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EXHIBIT 10.33
FIRST AMENDMENT To LEASE
THIS FIRST AMENDMENT TO LEASE (the "Agreement") is made effective as of
June 16, 1992, by and between FOUNTAIN ASSOCIATES I, LTD., a Florida limited
partnership ("Landlord"), and ANCHOR GLASS CONTAINER CORPORATION, a Delaware
corporation ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant entered into that certain Lease Agreement
(the "Lease") dated March 31, 1988, pursuant to which Landlord leased to Tenant
certain real property located in Hillsborough County, Florida, commonly known as
Anchor Place at Fountain Square;
WHEREAS, Landlord and Tenant now desire to modify and amend
the Lease as herein set forth;
NOW, THEREFORE, for and in consideration of the mutual covenants herein
set forth and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. Recitals. The recitals set forth above are true and correct and are
hereby incorporated into the text of this Agreement by this reference.
2. Defined Terms. All capitalized terms not defined in this Agreement
shall have the same definitions as set forth in the Lease.
3. Construction Complete. Landlord and Tenant hereby agree that
construction of the Building was substantially completed in accordance with the
terms of the Lease, that Tenant has fully accepted the Building and the
Premises, and that Landlord has no further duty or obligation under the terms
and provisions of the Lease with respect to the construction, equipping or
delivery to Tenant of the Building or the Premises.
4. Commencement Date: Term. Landlord and Tenant hereby agree that the Term
of the Lease shall be reduced so that the Term, as reduced, shall end at
midnight on June 16, 1997.
5. Surrender of Premises. The Lease is hereby modified and amended to add
the following provision:
a. At the termination of this Lease by lapse of time or otherwise,
or upon termination of Tenant's right of possession without terminating
this Lease, Tenant shall surrender possession of the Premises to Landlord
and deliver all keys to the Premises to Landlord and make known to
Landlord the combination of all locks or vaults
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then remaining in the Premises, and shall, subject to the following
subparagraphs, return the Premises and all equipment and fixtures of
Landlord therein to Landlord in as good condition as when Tenant
originally took possession, wear and tear as described below and damage
covered by insurance proceeds which insurance proceeds were received by
Landlord or used to reduce the outstanding debt on the Premises excepted,
failing which Landlord may restore the Premises and such equipment and
fixtures to such condition and Tenant shall pay the cost thereof to
Landlord on demand. Landlord and Tenant agree that it is the intent of
this Lease that Tenant return the improvements in as good a condition as
the improvements were at the beginning of the Term except for the wear and
tear that would result even if all periodic and preventative maintenance
that is expected to be performed in a first class office facility were
timely performed for the improvements.
b. At the sole option of Landlord, Tenant shall leave in place any
floor covering without compensation to Tenant, or Tenant shall remove any
floor covering and shall remove all fastenings, paper, glue, bases or
other vestiges and restore the floor surface to its previous condition, or
shall pay to Landlord upon demand the cost of restoring the floor surface
to such condition. Tenant shall also remove Tenant's furniture, machinery,
safes, trade fixtures and other items of movable personal property of
every kind and description from the Premises and restore any damage to the
Premises caused thereby, such removal and restoration to be performed
prior to the expiration of the Term or no later than three (3) days
following the earlier termination of this Lease or Tenant's right of
possession, whichever might be earlier (and upon prior written notice to
Landlord, in the event such removal occurs after termination of this Lease
or Tenant's right to possession).
c. All obligations of Tenant under this paragraph shall survive the
expiration of the Term or sooner termination of this Lease.
6. Tenant's Care. Paragraph 7(c) of the Lease is hereby amended by
deleting the phrase "No later than seven (7) day after the last day of the
Term."
7. Payment of Monthly Rental and Additional Rental. Landlord hereby
directs Tenant, and Tenant hereby agrees, to remit all Monthly Rental due on or
after the date of this Agreement by wire transfer, for receipt in the following
designated account by no later than 1:00 p.m. on the due date of each payment of
Monthly Rental, pursuant to the following wiring instructions:
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Citibank, N.A.
New York, NY
Account No. 4050-2339
ABA No. 000000000
Re: Anchor Glass Container 6/92 Operating Lease
Attn: EFL/CBL Credit -- Xxx Xxxxxxxxx, V.P.
