LEASE AGREEMENT
Exhibit 10.2
LEASE AGREEMENT (this “Lease”) dated December 29, 2004, between The Chefs’ Warehouse Leasing
Co., LLC, a New York limited liability company with an address at 0000 Xxxxx Xxxxxx, Xxxxx, Xxx
Xxxx 00000 (“Landlord”) and Dairyland USA Corporation, a New York corporation with an address at
0000 Xxxxx Xxxxxx, Xxxxx, Xxx Xxxx 00000 (“Tenant”).
1. BASIC LEASE PROVISIONS
1.1. Leased Premises. Landlord owns the real property at 0000 Xxxxx Xxxxxx, Xxxxx,
Xxx Xxxx 00000 (the “Property”). Landlord hereby leases to Tenant, and Tenant leases from
Landlord, the Property and building located thereon (the “Building,” and collectively with the
Property, the “Premises”). The Premises includes the land upon which the Building stands and any
part or parts thereof utilized for parking, landscaped areas or other areas or improvements used in
connection with the Building, and the Building.
1.2. Term. This Lease shall have a term of ten years beginning on December 29, 2004
(the “Commencement Date”), and ending December 31, 2014 (the “Term”). Each “Lease Year” shall
commence on December 1 and end on December 31, with the exception of the First Lease Year which
shall begin on the date Tenant takes occupancy of the Premises.
1.3. Condition of Premises. Landlord shall deliver, and Tenant shall accept, the
Premises in “as-is” condition. Tenant acknowledges that, prior to the date hereof, Tenant has
inspected the Premises, is acquainted with its condition and accepts the Premises in its present
condition.
2. RENT
2.1. Rent. Rent shall accrue hereunder from the first day of the Term. Tenant shall
pay Landlord base rent at the annual rate of $950,000, subject to cumulative annual
increases effective the first day of each Lease Year of 3.5% (“Base Rent”). The Base Rent plus
the “Additional Rent” (defined in Section 2.2 below) together shall constitute the “Rent.” Base
Rent is payable by Tenant in advance, in equal monthly installments as indicated above. All
monthly installments of Base Rent shall be due and payable, without demand and without set-off, on
the first day of each calendar month during the Term. Base Rent due for any partial month shall be
prorated based on the actual number of days in the month in question.
2.2. Additional Rent. In addition to Base Rent, Tenant shall pay, as “Additional
Rent,” (i) all Taxes (defined in Section 5.1 below), (ii) Landlord’s hazard, liability or other
insurance premiums, (iii) maintenance charges and all other costs and expenses associated with the
operation of the Premises, including but not limited to those costs and expenses related to
Tenant’s garbage removal and snow removal for Tenant’s parking and walk areas, and (iv) electric,
gas and water charges. Landlord shall have the same remedies for non-payment of Additional Rent as
Landlord has for non-payment of Base Rent. If not otherwise provided for herein, any Additional
Rent payable to Landlord under applicable provisions of this Lease shall be paid within 20 days of
demand. It is the parties’ intention and expectation that, for all purposes, this shall be a
“triple net” lease.
2.3. Payment. On signing this Lease, Tenant shall pay Landlord $N/A, representing the
proportionate Base Rent for the two days of the month of December, 2004. Tenant shall pay Landlord
all amounts it is required to pay to Landlord hereunder, whether for Rent or otherwise, at the
place designated for the delivery of notices to Landlord pursuant to Section 17.
3. USE
(a) The Premises shall be used as a warehouse and wholesale distribution facility in
connection with Tenant’s specialty food distribution business, with ancillary administrative and
executive offices, and for no other purpose.
(b) Tenant shall not use or occupy the Premises in any manner which in the reasonable judgment
of Landlord would (i) violate any laws or regulations of public authorities or other Requirements
(defined below), (ii) make void or voidable any insurance policy then in force with respect to the
Building or (iii) increase the insurance rate for the Building or any property located therein to
an amount great than the rate in effect prior to the commencement of Tenant’s occupancy.
