GROUND LEASE AGREEMENT
Exhibit 10.1
WHEREAS, Lessor is the record
title owner of certain tracts of unimproved land in an aggregate acreage
described on Exhibit A-1 and any subsequent amendments attached hereto and
incorporated herein. Such tracts of land located in the counties of
Xxxxxx, Xxxxx and Camp in the State of Texas shall collectively be referred to
as the “Property” hereinafter.
WHEREAS, Lessor desires to
lease the Property to Lessee, and Lessee desires to lease the Property from
Lessor to improve the Property as Lessee requires, perform services for Lessor
and to develop the Property in accordance with the terms of this
Lease.
NOW, THEREFORE, in
consideration of the covenants, conditions and agreements contained in this
Lease, Lessor and Lessee agree to the following terms and
conditions:
2. LEASED PREMISES. Lessor
leases to Lessee and Lessee leases from Lessor for the Lease Term (as defined
hereafter), in consideration for payment of the rent, and upon the terms,
conditions and provisions set forth herein the Property, improvements thereon,
if any (the “Improvements”). The Property and the Improvements are referred to
herein collectively as the “Premises, as further described in the Exhibits and
any subsequent amendments attached hereto and incorporated herein by
reference.
Lessee
has inspected the Premises and accepts its present (as-is) condition unless
expressly noted otherwise in this Lease. Neither Lessor nor any agent
has made any express or implied warranties as to the condition of the
Premises. Lessee must satisfy itself that the Premises are
physically suitable to be used as Lessee intends by independently investigating
all such matters related to the use of the Premises. Lessee agrees
that it is not relying on any warranty or representation made by Lessor,
Lessor’s agent or any broker concerning the suitability of the Premises for the
Lessee’s use.
Lessor
shall deliver possession of the Premises as of the Effective Date
hereof.
3.1 Lease
Term. This
Agreement is for an initial term of one (1) year (the “Initial Term”) and will
automatically renew for successive one (1) year terms (each a “Renewal Term”)
unless otherwise terminated in accordance with the provisions of this
Agreement. This Agreement may be terminated by either party, with or
without cause, upon thirty (30) days prior written notice to other
party.
3.2 Definition. As used in this
Lease, the word “Renewal” or “Renewals” has the following meaning: any right to
extend or renew the term of this Lease.
3.3 Renewal(s) Personal. Each
Renewal granted to Lessee in this Lease is personal to Lessee and may not be
exercised or be assigned, voluntarily or involuntarily, by or to any person or
entity other than Lessee; provided that, Lessee may freely assign, without
Lessor’s consent, any Renewal to any Affiliate (as defined below) of
Lessee. “Affiliate” means,
with respect to any individual, partnership, limited liability company,
association, corporation or other entity (each, a “Person”), any Person
that controls, is controlled by or is under common control with such Person,
together with any of its and their respective members, partners, venturers,
directors, officers, stockholders, agents, employees and spouses. A
Person shall be presumed to have control when it possesses the power, directly
or indirectly, to direct, or cause the direction of, the management or policies
of another Person, whether through ownership of voting securities, by contract,
or otherwise.
3.4 Multiple
Renewals. the Lease is automatically renewed year to year and a later
Renewal cannot be exercised unless the prior Renewal to this Lease has been so
exercised.
3.5 Effect of
Default on Renewals. Lessee shall have no right to exercise Renewal,
notwithstanding any provision in the grant of automatic Renewal to the contrary,
(i) during the time commencing from the date Lessor gives to Lessee a notice of
default pursuant to this Lease and continuing until the default alleged in said
notice of default is cured, or (ii) during the period of time commencing on the
day after a monetary obligation to Lessor is due from Lessee and unpaid (without
any necessity for notice thereof to Lessee) continuing until the obligation is
paid, or (iii) at any time after an event of default described in this Lease
(without any necessity of Lessor to give notice of such default to Lessee) until
such event of default is cured, or (iv) in the event that Lessor has given to
Lessee three or more notices of default under this Lease, where a late charge
has become payable under this Lease for each of such defaults, whether or not
the defaults are cured, during the twelve (12)-month period prior to the time
that Lessee intends to renew for an additional one year term.
3.6 Delay in
Possession. Notwithstanding said Lease Commencement Date, if for any
reason Lessor cannot deliver possession of the Premises to Lessee on said date,
Lessor shall not be subject to any liability therefor, nor shall such failure
affect the validity of this Lease or the obligations of Lessee hereunder or
extend the term hereof, but in such case, Lessee shall not be obligated to pay
rent until possession of the Premises is tendered to Lessee; provided further,
however, that if Lessor shall not have delivered possession of the Premises
within one hundred twenty (120) days from the Lease Commencement Date, Lessee
may, at Lessee's option, by notice in writing to Lessor within ten (10) days
thereafter, cancel this Lease, in which event the parties shall be discharged
from all obligations hereunder and neither party hereto shall have any duty,
obligation, responsibility or liability to the other hereunder; provided,
however, that if such written notice of Lessee is not received by Lessor within
said ten (10) day period, Lessee's right to cancel this Lease hereunder shall
terminate and be of no further force or effect.