(000) 000-0000
Landlord hereby directs Tenant until further written notice given by Landlord
(and Citicorp Leasing, Inc. for so long as Citicorp Leasing, Inc. holds an
indebtedness and thereafter by written notice given by only Landlord) (the
"Citicorp Indebtedness") secured by a mortgage on the Premises or the Building,
and Tenant hereby agrees, to remit all Additional Rental due or to be paid to
Landlord (other than the monthly administrative cost payable to the Landlord in
accordance with Exhibit G to the Lease, which amount shall be paid directly to
Landlord) on or before the due date by check to:
Citicorp Leasing, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attn: EFL/CBL Credit -- Xxx Xxxxxxxxx, V.P.
Tenant hereby agrees that all such payments of Monthly Rental and Additional
Rental shall be made as set forth above regardless of any and all claims or
rights of set-off, discount or abatement that Tenant may at any time have or
assert against Landlord, Tenant's obligation to pay Monthly Rental and
Additional Rental being a covenant independent of all of Landlord's duties and
obligations set forth in the Lease.
8. Rent Credit. Landlord and Tenant agree that all references to Rent
Credit shall be deleted in their entirety.
9. Default by Tenant. Subparagraph 9(a) shall be amended by deleting
subparagraph 9(a)(1) in its entirety and inserting the following in lieu
thereof:
(1) Tenant's failure to pay any installment of the Monthly Rental
within ten (10) days after the same becomes due and payable under the
Lease.
In addition to the events of default listed in Paragraph 9(a) of the
Lease, the following events of default are hereby added to Paragraph 9(a) as
subparagraphs (12), (13), (14) and (15):
(12) Tenant's default under any obligation of Tenant to Citicorp, a
Delaware corporation, or any of its subsidiaries, including Citicorp Leasing,
Inc., a Delaware corporation; and
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(13) Failure of Tenant at any time to maintain a Consolidated Debt to
Equity Ratio at the end of any fiscal quarter below the ratio described in that
certain Note Purchase Agreement dated as of June 28, 1991, among Tenant and the
purchasers named therein, as amended by Amendment No. 1. Copies of Section 9 of
the Note Purchase Agreements and Amendment No. 1 are attached hereto as Exhibit
"Q" and incorporated herein by reference.
(14) A Change of Control as defined below:
"Change of Control" means (A) a sale of all or substantially all of the
assets of Tenant to any entity other than Vitro Sociedad Anonima, a company
organized under the laws of the United States of Mexico ("Vitro") or a
subsidiary of Vitro or the liquidation or dissolution of the Tenant; (B) a
merger of Tenant and Tenant is not the surviving entity unless consented to in
writing by Citicorp Leasing, Inc.; (C) the failure of Vitro to own, beneficially
and of record, a majority of the issued and outstanding shares of voting stock
of the Tenant either directly or through one or more intermediate subsidiaries
of Vitro (in each case, a majority of the issued and outstanding shares of the
voting stock of which is owned, beneficially and of record, by its immediate
parent corporation); or (D) the failure of Vitro to be able to, or the
contractual cessation or surrender of the right to, designate for election a
majority of the members of the board of directors of the Tenant; provided,
however, that any pledge of voting stock of the Tenant or any such intermediate
subsidiary of Vitro by Vitro or any such intermediate subsidiary of Vitro shall
not be deemed to constitute a "Change in Control" under clause (C) or clause
(D), above, regardless of any change in the record ownership of such shares of
voting stock provided for under the provisions of a pledge agreement creating
such pledge unless and until (i) Vitro or such intermediate subsidiary, as the
case may be, ceases to be the beneficial owner of such shares of voting stock or
(ii) Vitro or such intermediate subsidiary ceases to have the right to direct
tho voting of such shares of voting stock in any election of members of the
board of directors of the Tenant, whether pursuant to a provision of any such
pledge agreement or otherwise.
(15) The Tenant shall fail to pay any principal of, premium or interest on
or any other amount payable in respect to any Debt that is outstanding in a
principal amount of at least $10,000,000.00 in the aggregate, when the same
becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt (including, without
limitation, any mortgage securing the Citicorp Indebtedness) and shall continue
after the applicable grace
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period, if any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt (including, without limitation, the
Citicorp Indebtedness) shall be declared to be due and payable or required to be
prepaid (other than by a regularly scheduled required prepayment), redeemed,
purchased or defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made.