(c) Tenant shall not at any time use or occupy the Premises in violation of (i) the
certificate of occupancy or (ii) any special permit issued for the Building, Tenant’s portion
thereof or Tenant’s use of the Premises.
4. REQUIREMENTS
4.1. Compliance with Requirements of Law. Tenant currently is in compliance with and
shall be responsible for maintaining compliance with requirements of all laws, including
environmental laws, rules, regulations, ordinances, orders and licenses, whether enacted prior to
or after the date hereof (“Requirements”) of all state, federal, municipal and local governments
and any direction of any public officer pursuant to law (each a “Governmental Authority”) with
respect to or arising out of Tenant’s conduct of its business and the use or manner of use of the
Premises. Tenant shall not use the Premises for any illegal purpose or for any purpose for which
all necessary permits, licenses or authorizations have not validly been issued in accordance with
applicable Requirements. Tenant shall obtain and at all times maintain in good standing all
licenses, permits or authorizations in accordance with all Requirements which are necessary to
Tenant’s conduct of its business at the Premises (“Permits”).
4.2 Abatement of Nuisances. Tenant shall at its expense comply with all Requirements
requiring the correction, prevention and abatement of nuisances connected with Tenant’s use or
occupancy of the Premises.
5. TAXES
5.1. Definitions. As used herein, “Taxes” shall mean the real estate taxes,
assessments (special or otherwise), sewer rents, rates and charges, and any other governmental
charges, general, specific, ordinary or extraordinary, foreseen or unforeseen, levied on a calendar
year or fiscal year basis against the Real Property. If at any time during the Term the method of
taxation prevailing at the date hereof shall be altered so that there shall be levied, assessed or
imposed in lieu of, or as an addition to, or as a substitute for, the whole or any part of the
taxes, levies, impositions or charges now levied, assessed or imposed on all or any part of the
Real Property (i) a tax, assessment, levy, imposition or charge based upon the rents received by
Landlord, whether or not wholly or partially as a capital levy or otherwise, (ii) a tax,
assessment, levy, imposition or charge measured by or based in whole or in part upon all or any
part of the Real Property and imposed on Landlord, (iii) a license fee measured by the rent payable
by Tenant to Landlord or (iv) any other tax, levy, imposition, charge or license fee however
described or imposed, then all such taxes, levies, impositions, charges or license fees or any part
thereof, so measured or based, shall be deemed to be Taxes.
5.2. Payment of Taxes.
(a) Tenant shall pay any and all Taxes levied or assessed against the Premises. Landlord
shall provide Tenant copies of the tax bills, and Tenant shall pay to Landlord or directly to the
taxing authority (as instructed by Landlord) the amount shown on such bills within ten days of
receipt. If Landlord requests, on the first day of each month, in addition to and together with
the monthly installment of Base Rent, Tenant shall pay Landlord on account of
Tenant’s Share of future increases in Taxes an amount equal to 1/12 of the amount shown on the
most recent tax bills, subject to adjustment for subsequent increases in Taxes. Landlord’s failure
to furnish the tax bills shall not affect Tenant’s obligation to pay Taxes.
(b) Taxes shall be prorated between Landlord and Tenant to the extent that the Lease
commencement and termination dates do not correspond to the particular fiscal year for the
imposition and payment of Taxes. The obligations of Landlord and Tenant under the provisions of
this Article shall survive the expiration or any sooner termination of the Term.
6. TENANT’S MAINTENANCE AND REPAIRS
6.1. Tenant’s Maintenance. Tenant shall maintain and keep the entire Premises in good
order and repair, at Tenant’s sole cost and expense, and shall perform all repairs it is required
to make hereunder promptly. Tenant’s responsibility hereunder shall include structural repairs,
including but not limited to roof leaks, roof replacement, and maintenance, repair and replacement
of all doors, windows and garage doors in Tenant’s portion of the Premises. At the end of the
Term, Tenant shall deliver the Premises to Landlord in good order and condition, reasonable wear
and tear excepted, except in the case of fire or other casualty permitting Landlord the right to
terminate this Lease.
