.
19. Following Tenant's exercise of its option to cause Landlord to
construct the Additional Building pursuant to the Lease, Landlord shall
construct an Additional Building on the New Lease Lands and/or the Initial Lands
of not less than 162,648 square feet, in accordance with a site plan and plans
and specifications to be agreed upon between the parties.
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20. Landlord shall deliver possession of the Improved Lands pursuant to
Paragraphs 3(a), 3(c), 3(g) and 3(m) of the Lease.
21. If Tenant exercises its option to cause Landlord to construct the
Additional Building, the initial annual Fixed Rent to be paid by Tenant on
account of the Additional Building ("Additional Building Fixed Rent") shall
become due and payable on a monthly basis, commencing as of the Additional
Building Delivery of Possession Date, shall be determined in accordance with the
applicable provisions of Paragraph 49 of the Lease, including but not limited
to, Paragraphs 19 and 20 of the Third Amendment of Lease, except that the
initial cost per square foot of the Additional Building shall be reduced to
$25.11 per square foot.
22. (a) If the Additional Building shall not be constructed, the annual
Improved Lands Fixed Rent shall increase by an amount equal to $.25 multiplied
by the assumed square footage of 162,648, or $40,662 as of the commencement of
each fifth anniversary of the Improved Lands Commencement Date including during
any Renewal Terms, if applicable.
(b) If the Additional Building shall be constructed, the Additional
Building Fixed Rent shall increase at the rate of $.25 per square foot as of the
commencement of each fifth anniversary of the Additional Building Delivery of
Possession Date, including during any Renewal Terms, if applicable.
23. Tenant shall be responsible for the payment of all Additional Rent,
including Taxes, as defined in the Lease, in connection with the Additional
Lands in the same manner and to the same extent as provided for in the Lease for
the initial Premises described therein.
24. The annual Fixed Rent for the initial Building leased pursuant to the
Lease shall not change and shall remain in accordance with the applicable
provisions of the Lease.
25. All of the Improved Lands shall be used by Tenant in accordance with
the provisions of Paragraph 6 of the Lease in the same manner and to the same
extent as if it was part of the initial Premises leased pursuant to the Lease.
26. In the event that Tenant exercises its option on or before September
30, 2002, to cause Landlord to construct an Additional Building pursuant to the
Lease, then and in such event, the Term of the Lease as amended herein, shall be
extended for a period of three years and shall terminate on March 31, 2021
("Extended Initial Term").
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27. If Tenant does not exercise its option on or before September 30, 2002
to cause Landlord to construct an Additional Building pursuant to the Lease,
then and in such event, the Term of the Lease, as amended herein, shall continue
to terminate on March 31, 2018.
28. All of the respective Fixed Rent payments to be made pursuant to the
Lease as amended herein, shall continue during the Extended Initial Term, if
applicable, and shall be in the same amounts as shall be due and payable during
the last Lease Year of the initial Term, ending March 31, 2018.
29. All of the Improved Lands shall continue to be deemed part of the
Premises leased to Tenant pursuant to the Lease as herein amended, in the same
manner and to the same extent as if all of the Improved Lands were part of the
Premises leased to Tenant as of the Commencement Date of the Lease, including,
without limitation, the respective obligations of Landlord and Tenant for repair
and maintenance, the Tenant obligations of insurance and the rights of Tenant to
purchase the Premises and/or to extend the Term of the Lease.
30. (a) As of the Additional Building Delivery of Possession Date,
(pursuant to the Frozen Foods Lease), Tenant shall deliver to Landlord on
account of Security a new letter of credit or an additional letter of credit, in
accordance with the applicable provisions of Paragraph 40 of the Lease, in such
amount so that the aggregate amount of the letter(s) of credit delivered to
Landlord as Security shall be equal to two (2) months Fixed Rent.
(b) At such times as any of the Fixed Rent payments shall increase pursuant
to the Lease, or this Fourth Amendment to Lease, or any subsequent Amendment to
Lease, Tenant shall deliver to Landlord on account of Security, a new letter of
credit or an additional letter of credit, in accordance with the applicable
provisions of Paragraph 40 of the Lease, in such amount so that the aggregate
amount of the letter(s) of credit shall be equal to two (2) months Fixed Rent.
31. As of the Improved Lands Commencement Date, Tenant shall provide to
Landlord proof of insurance in accordance with the provisions of Paragraph
7(a)(i) of the Lease, insuring the Site Improvements to the Improved Lands
against physical loss or damage in the amount of $1,000,000.
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32. Paragraph 26(g) of the Lease hereby is amended to read as follows: "As
used in this lease, Permitted Mortgage(s) shall mean any Mortgage(s) made by a
Permitted Mortgagee(s), which provides for all of the following: (i)
individually, or when added to all other Permitted Mortgage(s) on the Premises
for a release or discharge of the Permitted Mortgage as a lien against the
Premises upon receipt of payment of an amounst not greater than the Purchase
Price, as set forth in Paragraph 41 including the imposition of any release or
discharge fee, but exclusive of its costs in processing such action, including
its attorneys' fees, and any prepayment penalties, fees and charges in
connection therewith; and (ii) shall be pre-payable at any time, in whole or in
part in connection with a release or discharge of the Permitted Mortgage or as a
partial release as a lien against the Premises, provided, however, that such
Permitted Mortgage may contain a prohibition on pre-payments provided such
prohibition shall not be in effect or applicable at the time Tenant may exercise
its option to purchase as set forth in Paragraph 41, and further provided any
pre-payment penalties, fees and charges that Tenant shall be obligated to pay
shall not exceed those set forth on Exhibit H to the Lease (unless Landlord
agrees to pay such excess). Except for the prepayment penalty to be paid by
Tenant pursuant to Paragraph 41 (k) (xi) of the Lease, the costs of obtaining
the discharge or release of the Permitted Mortgage, including the costs incurred
by the Permitted Mortgagee in processing such action and its attorneys' fees
shall be paid by Landlord."
33. In all other respects and matters, the Lease, as amended herein, shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused these presents to be signed by
duly authorized persons, as of the day and year first above written.
Landlord:
T/A PORT CARTERET, a joint venture
By: AMAX REALTY DEVELOPMENT, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Xxxxxxx Xxxxxxx, Vice President &
General Manager
By: X. XXXXXXX & ASSOCIATES
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Xxxxxx Xxxxxxx , Vice President
Tenant:
XXXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx, Vice President
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