"Debt", means and includes the aggregate amount of, without duplication:
(a) all obligations of Tenant for borrowed money; (b) all obligations of Tenant
evidenced by bonds, debentures, notes, or other similar instruments, and all
reimbursement or other obligations (contingent or otherwise) of Tenant in
respect of letters of credit, bankers' acceptances, or other financial products;
(c) all obligations of such Tenant to pay the deferred purchase price of assets
or services, exclusive of trade payables which, by their terms, are due and
payable within ninety (90) calendar days of the creation thereof; (d) all
obligations of Tenant in respect of capitalized leases; (e) all obligations or
liabilities of others secured by a lien on any asset owned by Tenant,
irrespective of whether such obligation or liability is assumed, to the extent
of the lesser of such obligation or liability or the fair market value of such
asset; and (f) any guaranties, director or indirect, of such Tenant of any debt
of another entity.
10. Landlord's Remedies. Paragraph 9(b) is hereby modified by deleting
subparagraphs (b)(1) through (b)(4), inclusive, and inserting the following:
"9(b)(1). In the event of Tenant's default or breach of the Lease as described
in Paragraph 9(a) of the Lease, due to the difficulty, inconvenience and
uncertainty of ascertaining actual damages for such default, Landlord and Tenant
hereby agree that Landlord, as Landlord's sole and exclusive remedy for such
default, shall be entitled to receive, and Tenant shall upon demand pay to
Citicorp Leasing, Inc., a Delaware corporation, the amount of twelve percent
(12%) of the existing Citicorp Indebtedness secured by a mortgage on the
Premises, which the parties agree is a fair estimation of the damages.
Notwithstanding the foregoing, Tenant shall also pay any amounts pursuant to any
liquidated damage provision contained in the Building Option Agreement dated
March 31, 1988, as amended by the First Amendment to Building Option Agreement
of even date herewith and as modified by that certain Agreement effective as of
June 16, 1992, all by and between Landlord and Tenant if the option or
Supplemental Option is not properly exercised and closed."
In addition, subparagraph 9(b)(5) shall be renumbered to 9(b)(2) and a new
9(b)(3) shall be added as follows:
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Except for the default described in paragraph 9(a)(1) above for which no
notice is required and no additional grace period is given, Tenant shall be
given a five (5) day grace period after written notice is given by Landlord to
Tenant to cure any default under the Lease before Landlord can exercise any
rights under Paragraph 9(b)(1) or 9(b)(2).
11. Hazardous Substances. The Lease is hereby modified and amended,
effective With the commencement Date of the Lease, to add the following
provision:
Tenant shall not cause or permit any Hazardous Substance to be used,
stored, generated, or disposed of on, in or about the Premises (other than
typical office supplies) in violation of applicable laws, rules and regulations,
without obtaining Landlord's prior written consent. If any Hazardous Substance
is used, stored, generated, or disposed of on, in, or about the Premises except
as permitted above, or if the Premises become contaminated in any manner as a
result of any breach of the foregoing covenant or any act or omission of Tenant
or any of its agents, employees, contractors, or invitees (all of which parties
shall be deemed to be included in the defined term, "Tenant"), Tenant shall
indemnify and hold Landlord harmless from any and all claims, demands, actions,
damages, fines, judgments, penalties, costs (including attorneys', consultants',
and experts' fees), liabilities, losses (including without limitation, any
decrease in value of the Premises, damages due to loss or restriction of
rentable or usable space, or any damages due to adverse impact on marketing of
the Building, and expenses arising during or after the term of the Lease and
arising as a result of such contamination. This indemnification includes,
without limitation, any and all costs incurred due to any investigation of the
site or any cleanup, removal, or restoration mandated by a federal, state, or
local agency or political subdivision. Without limitation of the foregoing, if
Tenant causes or permits the presence of any Hazardous Substance on, in, or
about the Premises that results in contamination, Tenant, at it. sole expense,
shall promptly take any and all necessary actions to return the Premises to the
same condition that existed prior to the presence of any such Hazardous
Substance on, in, or about the Premises. Tenant shall first obtain Landlord's
approval for any such remedial action. As used herein, the term "Hazardous
Substance" means any substance which is toxic, ignitable, reactive, or corrosive
and which is regulated by any local government, the State of Florida, or the
United States government. "Hazardous. Substance. includes any and all material
or substances which are defined as "hazardous
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waste", "extremely hazardous waste", or a "hazardous substance" pursuant to
state, federal or local governmental law. The provisions under the paragraph
shall survive the expiration or other termination of the Lease.