6.2. Landlord’s Right to Repair. If within 30 days after the receipt of notice from
Landlord, Tenant fails to make the repairs it is required herein to make or fails to begin to
complete same with due diligence, Landlord may (but shall not be obliged to) make the necessary
repairs, and the expense incurred by Landlord in that connection shall be payable as Additional
Rent. Landlord also may complete, at Tenant’s expense without notice to Tenant, any and all
repairs which Tenant is herein obligated to make which Landlord believes to be of an emergency
nature requiring immediate attention.
7. ALTERATIONS
7.1. No Right to Alter. Tenant shall have no right to make any alteration, addition,
repair or improvement to the Premises without the prior written consent of the Landlord, which
shall not be unreasonably withheld or delayed.
7.2. Alteration Permits. All alterations and improvements made by Tenant shall
conform to all Requirements. At Tenant’s request and at its sole cost, Landlord shall apply for or
join with Tenant in applying for all such permits as may be necessary for the completion of any
alteration to the Premises by Tenant and shall execute and deliver to Tenant all such consents as
may be needed to comply with all Requirements. Upon completion of any such alterations and
improvements, Tenant shall obtain all such certificates, permits or other licenses as are necessary
under applicable Requirements in connection with the use and occupancy of the Premises.
8. LIENS
Tenant shall not (and shall not cause or permit a third party to) create or place any lien or
encumbrance of any kind upon the Premises.
9. UTILITIES.
9.1. Utility Services. Tenant shall make arrangements with each utility company and
public body to provide, in Tenant’s name, electricity, telephone, heat, and water service necessary
for Tenant’s use of the Premises.
9.2. Payment. Tenant shall pay directly to the companies furnishing utility service
the cost of all service connection fees and the cost of all utilities consumed by Tenant throughout
the Term. Tenant’s obligations for the payment of the costs incurred for utilities that serve the
Premises prior to the termination of this Lease shall survive termination hereof.
10. INSURANCE
10.1. Tenant’s Insurance Obligations. Tenant shall carry and maintain, at its sole
cost and expense, a broad form comprehensive general liability or commercial general liability
policy insuring Landlord and Tenant against any liability arising out of the ownership, use,
occupancy or maintenance of the Premises and a property and casualty insurance policy covering the
Premises and improvements thereon. In addition, during any time that Tenant
conducts any
construction at the Premises, Tenant shall maintain in effect a Builder’s All-Risk policy of
casualty and liability insurance.
10.2. Insurance Policies. All of the policies required to be obtained by Tenant
pursuant to the provisions of this Article 10 shall be with companies authorized to do business in
New York and otherwise reasonably acceptable to Landlord. Each policy shall permit the release in
Section 10.3 below.
10.3. Release of Liability. Landlord and Tenant hereby release each other from any
and all liability or responsibility to each other or any one claiming through or under them by way
of subrogation or otherwise, or any loss or damage caused by fire or any of the extended coverage
casualties, even if such fire or other casualty shall have been caused by the fault or negligence
of Landlord or Tenant or of any one for whom they may be responsible, provided that this release
shall be effective only with respect to loss or damage occurring during such time as Landlord’s and
Tenant’s policies of insurance shall contain a clause or endorsement to the effect that such
release shall not adversely affect or impair such policies or breach the right of Tenant or
Landlord (as the case may be) to recover thereunder. Each party shall have such a clause or
endorsement included in its policy and shall pay any cost of same.
11. ASSIGNMENT AND SUBLETTING
Tenant shall not assign, mortgage or encumber this Lease, or sublease any portion of the
Premises, without Landlord’s consent, which Landlord shall not unreasonably delay or
withhold. Tenant shall have the unrestricted right to assign or sublease the Premises to any
entity affiliated by common ownership with Tenant.