3.7 Early
Possession. If Lessee occupies the Premises prior to said Lease
Commencement Date, such occupancy shall be subject to all provisions hereof,
such occupancy shall not advance the termination date, and Lessee shall pay rent
for such period at the initial monthly rates set forth below.
4.1 For
the Initial Term, Lessee will pay Lessor in accordance with Exhibit B-1and any
subsequent amendments, attached hereto and incorporated herein.
4.2 Renewal. Acreage and Rent for
each Renewal Term shall be in an amount as mutually agreed upon by the parties
in writing at the commencement of each Renewal Term as defined and set out in
the amended Exhibits. All other terms and conditions of this Lease
shall remain in full force and effect during any Renewal Term.
All
notices or correspondence provided for herein shall be effective only if made in
writing, personally delivered with an executed acknowledgment of receipt or
deposited in the United States mail, certified, postage prepaid, and addressed
as follows:
To
Lessor:
Pilgrim’s
Pride Corporation
0000
Xxxxxxx 000 Xxxxx
Xxxxxxxxx,
XX 00000
Attention:
Risk Management
To
Lessee:
Xxx
Xxxxxxx
0000 Xxxx
000
Xxxxxxxxx,
XX 00000
Any
notice shall be deemed delivered five (5) days after notice is mailed or, if
personally delivered, when acknowledgment of receipt is signed, as provided
above. By written notice to the other, either party may change its own mailing
address.
6.1 Notice by Lessor of Proposed
Sale. If Lessor desires to sell, transfer, assign, or convey
any of the Premises (each, a “Transfer”), Lessor
shall deliver to Lessee notice of its desire to complete such Transfer no less
than ninety (90) days prior to the intended sale date. At such time,
Lessor will notify Lessee whether such Transfer will also result in an early
lease termination date, which may be exercised in its sole discretion or the
assumption of the Lease by the new owner. In the event the Lease is
to be terminated at Transfer, Lessor will refund to Lessee the prorata portion
of the Rent for the remainder of the Lease Term and any and all Renewals for
such Premises will be cancelled.
7.1 Use. The
Premises shall be used and occupied solely and exclusively for Lessee for
agricultural purposes to grow and harvest any commodities or crops or hay as
determined by Lessee, or such other use which, in Lessor's sole
opinion and discretion, is reasonably comparable approved in writing in advance
by Lessor and for no other purpose.
a.
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Lessee
agrees that it will at all times abide by all applicable laws and rules of
the Environmental Protection Agency, the Texas (or other applicable state)
Commission on Environmental Quality, the Texas (or other applicable state)
Department of Agriculture and any other public agency concerning the
Premises and its use, storage, and disposal of hazardous chemicals, fuel
and/or oil. Lessee further agrees to abide by the
manufacturer’s direction in regards to its use, storage and disposal of
all pesticides, herbicides and other chemicals (if such chemicals are
being stored on the Premises).
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b.
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Should
Lessee fail to keep the Premises clean and free of hazards, Lessor may,
after thirty (30) days written notice, arrange for the clean up of the
littered or hazardous area. Such clean up shall be charged to
Lessee and shall be due and payable within ten (10) days of receipt of
Lessor’s notice. Lessee shall not use nor permit the use of the
Premises in any manner that will tend to create waste or a
nuisance.
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a.
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Lessor
shall deliver the Premises to Lessee clean and free of debris (“Broom
Clean”) on the Effective Date. Lessee shall notify Lessor
within thirty (30) days of the Effective Date of any issues or items of
non-compliance related to this matter and failure to do so will be
Lessee’s acknowledgement that Lessor has effectively complied with this
section and that such Premises are clean and free of
debris.
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b.
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Except
as otherwise provided in this Lease, Lessee hereby accepts the Premises in
the “as is” condition existing on the Lease Commencement Date, subject to
all applicable zoning, municipal, county and state laws, ordinances and
regulations governing and regulating the use of the Premises, and any
covenants or restrictions of record, and accepts this Lease subject
thereto and to all matters disclosed thereby and by any exhibits attached
hereto.
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a.
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Lessee
shall not, without Lessor's prior written consent, make any alterations,
improvements, additions, or Utility Installations (as defined hereafter)
in, on or about the Premises, except for nonstructural alterations not
exceeding $50,000.00 in cumulative costs during the Lease Term and any
Renewal Term(s). In any event, whether or not in excess of $50,000.00 in
cumulative cost, Lessee shall make no change or alteration to the exterior
of the building(s) comprising the Improvements without Lessor's prior
written consent. As used in this paragraph, the term “Utility
Installation” shall mean air lines, power panels, electrical distribution
systems, lighting fixtures, space heaters, air conditioning, plumbing, and
fencing. Lessor may require that Lessee remove any or all of said
alterations, improvements, additions or Utility Installations at the
expiration of the Lease Term or any Renewal Term(s), and restore the
Premises to their prior condition. Should Lessee make any alterations,
improvements, additions or Utility Installations without the prior written
approval of Lessor, Lessor may require that Lessee remove any or all of
the same.
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b.
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Any
alterations, improvements, additions or Utility Installations in, on, or
about the Premises that Lessee shall desire to make and which requires the
consent of the Lessor shall be presented to Lessor in written form, with
proposed detailed plans and specifications. If Lessor shall give its
written consent, the consent shall be deemed conditioned upon Lessee
acquiring all applicable permits to do so from appropriate governmental
agencies, the furnishing of a copy thereof to Lessor prior to the
commencement of the work and the compliance by Lessee of all conditions of
said permit in a prompt and expeditious
manner.
