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Exhibit 10.52 (g)
SECOND LEASE MODIFICATION AND EXTENSION AGREEMENT
THIS AGREEMENT made this 18th day of December, 1986, by and between
TETERBORO ASSOCIATES, a New Jersey limited partnership having its principal
office at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Landlord") and MISS
▇▇▇▇▇, INC., having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ("Tenant").
W I T N E S S E T H:
WHEREAS, on April 1, 1975, Empire Carpet Corporation ("Empire")
and Tenant entered into a lease for premises located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (said lease and the Lease Modification and Extension
Agreement, the Amendment to Lease and all letters amending said lease
hereinafter mentioned being hereinafter referred to as the "Lease"; and
WHEREAS, by letter dated January 17, 1978, the Lease was extended
for a three-year period commencing April 1, 1978; and
WHEREAS, by letter dated February 17, 1981, the Lease was extended
for an additional five-year period commencing April 1, 1981; and
WHEREAS, by letter dated March 5, 1982, the Lease was amended to
provide that the premises initially demised include an additional 9,600 square
feet of warehouse space; and
WHEREAS, by letter dated August 15, 1983, the Lease was amended to
provide that the premises initially demised include an
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additional 21,600 square feet of warehouse space (i.e., a total of 52,800 square
feet -- the "Initial Space"); and
WHEREAS, the Lease was assigned by ▇▇▇▇▇▇▇▇▇ World Industries, Inc.
(as successor-in-interest to Empire) to Landlord by Assignment dated March 7,
1984; and
WHEREAS, by Lease Modification and Extension Agreement dated January
24, 1985, the lease was extended through March 31, 1991 and was modified in
various other respects; and
WHEREAS, by Lease Amendment dated August 8, 1985, the Lease was
amended to provide that the Initial Space include an additional 50,400 square
feet of warehouse space (the "Additional Space") (i.e., a total of 103,200
square feet) and was modified in various respects; and
WHEREAS, the parties are desirous of amending the Lease in order to
provide for the leasing by Landlord to Tenant of an additional 67,500 square
feet of space (the "Expansion Space") as designated on Exhibit A attached hereto
and made a part hereof and which space is adjacent to the Initial Space and
formerly occupied by Mohasco, Inc. and Perugina Chocolates and Confections, Inc.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained the parties do hereby agree as
follows:
1. Landlord leases to Tenant, and Tenant rents from Landlord, in
addition to the premises already demised, the
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Expansion Space. It is understood that the term of the Lease for the Expansion
Space shall commence January 1, 1987 (the "Commencement Date") and shall
terminate on December 31, 1992 (the "Expiration Date"). Tenant agrees to accept
the Expansion Space on the Commencement Date in its then "as is" condition,
Landlord having no obligation to make any restoration or repair.
2. Section 1 of the Lease is amended to provide that (i) effective
as of the Commencement Date, the phrase "the Demised Premises" shall be deemed
to mean and refer to the aggregate leased space constituting the Initial Space,
the Additional Space and the Expansion Space, except as the context otherwise
requires, and (ii) the words "6 parking spaces" appearing in line 8 of Section 1
is hereby deleted and "57 parking spaces'substituted therefor.
3. Section 2 is hereby amended to provide that the term of the Lease
is extended for a period of twenty-one (21) months so that the term of the Lease
shall expire at midnight on December 31, 1992; it being the intent of the
parties that the expiration date the term in respect of the Initial Space, the
Additional Space and the Expansion Space shall be December 31, 1992.