12. SUBORDINATION.
This Lease and the lien hereof upon the Premises, and all rights of Tenant hereunder, shall at
all times be subject and subordinate to the lien of any mortgage or mortgages which now affects, or
may hereafter, affect the Premises, and to all the renewals, modifications, consolidations,
replacements and extensions thereof. The recording of any such mortgage or mortgages shall
automatically create the priority hereinabove described, but Tenant shall upon request execute,
acknowledge and deliver to Landlord any instruments which are necessary to subordinate this Lease
and all rights hereunder to the lien of any such mortgage.
13. SURRENDER.
Upon the expiration or sooner termination of the Term of this Lease, Tenant shall surrender
the Premises in good condition, reasonable wear and tear and casualty excepted. If Tenant elects
to remove its trade fixtures, furniture, equipment and other personal property installed in the
Premises prior to the expiration or earlier termination of this Lease, Tenant shall repair any
damage to the Premises resulting from or caused by such removal.
14. LANDLORD’S REPRESENTATIONS AND OTHER AGREEMENTS.
14.1. Quiet Enjoyment. Upon paying the Rent herein set forth and performing its other
covenants and agreements herein set forth, Tenant shall peaceably and quietly have, hold and enjoy
the Premises for the Term without hindrance or molestation from Landlord, subject to the terms and
provisions of this Lease. Upon any sale of the Premises or Landlord’s estate therein, or the
assignment of Landlord’s interest under this Lease, Tenant shall look to each respective succeeding
grantee or assignee for the performance of Landlord’s obligations under
this Lease, provided such succeeding assignee assumes all performance and other obligations of
Landlord under this Lease.
14.2. Ownership of Premises. Landlord warrants and represents that it is the sole
owner possessing good and marketable title to the Premises. Landlord has full right and authority
to execute this Lease for the Term, upon the conditions herein contained.
15. EVENTS OF DEFAULT
The following events shall be deemed to be events of default by Tenant under this Lease:
15.1. Failure to Pay Rent. If Tenant shall fail to pay any Rent when due.
15.2. Bankruptcy. If there shall be commenced by Tenant a voluntary case under the
Federal Bankruptcy Code or under any other applicable federal or state bankruptcy, insolvency or
other similar law, or if there shall be entered a decree or order for relief by a court having
jurisdiction in respect of Tenant under any involuntary case under the Federal Bankruptcy Code or
under any other applicable federal or state bankruptcy, insolvency or similar law which is not
withdrawn or dismissed within 60 days after filing, or if there shall be appointed any arrangement
for a receiver, liquidator, assignee, custodian, trustee, sequestrator, conservator or similar
official of or for Tenant or for any substantial part of Tenant’s property which is not terminated
in 60 days.
15.3. Assignments for Creditors; Attachments. If Tenant makes an assignment for
benefit of its creditors, or petitions for or submits this Lease under a writ of execution or
attachment.
15.4. Failure to Comply with Lease Terms. If Tenant fails to comply with any other
term, provision or covenant of this Lease, and does not cure such failure within 15 days after
notice, unless such failure is of a nature that cannot be completely cured or remedied within
15 days, provided that Tenant shall have diligently commenced curing such default within such
15 day period and shall continue thereafter with reasonable diligence and in good faith to
proceed
to remedy or cure such default, then Tenant shall be permitted a reasonable additional period of
time to remedy or cure such default.
16. LANDLORD’S REMEDIES
Upon the occurrence of an event of default, Landlord shall have the right to terminate this
Lease, and at any time thereafter to recover possession of the Premises or any part thereof and
expel and remove therefrom Tenant and any other person occupying the same, by any lawful means, and
repossess the Premises. Landlord shall also be entitled to recover from Tenant any deficiency
between the Rent and the net amount, if any, of the rents collected on account of the leases(s) of
the Premises for each month of the period which would otherwise have constituted the balance of the
Term. The foregoing are without prejudice to any of the remedies that Landlord may have under this
Lease, at law or in equity by reason of Tenant’s default or of such termination.