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c.
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Lessee
shall pay, when due, all claims for labor or materials furnished or
alleged to have been furnished to or for Lessee at or for use in the
Premises, which claims are or may be secured by any mechanics' or
materialmen's liens against the Premises or any interest therein. Lessee
shall give Lessor not less than ten (10) days' notice prior to the
commencement of any work in the Premises, and Lessor shall have the right
to post notices of nonresponsibility in or on the Premises as provided by
law. If Lessee shall, in good faith, contest the validity of any such
lien, claim or demand, then Lessee shall, at its sole expense defend
itself and Lessor against the same and shall pay and satisfy any such
adverse judgment that may be rendered thereon before the enforcement
thereof against the Lessor or the Premises, upon the condition that if
Lessor shall require, Lessee shall furnish to Lessor a surety bond
satisfactory to Lessor in an amount equal to such contested lien claim or
demand indemnifying Lessor against liability for the same and holding the
Premises free from the effect of such lien or claim. In addition, Lessor
may require Lessee to pay Lessor's reasonable attorneys' fees and costs in
participating in such action if Lessor shall decide it is in its best
interest to do so.
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d.
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Unless
Lessor requires their removal, as set forth in Paragraph 8.a. of this
Lease, all alterations, improvements, additions and Utility Installations
(whether or not such Utility Installations constitute trade fixtures of
Lessee), which may be made on the Premises, shall become the property of
Lessor and remain upon and be surrendered with the Premises at the
expiration of the term. Notwithstanding the provisions of this paragraph,
Lessee's machinery and equipment, other than that which is affixed to the
Premises so that it can be removed without material damage to the
Premises, shall remain the property of Lessee and may be removed by Lessee
subject to the provisions of Paragraph 8.a. of this
Lease.
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9.1 Lessor's
Obligation. Lessor shall indemnify, defend and hold Lessee (and
anyone claiming under Lessee), harmless from and against any loss, damage,
claim, liability, and cost (including reasonable attorneys’ fees and
disbursements) arising from (a) any default, breach or violation by Lessor
under this Lease, (b) any negligent or other tortious act or omission
of Lessor, its employees or agents with respect to the Premises, or (c) any
conditions or contamination existing prior to the Effective Date at, on or
emanating from or onto the Premises. If Lessee recovers from the
insurance carried pursuant to this Lease, Lessor is hereby released from this
indemnification with respect to such party to the extent of such
proceeds.
9.2 Lessee's
Obligation. In addition to the indemnification requirements as set forth
below in Section 34, Lessee shall indemnify, defend and hold Lessor, its
Affiliates, and their respective members, partners, venturers, directors,
officers, stockholders, agents, employees, spouses, legal representatives,
successors and assigns (collectively, “Lessor Affiliates”),
harmless from and against any loss, damage, claim, liability, and cost
(including reasonable attorneys’ fees and disbursements) arising from
(a) any default, breach or violation by Lessee under this Lease, or
(b) any negligent or other tortious act or omissions of Lessee, its
employees or agents with respect to the Premises.
Lessee
shall have the following minimum requirements on their Certificate of
Insurance.
General
Liability
Each
Occurrence $1,000,000
Products/Completed Operations
and/or $1,000,000
Professional
Liability $1,000,000
(if applicable)
General
Aggregate $2,000,000
Automobile
Liability
Combined
Single
Limit $1,000,000
Workers
Compensation Statutory
Employers’
Liability
Each
Accident $100,000
Policy
Limit $500,000
Each
Employee $100,000
Pilgrim's
Pride Corporation is to be listed as Additional Insured on General Liability and Auto
policies. A 30-day
notice of cancellation is also required. The policies shall be
endorsed waiving the issuing insurance company's rights of recovery against
Pilgrim’s Pride, whether by way of subrogation or
otherwise. Pilgrim's Pride Corporation reserves the right to modify
these requirements as deemed necessary for the risk presented to Pilgrim's Pride
Corporation.
The
certificate holder address should read as follows:
Pilgrim's Pride
Corporation
Attn: Risk Management
0000 Xxxxxxx 000 Xxxxx
Xxxxxxxxx,
XX 00000
10.2.
Lessee shall also be required to maintain Property, Fire and Extended Coverage
Insurance in an amount equal to one hundred percent (100%) of the full
replacement value of the Improvements and in an amount sufficient to reimburse
Lessee for all of its equipment, trade fixtures, inventory, fixtures and other
personal property located on or in the Premises including leasehold improvements
hereinafter constructed or installed.
10.3 Exemption of
Lessor from Liability. Unless caused by the gross negligence of Lessor,
Lessee hereby agrees that Lessor shall not be liable for injury to Lessee's
business or any loss of income or profit therefrom or for damage to the goods,
wares, merchandise or other property of Lessee, Lessee's employees, invitees,
customers, or any other person in or about the Premises, nor shall Lessor be
liable for injury to the person of Lessee, Lessee's employees, agents or
contractors, as a result of any condition of the Premises or the Building,
whether such damage or injury is caused by or results from fire, steam,
electricity, gas, water or rain, or from the breakage, leakage, obstruction or
other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures, or from any other cause in or about the
Premises, whether the said damage or injury results from conditions arising in
the Premises or in other portions of the building of which the Premises are a
part, or from other sources or places and regardless of whether the cause of
such damage or injury or the means of repairing the same is inaccessible to
Lessee.