12. Assignment and Subletting. The first sentence of Paragraph 11 of
the Lease is hereby amended and restated so that said sentence, as amended
and restated, shall read as follows:
Tenant shall not, without the prior written consent of Landlord, which
consent may be arbitrarily withheld, assign all of this Lease; however,
Tenant may, without the prior written consent of Landlord, sublet the
unoccupied space within the Premises.
The balance of Paragraph 11 of the Lease shall remain unaltered and in full
force and effect.
13. Tenant's Insurance. Paragraph 16 of the Lease is hereby modified and
amended to provide that all insurance policies required therein shall name
Citicorp Leasing, Inc., a Delaware corporation as an additional insured and
shall otherwise meet the requirements of any first mortgage encumbering the
Premises.
14. Prime Rate. All references in the Lease to the "prime rate
announced by Southeast Bank, N.A., shall be replaced with the "Base Rate
announced publicly by Citibank, N.A. in New York, New York as its base
rate.
15. Condemnation. Paragraph 12(a) of the Lease is amended by
deleting the last eight sentences of Paragraph 12(a) beginning with the sentence
"Landlord shall exercise . . . n and ending with the sentence "In the event that
the condemnation proceeds . . ." and the following shall be inserted in lieu
thereof:
Landlord and Tenant have entered into that certain Letter Agreement
dated April 27, 1992, which Letter Agreement amends the Lease and which
Letter Agreement addresses, among other items, the understanding between
Landlord and Tenant regarding the condemnation of land and parking at the
Premises. A copy of the Letter Agreement is attached hereto as Schedule 1
and incorporated herein by reference. The parties agree that
notwithstanding any provision in the Lease to tho contrary the Tenant
shall not have the right to cancel the Lease and the rent shall not be
reduced by virtue of the condemnation of the parking spaces. The parties
also agree that notwithstanding any provision to the contrary, in the
event the design-build agreement referenced in the Letter Agreement is
entered into, then the fee to be paid to Landlord for the design and
construction of the parking deck in the amount of One Hundred Fifty
Thousand and No/100 Dollars
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($150,000.00) shall be paid one-fourth (%) at the commencement of
construction, one-half (~) over the next five months of construction, and
the remainder paid upon issuance of a certificate of occupancy for the
parking deck, or the issuance of a certificate of substantial completion,
whichever occurs first. In the event that the parties, in good faith after
using their best efforts, fail to negotiate and enter into the
design-build agreement on or before June 30, 1992, then Tenant shall pay
Landlord the amount of one Hundred Fifty Thousand Dollars ($150,000.00) on
or before August 31, 1992 in consideration of Landlord's good faith
negotiations and agreement to terminate its Option for Parking Easement in
accordance with the terms of the letter agreement and for other good and
valuable consideration, the receipt and sufficiency of which Tenant hereby
acknowledges.
16. Exhibit G. Exhibit G to the Lease is deleted in its entirety and
replaced with Exhibit G attached to this Agreement and incorporated herein by
reference.
17. No Further Modification. Except as expressly set forth herein, all
terms and provisions of the lease shall remain unaltered and in full force and
effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Agreement as of
the date set forth above.
Signed, sealed and delivered
in the presence of: FOUNTAIN ASSOCIATES I, LTD., a
Florida limited partnership
By: TWC Sixty-One, Inc., a
Florida corporation,
General Partner
Name: By: Xxxxx X. Xxxxxx
ANCHOR GLASS CONTAINER
CORPORATION
By:/s/ Xxxxxx X. Xxxxxxxx
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SCHEDULE "1"
April 27, 1992
Xx. Xxxxxx X. Xxxxxxxx
Vice President and Treasurer
Anchor Glass Container Corporation
0000 Xxxxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Dear Xxx:
This letter confirms the understanding between Anchor Glass Container
Corporation (Anchor) and Fountain Associates I, Ltd. (FAI) regarding the process
of resolving the condemnation of land and parking at Anchor Plaza. The lease
between Anchor and FAI ("the Lease") is hereby modified to accord with the terms
set forth in this letter.