4. Section 4 of the Lease is hereby deleted and amended and restated
as follows:
(a) Tenant covenants to pay Landlord, without previous
demand therefor, a minimum annual rental ("Minimum Rent") with
respect to the Initial Space of $237,600.00, payable in equal
monthly installments of $19,800, based upon the payment of
$4.50 per square foot, in advance on the first day of each
month commencing on April 1, 1986, provided, however that the
Minimum Rent for the
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Initial Space shall be increased five (5%) per cent per annum
as follows:
Minimum Rent for Initial
Commencing Premises shall be
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April 1, 1987 $249,480.00
April 1, 1988 261,954.00
April 1, 1989 275,051.70
April 1, 1990 288,804.29
April 1, 1991 303,244.50
April 1, 1992 238,808.04 (pro rated
for nine
months)
(b) Tenant covenants to pay Landlord, without previous demand
therefor, a Minimum Rent with respect to the Additional Space
of $244,440.00, payable in equal monthly installments of
$20,370.00, based upon the payment of $4.85 per square foot in
advance on the first day of each month commencing on April 1,
1986; provided, however, that the Minimum Rent for the
Additional Space shall be increased five (5%) percent per
annum as follows:
The Minimum Rent for the
Commencing Additional Premises shall be
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April 1, 1987 $256,662.00
April 1, 1988 269,495.10
April 1, 1989 282,969.85
April 1, 1990 297,118.34
April 1, 1991 311,974.26
April 1, 1992 245,679.73 (pro rated
for nine
months)
(c) Tenant covenants to pay Landlord, without previous demand
therefor, a Minimum Rent with respect to the Expansion Space
of $371,250.00, payable in equal monthly installments of
$30,937.50, based upon the payment of $5.50 per square foot,
in advance on the first day of each month commencing on
January 1, 1987, provided, however that the
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Minimum Rent for the Expansion Space shall be increased five
(5%) percent per annum as follows:
The Minimum Rent for the
Commencing Expansion Space shall be
April 1, 1988 $389,812.50
April 1, 1989 409,303.12
April 1, 1990 429,768.28
April 1, 1991 451,256.69
April 1, 1992 355,364.64 (pro rated
for nine
months)
Accordingly, pursuant to the foregoing, the gross Minimum Rent
payable in respect of the Demised Premises shall be as follows, effective
January 1, 1987:
1. 1/1/87 - 3/31/87 : $ 213,322.50 = $71,107.50
2. 4/1/87 - 3/31/88 : $ 877,392.00 = 73,116.00
3. 4/1/88 - 3/31/89 : $ 921,261.60
4. 4/1/89 - 3/31/90 : $ 967,324.67 = 76,771.80
5. 4/1/90 - 3/31/91 : $1,015,690.91 = 84,640.91
6. 4/1/91 - 3/31/92 : $1,066,415.45 = 88,872.95
7. 4/1/92 - 12/31/92 : $ 839,852.41 = 93,316.93
5. Section 4A(c) of the Lease is hereby deleted and the following
substituted therefor:
(c) Tenant's proportionate share is agreed to be 78.30% based on
the ratio of square footage of the Demised Premises (170,700
sq. ft.) to the square footage of the entire building (218,000
sq. ft.).
6. On. January 7, 1987 Tenant shall deposit as security (the
"Security") with Landlord a letter of credit (the "Letter of
Credit"), issued by a bank satisfactory to Landlord, in form and substance
substantially similar to the form of letter of credit attached hereto and made a
part hereof as Exhibit "B", in the
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amount (in United States Dollars) of Seven Hundred Fifty Thousand and 00/100
Dollars ($750,000.00) during the term hereof plus a period of thirty (30) days
following the expiration or sooner termination of the term of this Lease. The
Letter of Credit shall (i) specify that it is irrevocable and, at the direction
of Landlord, transferable to Landlord's successors and assigns of Landlord's
interest under this Lease, at Tenant's sole cost and expense, (ii) be addressed
to Landlord, (iii) be payable upon each presentation of a sight draft,
accompanied by a statement signed by an authorized official of Landlord that the
amount represented by the sight draft is due and owing and has not been paid,
and (iv) be payable subject to the aggregate amount thereof from the date of
issuance up to a date which is not less than one year from the date of issuance.
Tenant shall, not later than thirty (30) days prior to the expiration of the
Letter of Credit or any replacements, substitutions or extensions thereof, as
the case may be, furnish Landlord with a new Letter of Credit in accordance with
the foregoing or an extension of the Letter of Credit then in effect. Upon an
event of default (after the giving of the applicable notice and the expiration
of the applicable grace period, if any) under this Lease or if Tenant fails to
furnish a new letter of credit or an extension as aforesaid within thirty (30)
days prior to the expiration of the Letter of Credit or any replacement or
extension thereof, Landlord, may immediately and without notice to Tenant, draw
upon the Letter of Credit and hold the proceeds thereof in accordance with the
provisions of this Paragraph.
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Landlord may use, apply or retain the whole or any part of the
Security so deposited (and the interest accrued thereon if the Letter of Credit
shall be drawn down pursuant to the provisions hereof) to the extent required
for the payment of any Minimum Rent, Additional Rent or any other sums as to
which Tenant is in default in respect of any of the terms, covenants or
conditions of this Lease, including but not limited to, any damages or
deficiency in the reletting of the Demised Premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord. In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this Lease, the Security,
including the letter of credit so deposited shall be returned to Tenant after
(a) the expiration of this Lease and (b) delivery of exclusive possession of the
entire Demised Premises to Landlord in accordance with the provisions of this
Lease.
Simultaneously with the deposit of the Security with Landlord by
Tenant, Landlord shall return to Tenant any security deposit previously held by
Landlord under this Lease.