11.1 Total Destruction. If at any
time during the term of this Lease there is damage, whether or not an insured
loss, (including destruction required by any authorized public authority), which
totally destroys the Premises, or renders the Premises unfit for the purposes
set forth herein, this Lease shall automatically terminate as of the date of
such total destruction; provided, that, Lessee shall have the right within ten
(10) days after the receipt of such notice to give written notice to Lessor of
Lessee's intention to repair such damage at Lessee's expense, without
reimbursement from Lessor, in which event this Lease shall continue in full
force and effect, and Lessee shall proceed to make such repairs as soon as
reasonably possible. If Lessee does not give such notice within such ten (10)
day period this Lease shall be canceled and terminated as of the date of the
occurrence of such damage.
11.2 Termination, Advance Payments.
Upon termination of this Lease pursuant to this paragraph, an equitable
adjustment shall be made concerning advance rent and any advance payments made
by Lessee to Lessor. Lessor shall, in addition, return to Lessee so much of
Lessee's security deposit as has not theretofore been applied by
Lessor.
11.3 Waiver.
Lessee waives the provisions of any statutes which relate to termination
of leases when leased property is destroyed and agree that such event shall be
governed by the terms of this Lease.
12.1 Real
Property Taxes. Lessor shall pay prior
to delinquency all taxes assessed against and levied upon the Premises; however,
with respect to any Property added or Improvements made by Lessee to such
Premises after the Effective Date, Lessee alone shall pay such tax. If the right
is given to pay any of the taxes, assessments or other impositions which Lessee
is herein obligated to pay either in one sum or in installments, Lessee shall
pay such accounts in one payment prior to delinquency. In no event,
however, shall Lessee be required to pay any franchise, income, inheritance,
estate, succession, and transfer or gift taxes imposed upon Lessor, or its
successors or assigns.
12.2 Personal
Property Taxes. Lessee shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all other
personal property of Lessee contained in the Premises or elsewhere. Lessee shall
cause said trade fixtures, furnishings, equipment and all other personal
property to be assessed and billed separately from the real property of
Lessor.
13. SERVICES,
UTILITIES. Services and utilities shall be furnished and the
cost borne by Lessee. If any such services are not separately metered to Lessee,
Lessee shall pay a reasonable proportion to be determined by Lessor of all
charges jointly metered with other premises. In the event of failure by Lessor
to furnish, in a satisfactory manner, any of the services and utilities to the
Premises for which Lessor is responsible, if any, Lessee may furnish the same if
Lessor has not undertaken to correct such failure within five (5) days after
written notice, and, in addition to any other remedy Lessee may have, may deduct
the amount thereof, from Monthly Rent.
14.1 Limitations
of Mortgages. Lessee shall have no right to mortgage his
leasehold estate and his interest in the Premises by mortgage or deed of
trust. No mortgagee or trustee can acquire any rights in the Premises
except as granted to Mortgagor by the Lessor.
14.2
Assignment and Subletting.
Lessee shall not voluntarily or by operation of law assign, transfer,
mortgage, sublet, or otherwise transfer or encumber all or any part of Lessee's
interest in this Lease or in the Premises, without Lessor's prior written
consent, which consent may be withheld, delayed or conditioned, in Lessor’s sole
determination. Lessor shall respond to Lessee's request for consent hereunder in
a timely manner and any attempted assignment, transfer, mortgage, encumbrance or
subletting without such consent shall be void, and shall constitute a breach of
this Lease.
14.3 No Release of
Lessee. Regardless of Lessor's consent, no subletting or assignment shall
release Lessee of Lessee's obligation or alter the primary liability of Lessee
to pay the Rent and to perform all other obligations to be performed by Lessee
hereunder. The acceptance of Rent by Lessor from any other person shall not be
deemed to be a waiver by Lessor of any provision hereof. Consent to one
assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. In the event of default by any assignee of Lessee or
any successor of Lessee, in the performance of any of the terms hereof, Lessor
may proceed directly against Lessee without the necessity of exhausting remedies
against such assignee. Lessor may consent to subsequent assignments or
subletting of this Lease with assignees of Lessee, without notifying Lessee, or
any successor of Lessee, and without obtaining its or their consent thereto and
such action shall not relieve Lessee of liability under this
Lease. Lessor may not consent to subsequent amendments or
modifications to this Lease without the prior written consent of Lessee, which
consents shall not be unreasonably withheld, delayed or
conditioned.
15.1 Defaults by
Lessee. The occurrence of any one or more of the following events shall
constitute a material default and breach of this Lease by
Lessee:
15.2 Remedies. In the event of any
such material default or breach by Lessee, Lessor may at any time thereafter,
with or without notice or demand and without limiting Lessor in the exercise of
any right or remedy which Lessor may have by reason of such default or
breach;
a.