It is clear to Anchor and FAI that the parking replacement provided in the
existing agreement between the parties was based on a nominal amount of land
being taken for the Northwest Expressway. At the time of the initial agreement
between the parties, it was expected that the Hillsborough County Aviation
Authority property on the other side of the highway would be used for the road
expansion. Because that has not happened and, as the result, a substantial
portion of Anchor Plaza land will be taken, the originally contemplated parking
replacement solution is unacceptable. Therefore, a parking deck must be
constructed on Anchor Plaza property to replace the parking spaces lost.
Temporary Parking
Arrangement: It is understood that Anchor needs temporary parking from the
date the current parking is taken to the date of completion of
construction of the parking deck. FAI agrees to assist Anchor
in attempting to obtain an agreement with Fountain Square
Associates (FSA) for the temporary use of the land immediately
to the south of Anchor Plaza. A separate letter of agreement
to be sent to FSA is attached as Exhibit "A" which letter will
be sent to FSA as soon as it has been signed by Anchor and
returned to FAI. The proposed use of the land by Anchor will
be proposed to be in consideration of the extinguishment by
FAI of the Option Agreement for Parking Easement and the
extinguishment by Anchor of the Land Option Agreement. The
proposed term of the temporary parking agreement will be for
18 months beginning July 1, 1992. Anchor agrees to pay the
cost of preparation of the site for temporary parking in a
manner similar to the preparation of the site north of the
Colonial Penn Building for use as temporary parking
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Xx. Xxxxxx X. Xxxxxxxx
Page Two
April 27. 1992
Temporary Parking
Arrangement:
(continued) by Chase. The cost of this preparation is estimated to be
$30,000.00. Anchor will bear the total cost of securing
the temporary parking and agrees to assume all of FAI's
obligations with regard to temporary parking, including
but not limited to, maintenance obligations, insurance
and repair of the temporary parking facility. If on or
before May 15, 1992 FSA has not agreed to allow its
property to be used for temporary parking on terms
acceptable to Anchor then Anchor will be responsible for
the provision of temporary parking.
Construction of
Parking Deck: Anchor will pay whatever costs, as further provided in the
Payment of Costs section of this letter amendment. FAI will
design and construct a parking deck together with all related
improvements, driveways, curbs, gutters, landscaping and other
parking space reconstruction ("Parking Deck") to replace
parking spaces to be taken by eminent domain. The Parking Deck
must be aesthetically compatible with the building and
facilities currently leased by Anchor from FAI and must be of
a first-class parking facility design. FAI shall coordinate
funding of the design and construction costs for the Parking
Deck from the proceeds of the eminent domain proceeding, the
lender and Anchor. It is agreed that FAI has the exclusive
right to cause the design and construction of the parking
deck. In order to set forth the rights and obligations of FAI
and Anchor with respect to the design, construction, and
funding of the Parking Deck, FAI and Anchor will enter into a
reasonable design-build agreement, which among other terms,
conditions and agreements will provide:
a) FAI will prepare preliminary plans and specifications and
budgets for the Parking Deck. The Parking Deck shall contain a
sufficient number of spaces which, when added to the usable
surface parking spaces remaining on the Anchor site after the
eminent domain proceedings, will comply with all applicable
laws and otherwise be not less than a total of 423 spaces. The
Parking deck will comply with all applicable codes, ordinances
and laws. Anchor shall have not less than fifteen
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Xx. Xxxxxx X. Xxxxxxxx
Page Three
April 27, 1992
days to review and approve, or disapprove the preliminary
plans and specifications, and budgets. If disapproved the same
shall be redesigned to accommodate Anchor's reasonable
requests FAI estimates but does not guarantee initially that
the cost to design and construct the Parking Deck is
approximately $1,831,000.00. FAI estimates but does not
guarantee design of the Parking Deck will require
approximately three months (not including any time Anchor
takes for consideration of design and the budgeting process)
and construction will require eight months from the date the
final design is approved; provided that Anchor does not delay
the process and/or provided there are no other delays beyond
FAI's control.
