Exhibit 10.14 - First Amendment, dated August 31, 2001 to Carteret frozen food
warehouse lease dated November 26, 1997
FIRST AMENDMENT OF LEASE
THIS AMENDMENT OF LEASE, dated this 31st 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
November 26, 1997 for the leasing of certain lands and improvements in Carteret,
New Jersey ("Lease");
B. The Commencement Date of the Lease was March 8, 1998; and
C. The parties hereto desire to 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 First Amendment of Lease and not
defined herein shall have the meaning set forth in the Lease.
3. The provisions of this First Amendment of Lease shall take effect as of
the date hereof.
4. The parties previously entered into a lease agreement, dated February
11, 1994 for certain other lands and improvements, which lease thereafter has
been amended from time to time and which lease is to be further amended
concurrently herewith. Said lease, as amended, is referred to herein as the
"Grocery 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 Lease,
consisting of 13.5+ acres.
6. The parties acknowledge that Tenant has delivered to Landlord "Notice of
Additional Lands", dated May 23, 2001 exercising its election to lease
Additional Lands, consisting of 8.88 acres, pursuant to Paragraph 49 of the
Lease.
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7. The parties acknowledge that Tenant has delivered to Landlord "Notice of
Additional Building", dated May 23, 2001, exercising its election to further
develop the Land and Additional Lands, pursuant to Paragraph 50 of the Lease.
8. Exhibit B attached hereto and made a part hereof sets forth the legal
description of the Additional Lands which Tenant is electing to lease hereunder.
9. It is agreed that 2.052+/- acres of the Land described on Exhibit A,
hereby are omitted from the Land leased pursuant to the Lease and are to become
part of the land being leased to Tenant pursuant to the Grocery Lease ("New
Grocery Lands"). A legal description of said land is attached hereto and made a
part hereof as Exhibit C.
10. The Land leased pursuant to the Lease hereby is modified further by
adding thereto .993+/- acres of land previously leased to Tenant pursuant to the
Grocery Lease, ("New Frozen Foods Lands"). A legal description of said land is
attached hereto and made a part hereof as Exhibit D.
11. The total acreage of the Land leased pursuant to the Lease as amended
herein, following the exchange of land with the Grocery Lease, consists of
12.441+/- acres ("New Lease Lands"). A legal description of the New Lease Lands
is attached hereto and made a part hereof as Exhibit E.
12. It is acknowledged that Landlord has obtained subdivision approval from
the Borough of Carteret to permit the exchange of leased land described herein.
13. Landlord shall improve all of the Additional Lands leased hereunder in
accordance with the plans attached hereto and made a part hereof as Exhibit F
("Improved Additional Lands Plans"). It is acknowledged that the installation of
all asphalt behind the concrete curbs on the Additional Lands shall be performed
by or on behalf of Tenant, at its sole cost and expense.
14. The parties agree that the cost of such improvements to the Improved
Additional Lands shall be $1,557,400 or $175,382.88 per acre.
15. The initial annual Fixed Rent to be paid on account of the Improved
Additional Lands ("Improved Additional Lands Fixed Rent") shall be determined as
follows:
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(a) The acreage of the Additional Lands; multiplied by the cost of
improvements per acre; multiplied by a rate equal to the 20 year United States
Treasury Xxxx interest rate as of the Additional Lands Commencement Date (as
defined herein), plus four percentage points; plus an amount equal to the
maximum annual Unimproved Additional Lands Fixed Rent to be paid pursuant to the
Lease. The annual Improved Additional Lands Fixed Rent per acre shall be the
aggregate annual Improved Additional Lands Fixed Rent divided by 8.88.
(b) By way of example, as of June 7, 2001, the annual Improved
Additional Lands Fixed Rent per acre would be as follows:
8.88 x 175,382.88 = 1,557,399.99 x .0952 = 148,264.47 + 104,000 =
$252,264.47 )8.88 = $28,408.16
16. The Improved Additional Lands Fixed Rent shall become due and payable
on a monthly basis commencing as of the Improved Additional Lands Commencement
Date (as defined herein).
17. Notwithstanding the foregoing, in the event that Tenant exercises its
option to cause Landlord to construct an Additional Building pursuant to the
Grocery Lease prior to the Additional Lands Completion Date, as hereinafter
defined, then the Improved Additional 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 Grocery Lease until the Additional
Building Delivery of Possession Date, as hereinafter defined.
18. The Improved Additional Lands Commencement Date shall be the earlier to
occur of:
(a) The date on which the improvements to the Improved Additional
Lands are Substantially Completed; or
(b) The Additional Building Delivery of Possession Date (as defined
herein).