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Terminate
Lessee's right to possession of the Premises by any lawful means, in which
case this Lease shall terminate and Lessee shall immediately surrender
possession of the Premises to Lessor. In such event Lessor shall be
entitled to recover from Lessee all damages incurred by Lessor by reason
of Lessee's default including, but not limited to, the cost of recovering
possession of the Premises; expenses of reletting, including necessary
renovation and alteration of the Premises, and reasonable attorneys' fees;
the worth at the time of award by the court having jurisdiction thereof of
the amount by which the unpaid rent for the balance of the term after the
time of such award exceeds the amount of such rental loss for the same
period that Lessee proves could be reasonably
avoided.
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b.
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Maintain
Lessee's right to possession in which case this Lease shall continue in
effect whether or not Lessee shall have abandoned the Premises. In such
event Lessor shall be entitled to enforce all of Lessor's rights and
remedies under this Lease, including the right to recover the rent as it
becomes due hereunder.
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c.
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Pursue
any other right or remedy now or hereafter available to Lessor under the
laws or judicial decisions of the State of Texas. Unpaid installments of
Monthly Rent and other unpaid monetary obligations of Lessee under the
terms of this Lease shall bear interest from the date due at the maximum
rate then allowable by law.
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15.3 Default by
Lessor. Lessor shall not be in default unless Lessor fails to perform
obligations required of Lessor within a reasonable time, but in no event later
than thirty (30) days after written notice by Lessee to Lessor and to the holder
of any first mortgage or deed of trust covering the Premises whose name and
address shall have theretofore been furnished to Lessee in writing, specifying
wherein Lessor has failed to perform such obligation; provided, however, that if
the nature of Lessor's obligation is such that more than thirty (30) days are
required for performance then Lessor shall not be in default if Lessor commences
performance within such 30-day period and thereafter diligently prosecutes the
same to completion.
16. CONDEMNATION. If the
Premises or any portion thereof are taken under the power of eminent domain, or
sold under the threat of the exercise of said power (all of which are herein
called “condemnation”), this Lease shall terminate as to the part so taken as of
the date the condemning authority takes title or possession, whichever first
occurs. If a portion of the land area of the Premises or the building of the
Premises is taken by condemnation, and such taking renders the Premises
substantially or entirely unfit for use as set forth herein, in Lessee’s
reasonable discretion, Lessee may, at Lessee's option, to be exercised in
writing only within ten (10) days after Lessor shall have given Lessee written
notice of such taking (or in the absence of such notice, within ten (10) days
after the condemning authority shall have taken possession) terminate this Lease
as of the date the condemning authority takes such possession. If Lessee does
not terminate this Lease in accordance with the foregoing, this Lease shall
remain in full force and effect as to the portion of the Premises remaining,
except that the rent shall be reduced in the proportion that the floor area of
the building taken bears to the total floor area of the building situated on the
Premises. No reduction of rent shall occur if the only area taken is that which
does not have a building located thereon. Any award for the taking of all or any
part of the Premises under the power of eminent domain or any payment made under
threat of the exercise of such power shall be the property of Lessor, whether
such award shall be made as compensation for diminution in value of the
leasehold or for the taking of the fee, or as severance damages; provided,
however, that Lessee shall be entitled to any award for loss of or damage to
Lessee's trade fixtures and removable personal property. If this Lease is not
terminated by reason of such condemnation, Lessor shall to the extent of
severance damages received by Lessor in connection with such condemnation,
repair any damage to the Premises caused by such condemnation except to the
extent that Lessee has been reimbursed therefor by the condemning authority.
Lessee shall pay any amount in excess of such severance damages required to
complete such repair.
17. BROKER'S
FEE. Lessor and Lessee represent and warrant that they have not engaged
any broker, finder or other person who would be entitled to any commission or
fees in respect of the negotiation, execution or delivery of this lease, and
Lessor and Lessee shall indemnify and hold harmless the other party against any
loss, cost, liability or expense incurred by either of them as a result of any
claim asserted by any such broker, finder or other person on the basis of any
arrangements or agreements made or alleged to have been made by or on behalf of
such party.
a.
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Lessee
and Lessor shall at any time and from time to time upon not less than ten
(10) days' prior written notice from the other party, execute, acknowledge
and deliver to the requesting party a statement written on Lessor's
estoppel certificate form reasonably acceptable to Lessor and Lessee (i)
certifying that this Lease is unmodified and in full force and effect (or,
if modified, stating the nature of such modification and certifying that
this Lease, as so modified, is in full force and effect) and the date to
which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to the knowledge of the party being
requested to deliver the statement, any uncured defaults on the part of
requesting party, or specifying such defaults if any are claimed. Any such
statement may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Premises, or any prospective assignee or sub
Lessee.
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b.
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If
Lessor desires to finance, refinance, or sell the Premises, or any part
thereof, Lessee hereby agrees to deliver to any lender or purchaser
designated by Lessor such financial statements of Lessee as may be
reasonably required by such lender or purchaser. Such statements shall
include the past three (3) years' financial statements of Lessee. All such
financial statements shall be received by Lessor and such lender or
purchaser in confidence and shall be used only for the purposes herein set
forth.
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19.
SEVERABILITY. The invalidity of any provision of this Lease as determined
by a court of competent jurisdiction, shall in no way affect the validity of any
other provision hereof.