b) After approval of the preliminary plans and specifications,
and budgets, FAI will prepare final plans and specifications,
and final price. Anchor will have not less than fifteen days
to review and approve, or disapprove, the final plans and
specifications and final price. FAI shall guarantee the final
price, as mutually agreed by Anchor and FAI.
c) All design work shall be prepared by Thompson, Ventulett,
Xxxxxxxxx and Associates, Inc. who is qualified to design a
facility of the type and scope represented by the Parking Deck
and shall be subject to the approval of Anchor. The Parking
Deck shall be constructed by a Florida certified general
contractor qualified to construct a facility of the type and
scope represented by the Parking Deck. The cost of design and
construction shall not exceed current market rates, except
that if FAI or an affiliate thereof is the general contractor,
it shall not be entitled to any fee except that to be paid to
FAI below.
d) Notwithstanding any provision to the contrary, if FAI
negotiates in good faith and uses its best efforts to
negotiate the design-build agreement and the parties are
unable to execute such design-build agreement on or before
June 30, 1992, then FAI will receive the sum of $150,000 on or
before August 31, 1992 in consideration of FAI's negotiations
ln good faith and agreeing to terminate its Option for Parking
Easement and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by
Anchor.
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Xx. Xxxxxx X. Xxxxxxxx
Page Four
April 27, 1992
Approval of
First Union: First Union has agreed to allow use of the condemnation
proceeds for replacement parking facilities. First Union will
need to approve all provisions provided herein to the extent
such approval may be required.
Approval of
Citicorp: FAI and Anchor will use their best efforts to incorporate the
terms of this letter in connection with the proposed
refinancing by Citicorp of the First Union Mortgage.
Handling of
Condemnation
Proceeds: The condemnation authority has offered $1,343,600 for the
property being taken. There is a hearing at which the Order of
Taking xxxx be entered. Within 20 days of this hearing, the
funds offered will be deposited with the court. The FAI
condemnation attorney is making arrangements for the money to
be deposited with First Union. A letter to First Union from
FAI regarding this matter is attached as Exhibit B. Additional
condemnation proceeds will be pursued, as described later in
this letter.
Payment of Costs: As described in the First Union documents, the condemnation
proceeds may be used for replacement parking facilities. This
will necessarily include temporary parking also. Ten percent
of the proceeds must be used to fund the pursuit of additional
condemnation proceeds in accordance with the employment
agreement attached as Exhibit C. Anchor will be obligated to
fund the difference between (i) the sum of the total cost of
replacement parking facilities and costs of pursuit of
additional condemnation proceeds; and (ii) the amount of net
condemnation proceeds. Anchor will also pay any and all costs
of escrow administration and disbursement costs required by
either First Union and/or Citicorp.
Pursuit of Additional
Condemnation
Proceeds: FAI and Anchor will cooperate in an effort to obtain full
compensation for all damages to the property described in the
Lease resulting from this
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condemnation. FAI has retained Xxxx X. Xxxxx of Brigham,
Moore, Gaylord, Wilson, Uleer, Xxxxxxxx L Sechs to represent
FAI in this condemnation. FAI's employment
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Xx. Xxxxxx X. Xxxxxxxx
Page Five
April 27, 1992
Pursuit of Additional
Condemnation
Proceeds: agreement with Xxxxxxx, Xxxxx is attached as Exhibit C. Anchor
agrees to allow FAI to advance fees and costs to Xxxxxxx,
Xxxxx from the condemning authorities' initial deposit in
accordance with Xxxxxxx, Xxxxx'x employment agreement. FAI
agrees to refund to Anchor at the conclusion of the
condemnation case all sums actually refunded to FAI by
Xxxxxxx, Xxxxx pursuant to the attached employment agreement.
Anchor has retained Xxxxx Xxxx Xxxxxxxxxx of Holland Knight to
represent Anchor ln the condemnation proceeding. Anchor and
FAI are each entitled to seek reimbursement for their
attorney's fees and costs incurred in the condemnation in
accordance with Florida law.