19. Landlord shall construct an Additional Building on the New Lease Lands
consisting of approximately 99,799 square feet, in accordance with the site plan
attached hereto and made a part hereof as Exhibit G and in accordance with the
plans and specifications attached hereto and made a part hereof as Exhibit H.
20. It is acknowledged that Landlord has obtained site plan approval from
the Borough of Carteret for the aforesaid site plan of the Additional Building.
21. The parties agree that the cost of construction of the Additional
Building shall be $9,255,855.73 or $92.74 per square foot, inclusive of the cost
of demolition of existing structures and improvements.
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22. In connection with the Additional Building, Tenant, at its sole cost
and expense, shall perform or cause to be performed, all of the work set forth
on Exhibit I attached hereto ("Tenant's Work"), which work shall be included
within "Tenant Delay" as defined in Paragraph 3(g) of the Lease.
23. Landlord shall deliver possession of the Additional Building and the
Improved Additional Lands pursuant to Paragraphs 3(a), 3(c), 3(g) and 3(m) of
the Lease. The delivery of possession of the Additional Building is defined
herein as the "Additional Building Delivery of Possession Date".
24. 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.
25. The initial annual Additional Building Fixed Rent per square foot shall
be determined as follows:
(a) The square footage of the Additional Building multiplied by the
cost per square foot of construction; 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 percentage points; plus an amount equal to the
real estate commission to be paid in connection with the leasing of the
Additional Building (Brokerage Agreement provides for .25(cent) per square
foot); minus the acreage of the New Grocery Lands, multiplied by the sum of
$11,711.71 per acre; plus the acreage of the New Frozen Foods Lands, multiplied
by the sum of $11,711.71 per acre;
(b) By way of example, as June 7, 2001, the initial annual Additional
Building Fixed Rent would be as follows:
99,799 x 92.74 = 9,255,855.73 x .0952 = 881,225.17 + 24,949.75 =
906,174.92 - (2.052 x 11,711.71) = 24,032.43 = 882,142.49 + (.993
x 11,711.71) = 11,629.73 = 893,772.22.
(c) The initial annual Additional Building Fixed Rent for the
Additional Building would be $893,772.22 and the initial annual per square foot
Fixed Rent for the Additional Building would be $8.96 per square foot.
26. The annual Additional Building Fixed Rent shall increase at the rate of
25 cents 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.
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27. Tenant shall be responsible for the payment of all Additional Rent,
including Taxes, as defined in the Lease, in connection with the Additional
Lands and Additional Building in the same manner and to the same extent as
provided for in the Lease for the initial Premises described therein.
28. 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.
29. The Additional Lands and Additional Building 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 they were part of the initial Premises leased
pursuant to the Lease.
30. 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
Grocery 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").
31. If Tenant does not exercise its option on or before September 30, 2002
to cause Landlord to construct an Additional Building pursuant to the Grocery
Lease, then and in such event, the Term of the Lease, as amended herein, shall
continue to terminate on March 31, 2018.
32. 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.
33. Upon the Delivery of Possession thereof, the Additional Building and
the Additional Lands shall 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 the Additional Building and the Additional 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.
34. (a) As of the Additional Building Delivery of Possession Date, 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.
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(b) At such times as any of the Fixed Rent payments shall increase pursuant
to the Lease, or this First 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.
35. Concurrently herewith, Tenant shall provide to Landlord proof of
insurance in accordance with the provisions of Paragraph 7(a)(i) of the Lease,
insuring the initial Building and improvements against physical loss or damage
in the amount of $17,000,000.
36. As of the Additional Building Delivery of Possession Date, Tenant shall
provide to Landlord proof of insurance in accordance with the provisions of
Paragraph 7(a)(i) of the Lease, insuring the Additional Building and
Improvements to the Improved Additional Lands against physical loss or damage in
the amount of $10,500,000.
37. 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 amount 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."
38. It is acknowledged that on the Expiration Date or sooner termination of
the Term, Tenant shall have the right to remove such improvement from the
Building and/or the Additional Building as it may elect to remove, subject to
and in accordance with the provisions of Paragraph 27 of the Lease.
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39. 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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LIST OF EXHIBITS
A. Initial Land (13.5 +/- acres)
B. Additional Lands (8.88 +/- acres)
C. New Grocery Lands (2.052 +/-)
D. New Frozen Foods Lands (.993 +/- acres)
E. New Lease Lands (12.441 +/- acres)
F. Improved Additional Lands Plans
G. Additional Building Site Plan
H. Additional Building Plans & Specifications
I. Tenant Work
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