20. INTEREST ON
PAST-DUE OBLIGATIONS. Except as expressly herein provided, any amount due
to Lessor not paid when due shall bear interest at the maximum rate then
allowable by law from the date due. Payment of such interest shall not excuse or
cure any default by Lessee under this Lease, provided, however, that interest
shall not be payable on late charges incurred by Lessee nor on any amounts upon
which late charges are paid by Lessee.
22.
WAIVERS. No waiver by Lessor or any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Lessee of
the same or any other provision. Lessor's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of Lessor's consent to
or approval of any subsequent act by Lessee. The acceptance of rent hereunder by
Lessor shall not be a waiver of any preceding breach by Lessee of any provision
hereof, other than the failure of Lessee to pay the particular rent so accepted,
regardless of Lessor's knowledge of such preceding breach at the time of
acceptance of such rent.
23. HOLDING OVER.
If Lessee, with Lessor's consent, remains in possession of the Premises
or any part thereof after the expiration of the term hereof, such occupancy
shall be a tenancy from month to month upon all the provisions of this Lease
pertaining to the obligations of Lessee, with the exception of rent which shall
be at 150% of the then current rent, but all options and rights of first
refusal, if any, granted upon the terms of this Lease shall be deemed terminated
and be of no further effect during said month to month tenancy.
24. CUMULATIVE
REMEDIES. No remedy or election hereunder shall be deemed exclusive but
shall, wherever possible, be cumulative with all other remedies at law or in
equity.
25. COVENANTS AND
CONDITIONS. Each provision of this Lease performable by Lessee shall be
deemed both a covenant and a condition.
26. BINDING EFFECT;
CHOICE OF LAW. Subject to any provisions hereof restricting assignment or
subletting by Lessee and subject to the provisions of Paragraph 14 of this
Lease, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the State of
Texas. THE
PARTIES WAIVE TRIAL BY JURY IN ANY SUCH ACTION(S) AND CONFIRM THAT THIS WAIVER
IS A MATERIAL INDUCEMENT TO THEIR BUSINESS TRANSACTIONS. For any
such action(s) related to their business transactions or enforcement of any
arbitration, the Parties submit themselves to the jurisdiction of the state or
federal courts located in Dallas, Texas.
a.
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This
Lease, at Lessor's option, shall be subordinate to any ground lease,
mortgage, deed of trust, or any other hypothecation or security now or
hereafter placed upon the real property of which the Premises are a part
and to any and all advances made on the security thereof and to all
renewals, modifications, consolidations, replacements and extensions
thereof. Notwithstanding such subordination, Lessee's right to quiet
possession of the Premises shall not be disturbed if Lessee is not in
default and so long as Lessee shall pay the rent and observe and perform
all of the provisions of this Lease, unless this Lease is otherwise
terminated pursuant to its terms. If any mortgagee, trustee or ground
lessor shall elect to have this Lease prior to the lien of its mortgage,
deed of trust or ground lease, and shall give written notice thereof to
Lessee, this Lease shall be deemed prior to such mortgage, deed of trust,
or ground lease, whether this Lease is dated prior or subsequent to the
date of said mortgage, deed of trust, or ground lease, or the date of
recording thereof.
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b.
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Lessee
agrees to execute any reasonable documents required to effectuate an
attornment, a subordination or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may
be.
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28. ATTORNEYS'
FEES. If either party brings an action to enforce the terms hereof or
declare rights hereunder, the prevailing party in any such action, on trial or
appeal, shall be entitled to reasonable attorneys' fees to be paid by the losing
party as fixed by the court.
29. LESSOR'S
ACCESS. Lessor and Lessor's agents shall have the right to enter the
Premises at reasonable times for the purpose of inspecting the same, showing the
same to prospective purchasers, lenders, or lessees, and making such
alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part as Lessor may deem necessary or desirable.
Lessor may at any time place on or about the Premises any ordinary “For Sale”
signs and Lessor may at any time during the last one hundred twenty (120) days
of the term hereof place on or about the Premises any ordinary “For Lease”
signs, all without rebate of rent or liability to Lessee.
30.
MERGER. The voluntary or other surrender of this Lease by Lessee, or a
mutual cancellation thereof, or a termination by Lessor, shall not work a
merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to Lessor
of any or all of such subtenancies.
31. QUIET
POSSESSION. Upon Lessee paying the rent for the Premises and observing
and performing all of the covenants, conditions and provisions on Lessee's part
to be observed and performed hereunder, Lessee shall have quiet possession of
the Premises for the entire term hereof subject to all of the provisions of this
Lease. The individuals executing this Lease on behalf of Lessor represent and
warrant to Lessee that they are fully authorized and legally capable of
executing this Lease on behalf of Lessor and that such execution is binding upon
all parties holding an ownership interest in the Premises.
32.
EASEMENTS. Lessor reserves to itself the right, from time to time, to
grant such easements, rights and dedications that Lessor deems necessary or
desirable, and to cause the recordation of plats and restrictions, so long as
such easements, rights, dedications, plats and restrictions do not unreasonably
interfere with the use of the Premises by Lessee. Lessee shall sign any of the
aforementioned documents upon request of Lessor and failure to do so shall
constitute a material breach of this Lease.