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8. Paragraph 10 of the Lease and Paragraph 6 of the Amendment to
Lease are hereby deleted and the following substituted therefor effective
January 1, 1987:
10. Real Estate Taxes. Landlord shall remit, when due and payable,
all real estate taxes and assessments or substitutes therefor
upon, applicable or attributable or reasonably allocable to
the entire property of which the Demised Premises form a part.
Tenant agrees to pay to Landlord as Additional Rent (in
addition to that set forth in Section 4A hereof) all real
estate taxes and assessments or substitutes therefor upon,
applicable, attributable or reasonably allocable to the
Demised Premises or any part thereof for any tax year or other
tax period or partial tax year or period during the term
hereof (i.e. Tenant agrees to pay 78.30% of the total tax
▇▇▇▇ for the building and lot on which the building is
situated). Said taxes and assessments shall be paid by Tenant
to Landlord within 30 days of Tenant's receipt of a copy of
the tax ▇▇▇▇ and the invoice therefor from Landlord. Tenant
shall also pay to Landlord the amount Tenant proportional
share of all assessments, impositions and taxes made, levied
or assessed against or imposed upon any and all improvements
in, on or about the Demised Premises which were made by or on
behalf of Tenant or which in whole or part belong to Tenant.
In the event Landlord receives any tax refunds or rebates
allocable to the Demised Premises, Tenant shall be entitled to
receive that portion of such tax refund or rebate allocable to
the term of this
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Lease less a proportionate share of Landlord's reasonable
legal fees and expenses incurred relating to any tax contest
or proceeding pursuant to which said tax refund or rebate was
paid.
9. Section 16 (vii) is hereby deleted and the following substituted
therefor:
(vii) Tenant shall pay to Landlord one-half (1/2) of the amount by
which the Minimum Rent under the assignment or subletting exceeds
the Minimum Rent payable under this Lease.
10. Section 24 of the Lease is hereby amended to provide that all
notices shall be given to the Tenant at:
Miss ▇▇▇▇▇, Inc. with copies to:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ &
New York, New York 10018 Saskor, P.C.
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and to the Landlord at:
Teterboro Associates
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
11. Section 27 of the Lease is hereby deleted.
12. Tenant represents that it has dealt with no brokers in
connection with the transaction contemplated hereby and will indemnify Landlord
from the claims of any brokers arising by reason of the execution of this Second
Lease Modification and Extension Agreement on the consummation of the
transaction contemplated hereby.
13. Landlord undertakes to use all reasonable efforts to obtain from
its mortgage lender, Massachusetts Mutual Life Insurance Company, or any other
mortgage lender a non-disturbance agreement in favor of Tenant and in respect of
its leasehold hereunder.
14. Landlord represents to Tenant that the Initial Space, the
Additional Space and the Expansion Space constitute not less than 78.3% of the
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entire rentable square footage of the building located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇.
15. Except as herein amended all of the terms and conditions of the
Lease are ratified and confirmed and shall be deemed to apply to Demised
Premises, as expanded by the Expansion Space.
IN WITNESS WHEREOF, the parties have executed this agreement as of
the day and year first above written.
WITNESS TETERBORO ASSOCIATES
By ▇▇▇▇▇ REALTY CORP., GENERAL PARTNER
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ C. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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C. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Pres.
ATTEST: MISS ▇▇▇▇▇, INC.
/s/ [ILLEGIBLE] - Controller BY: /s/ SG ▇▇▇ ▇▇▇▇▇▇▇▇
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EXHIBIT B
FORM OF LETTER OF CREDIT
TETERBORO ASSOCIATES
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Re: Irrevocable and transferable Letter of Credit No.________
For U.S. $750,000.00
Gentlemen:
We hereby issue our Irrevocable and transferable Letter of Credit
No. _________ in favor of Teterboro Associates for the account of Miss ▇▇▇▇▇,
Inc.
We undertake to honor your draft or drafts at sight on us not
exceeding U.S. $750,000.00 in the aggregate when accompanied by:
Statement signed by either of Messrs. ▇▇▇▇▇▇ or ▇▇▇▇▇▇ or the
successor to either of them on letterhead of Teterboro Associates
that the amount of the accompanying draft is due and owing by Miss
▇▇▇▇▇, has not been paid to Teterboro Associates.
This Letter of Credit is valid until Jan. 30, 1993 and drafts drawn hereunder,
when accompanied by the statement referred to above, will be honored if
presented to us at our office at _______________________ on or before that date.
All drafts must be marked "Drawn under Letter of Credit No. ________
dated _____________.
There are no other conditions to this Letter of Credit. Very truly
Very truly yours,
(Name of Bank)
By /s/ Illegible
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(title)