Based on the unique nature of the relative positions of Anchor
and FAI in this matter, Anchor and FAI agree that FAI is due
compensation for its efforts in pursuit of additional
condemnation proceeds in excess of $1,343,600. Therefore,
additional condemnation proceeds in excess of $1,343,600 will
be distributed as follows:
First, until Anchor is reimbursed for all amounts
expended by Anchor for parking replacement, temporary
parking and pursuit of additional condemnation proceeds,
tSX to Anchor
and 5% to FAI.
Thereafter, 15% of additional condemnation proceeds will
be paid to FAI and 5X of such proceeds will be paid to
the bank in possession of the mortgage at the time of
payment. Such payment to the bank will be treated as a
principal reduction.
In no event shall FAI receive more than $150,000 of
those additional condemnation proceeds in excess of
$1,343,600.00.
If you agree with the terms set forth herein, please sign both execution copies
of this letter and return one to me.
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Sincerely,
Fountain Associates I, Ltd.
By: TWC Sixty-One, Inc., its general partner
By:
Xxxx Xxxxxx
President
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Xx. Xxxxxx X. Xxxxxxxx
Page Six
April 27, 1992
Agreed and accepted:
Anchor Glass Container
Corporation
By:
Xxxxxx X. Xxxxxxxx
Vice President
Date:
JW/pim
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EXHIBIT G
Anchor Glass. Container Corporation
Determination of Monthly Rental
The Monthly Rental for the Premises that Anchor Glass Container
Corporation ( Tenant ) i. required to pay to Fountain Associates I, Ltd. (the
Landlord") (in the manner provided in Paragraph 7 of the First Amendment to
Lease) in advance on the first (1st) day of each and every calendar month during
the term is equal to the Monthly Debt Service that the Landlord is paying in
arrears to the Lender who has a loan secured by the Premises and such other
financing that may be placed on the Premises from time to time which is approved
by Tenant in it. Sole and absolute discretion. Thus, each payment of Monthly
Rental in advance shall equal the Monthly Debt Service due and payable in
arrears on the same date. For the purpose, of this exhibit, the term "Monthly
Debt Service" shall include interest payments, principal amortization payments,
all other required principal payments, all tax and insurance escrow payments,
and all financing costs attributable to any and all loans on the Premises
including but not limited to points, fees, appraisal costs, legal fees,
documentary stamp tax, intangible tax, and all other costs (such as Break Costs,
Increased Costs, Reserve Costs and any other costs described in the loan
documents) normally attributable to obtaining and servicing a loan. In the event
of a foreclosure of the Citicorp Leasing, Inc. ("Citicorp") loan, then Monthly
Rental shall be equal to the amounts which would have been Monthly Debt Service
if there had been no termination of the Citicorp loan.
In addition to the Monthly Rental, tho Tenant shall pay to Landlord all
Additional Rental payments required under the term. of the Lease including as
Additional Rental a monthly administrative cost of $2,083.34 for the first five
(5) years of the Lease and the sum of $2,500.00 thereafter.
In the event that additional financing is placed on the Premises from time
to time and Tenant has approved the same then Tenant shall be responsible for
providing to Landlord any funds necessary to obtain such financing in the event
such financing is insufficient to cover the amount so required.
The following is an example of the calculation of monthly rental for the
Premium based on the loan commitment received from Citicorp:
Assume that the total loan amount is $11,000,000.00. Assume further that
the LIBOR Rate of interest, as defined in the Citicorp loan document, is 4 1/2%
per annum during the entire term of the Lease. The interest rate that Landlord
would have to pay to Citicorp would be 6 1/2% since the interest rate is two
percent (2.0%) over the LIBOR Rate. Consequently, the Monthly Debt Service is
$59,583.34, assuming that no other costs associated with the definition of
Monthly Debt Service as described above are to be
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paid. Thus the monthly rental to be paid to Landlord (in the manner provided in
Paragraph 7 of the First Amendment to Lease) by Tenant is $559,583.34. In
addition, assuming no Additional Rental other than the monthly administration
costs, the Tenant still would be required to pay as Additional Rental the sum of
$2,083.33 per month during the first five (5) years of the term of the Lease and
$2,500.00 per month thereafter. Consequently, during the first five (5) years of
the term of the Lease, Tenant would pay Monthly Rental of $61,666.34 based on
the assumptions used in the above example.
1088-290-78911.02
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