33.
AUTHORITY. If Lessee is a corporation, trust, or general or limited
partnership, each individual executing this Lease on behalf of such entity
represents and warrants that he or she is duly authorized to execute and deliver
this Lease on behalf of said entity. If Lessee is a corporation, trust or
partnership, Lessee shall, within thirty (30) days after execution of this
Lease, deliver to Lessor evidence of such authority satisfactory to
Lessor.
34.1 Definitions. For purposes of
this paragraph, the following terms shall be defined as set forth
herein:
a.
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The
term “Hazardous Material” shall mean include, but shall not be limited to
(i) any material, substance or waste which is or hereafter shall be
listed, regulated or defined by Applicable Law to be hazardous, acutely
hazardous, extremely hazardous, radioactive toxic, or dangerous; (ii)
asbestos or asbestos-containing materials; (iii) polychlorinated biphenyls
(PCBs); (iv) radon gas; (v) laboratory wastes; (vi) experimental products,
including genetically engineered microbes; and (vii) petroleum, natural
gas, or other petroleum product.
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b.
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The
term “Applicable Law” shall include federal, state and local statutes,
regulations, rules, ordinances, and all other governmental
requirements.
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a.
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Lessee
shall comply with Applicable Law in all respects, including, but not
limited to, (i) acquisition of and compliance with all permits, licenses,
orders, requirements, approvals, plans and authorizations which are or may
become necessary for conduct of Lessee's operations on the Premises; (ii)
compliance with all regulatory requirements relating to such operations or
the substances and equipment used therein or the emissions, emanations and
wastes generated thereby; and (iii) reporting, investigation, and
remediation of, or other response to the exposure or potential exposure,
of any person to, or the emission, discharge or other release of any
Hazardous Material into the Premises or the
environment.
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b.
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Lessee
shall promptly respond to and remedy (by removal and proper disposal or
such other methods as shall be reasonably required) to the satisfaction of
applicable governmental agencies any release or discharge of any Hazardous
Material connected with Lessee's operation or Lessee's presence on the
Premises. All such action shall be done in Lessee's name, and at Lessee's
sole cost and expense. For purposes of this paragraph (b), the term
“respond” shall include, but not be limited to, the investigation of
environmental conditions, the preparation of feasibility reports or
remedial plans, and the performance of any cleanup, remediation,
containment, maintenance, monitoring or restoration work. Any such actions
shall be performed in a good, safe, workmanlike manner and shall minimize
any impact on the businesses or operations conducted at the Premises. In
its discretion, Lessor may, but shall not be required to, enter the
Premises personally or through its agents, consultants or contractors and
perform all or any part of the response activity or remedial action which
it feels is reasonably necessary to comply with the terms of this Lease,
and shall be reimbursed for its costs thereof and for any liabilities
resulting therefrom.
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c.
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Lessee
will promptly notify Lessor of Lessee's receipt of any notice, request,
demand, inquiry or order, whether oral or written, from any government
agency or any other individual or entity relating in any way to the
presence or possible presence of any Hazardous Material on, in, under or
near the Premises or the Lessee's compliance with, or failure to comply
with, Applicable Law. Receipt of such notice shall not be deemed to create
any obligation on the part of Lessor to defend or otherwise respond to any
such notification.
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d.
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Promptly
upon discovery thereof, Lessee will notify Lessor of the discovery of any
release, discharge, or emission of any Hazardous Material or of the
existence of any other condition or occurrence which may constitute or
pose a significant presence or potential hazard to human health and safety
or to the environment, whether or not such event or discovery necessitates
any report to any other person or government
agency.
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a.
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Permit
any vehicle on the Premises to emit exhaust which is in violation of any
Applicable Law;
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b.
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Create,
or permit to be created, any sound pressure level which will interfere
with the quiet enjoyment of any real property adjacent to the Premises, or
which will create a nuisance or violate any Applicable
Law;
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c.
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Transmit,
receive, or permit to be transmitted or received, any electromagnetic,
microwave or other radiation which is harmful or hazardous to any person
or property in, on or about the Premises, or anywhere else, or which
interferes with the operation of any electrical, electronic, telephonic or
other equipment wherever located, whether on the Premises or anywhere
else;
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d.
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Create,
or permit to be created, any ground or building vibration that is
discernible outside the Premises;
and
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e.
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Produce,
or permit to be produced, any intense glare, light or heat except within
an enclosed or screened area and then only in such manner that the glare,
light or heat shall not be discernible outside the
Premises.
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34.4 Indemnification. Lessee shall
pay for all costs associated with, and defend (with attorneys reasonably
satisfactory to Lessor), indemnify and hold harmless Lessor from, claims,
damages, expenses, encumbrances, fees, fines, penalties or costs (including, but
not limited to, reasonable attorneys' fees; the costs of notice to any other
person; the costs of environmental or technical risk assessment; any cleanup or
remedial costs; the costs of any monitoring, sampling or analysis; and any
diminution in property value or losses due to non-rentability arising out of or
in any way connected with the presence of any Hazardous Material on the Premises
or Lessee's alleged violation of Applicable Law), any storage, use or
distribution of Hazardous Materials or chemicals, or “run-off” (i.e. the free
flow of chemicals, chemical run-off or refuse, or emission of chemicals in a
gaseous or non-tangible form), from the Premises to other areas of adjacent land
or land within a reasonable proximity to the Premises) that causes any loss,
damage or liability to the Lessor Affiliates or any other third party guest,
invitee, or person on, or within a reasonable area of proximity to the
Premises.
as
a result of a breach by Lessee of any of its covenants, representations or
warranties under this paragraph 34. This obligation shall not apply, if and to
the extent that (a) such claims, damages, expenses, encumbrances, fees, fines,
penalties, or costs arose solely out of conditions existing on the Premises
prior to the commencement of Lessee's first possession of the Premises or
conditions created on the Premises after Lessee ceases to occupy the Premises;
and (b) Lessee did not violate any Applicable Law or act negligently with
respect to, or otherwise contribute to, the condition or the hazard posed by the
condition.
If a
dispute arises from or relates to transactions between the Parties, the Parties
shall endeavor to settle the dispute first through direct discussions and
negotiations between a designated representative of Pilgrim’s Pride and the
other Party’s Executive Management. If the dispute cannot be settled
through direct discussions, the Parties shall endeavor to settle the dispute by
mediation. If a dispute has not been resolved within 90 days after
the written notice beginning the mediation process (or a longer period, if the
Parties agree to extend the mediation), the mediation shall terminate and the
dispute shall be settled by litigation in the State and Federal Courts serving
Dallas County, Texas or such other location as agreed upon by the
Parties.
Neither
Party will offer or provide to the employees, agents or other representatives of
the other Party any favors, gratuities, gifts, payments, employment or anything
of value, nor enter any other business transactions which might create a
conflict of interest, whether or not in an attempt to influence such person’s
administration of the provisions of this Agreement or to otherwise gain unfair
advantage individually and/or relative to competing suppliers or
vendors.
Additionally,
each Party will immediately report to the other Party any requests made for
favors, gratuities, gifts, payments, or anything of value by employees, agents
or other representatives of such Party or any employment relationships or
business transactions between the Parties and/or their employees, agents or
other representatives which might create any conflict of interest, and will
cooperate with respect to any inquiry or investigation being conducted related
to such activities or alleged activities. Pilgrim’s Pride has
established its PRIDE Line with the toll-free telephone number 0-000-000-0000 to
report any unethical conduct.
Lessee
shall keep accurate books of account and records covering all transactions
involving the provisions of this Agreement. Pilgrim’s Pride, or its
authorized representatives, shall have the right, during normal business hours,
to examine such books and records to the extent necessary to determine Lessee’s
compliance with the provisions of this Agreement. All such books and
records shall be kept available during the term of this Agreement and in any
case for at least three (3) years after their creation.
The
parties hereto have executed this Lease as of the date first above set
forth.
LESSOR: PILGRIM’S PRIDE
CORPORATION
By:
Name:
Title:
LESSEE: XXX XXXXXXX d/b/a XXX XXXXXXX
FARMS
By:
Name:
Title:

Exhibit
A-1
January
10, 2008
To: Xxx
Xxxxxxx
From: Xxx
Xxxxxxx
Subject: Land
Lease
Request a
bid on per acre basis for the following listed 1731 acres as listed
below:
Property Acres
Xxxxxx 400
Xxxxxx 400
Farm
#1 135
Xxxxxx/TE 00
Xxxx
#0 00
Xxxxx 00
Xxxx
#0 125
Union 135
Alexander 000
Xxxx
Xxxx 000
Xxxx
#00 00
Xxxx
#00 26
Farm
#66 30
Total: 1,731
Please
fax or email bid back to Xxx
Xxxxxxx: Fax: 000-000-0000
Email:
xxxxx@xxxxxxxxxxxxx.xxx
Xxx
Xxxxxxx
Xx.
Division Vice President
Case Ready
Pilgrim’s Pride
Corporation
X.X. Xxx 00
Xxxxxxxxx , XX 00000
(
903 ) 434 - 1000
Exhibit
B-1
Rent.
Subject
to adjustment, if any, Lessee agrees to pay to Lessor, without offset or
reduction, payment for the Premises, rent (“Rent”) at the initial rate of $16.00
per acre for a total annual aggregate Rent of $27,696.00. Such Rent
shall be required to be paid by Lessee to Lessor in full on or before February
15, 2008. In the event of an increase in Rent for any Renewal Term,
Lessee shall be required to pay said increased Rent in full on or before the
last day of the then existing Lease Term.
Late Payments. In
the event Lessor fails to receive any Rent payment within ten (10) days after
the date the same is due, a late payment equal to ten percent (10%) of the
annual Rent due to Lessor shall be charged to Lessee
Additional
Consideration. In addition to the payment of Rent, as part of
the consideration for this Lease as an additional rent, Lessee covenants and
agrees to bear, pay and promptly discharge as they become due and before
delinquency all taxes (other than real estate property taxes, which shall borne
by Lessor), charges, license fees, or similar extraordinary charges due and
payable because of Lessee’s leasehold interest in the
Premises. Lessee has the right in good faith to contest such taxes,
assessments, license fees or charges and is obligated to pay such contested
amount during the contest, plus any penalties and interest imposed if and when
the amount is finally determined to be due.