17. NOTICES AND CONSENTS
All notices, consents, approvals and other communications required or permitted to a party
under this Agreement shall be in writing and shall be delivered personally to, sent by any national
overnight courier or mailed first class certified mail, return receipt requested, to the respective
party at the address set forth on the first page of this Lease. Any item delivered in accordance
with the provisions of this Section shall be deemed to have been delivered (i) on the date of
personal delivery, (ii) on the business day following the date sent by overnight courier or (iii)
on the fifth day following the date on which it was so mailed, as the case may be. Addresses for
notices may be changed, as provided herein.
18. SIGNS
Tenant may erect and maintain, at its sole cost and expense, one or more signs, subject to the
provisions of this Section. The sign shall comply with all Requirements, and the
covenants,
restriction and agreements, if any, affecting the Building on the Premises. Tenant shall maintain
such sign in good repair, and upon termination of this Lease, Tenant shall, at its sole cost and
expense, remove the sign or signs and repair any damage caused by erection, maintenance or removal
of same.
19. MISCELLANEOUS
19.1. Singular and Plural. Words of gender used in this Lease shall be held and
construed to include the other gender, and words in the singular number shall be held to include
the plural, unless the context otherwise requires.
19.2. Binding Effect. The terms, provisions, covenants and conditions contained in
this Lease shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns, except as otherwise
herein expressly provided.
19.3. Choice of Law. This Lease shall be governed by New York law.
19.4. Captions. The captions inserted in this Lease are for convenience only and in
no way define, limit or otherwise describe the scope or intent of this Lease, or any provision
hereof, or in any way affect the interpretation of this Lease.
19.5. Estoppel Certificates. Tenant agrees from time to time, within ten days after
request of Landlord, to deliver to Landlord or to any lender providing financing for the Premises
an estoppel certificate stating that this Lease is in full force and effect, the date to which Rent
has been paid and the unexpired Term, acknowledging that there are no uncured defaults on the part
of Landlord (or specifying such defaults, if any as are claimed by Tenant),
and containing such other information pertaining to this Lease and may be reasonably requested
by Landlord.
19.6. Amendments. This Lease may not be altered, modified, changed or amended except
by an instrument in writing signed and dated by both parties hereto.
19.7. Entire Agreement. This Lease constitutes the entire understanding and agreement
of Landlord and Tenant with respect to the subject matter of this Lease, and contains all of the
covenants and agreements of Landlord and Tenant with respect thereto. Landlord and Tenant each
acknowledge that there are no representations, promises or agreements by Landlord or Tenant, or
anyone acting on behalf of Landlord or Tenant, which are not contained herein.
19.8. Waivers. The waiver by Landlord or Tenant of any term, agreement or condition
herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any
other term, agreement or condition herein contained. The subsequent acceptance of Rent hereunder
by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term,
agreement or condition of this Lease, other than the failure of Tenant to pay the particular Rent
so accepted, regardless of Landlord’s knowledge of such preceding breach at the time of acceptance
of such Rent.
19.9. Broker’s Fees. Landlord and Tenant each represent and warrant as to itself that
it has dealt with no broker, agent or other person in connection with this transaction. Landlord
and Tenant each agree to indemnify and hold the other harmless from and against any claims arising
from a breach of the foregoing representations, such indemnity to include the reasonable attorneys’
fees and disbursements of the indemnified party.
20. DESIGNATION AS LEASE.
Despite the designation of this document as a Lease, the same shall be deemed to be a sublease
for so long as the lease agreement dated December 29, 2004 between the New York City Industrial
Development Agency and The Chefs’ Warehouse Leasing Co., LLC, as owner
of the Premises, entered into in connection with Landlord’s acquisition and financing of the
Premises, remains in effect.
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the date first above
written.
| The Chefs’ Warehouse Leasing Co., LLC | Dairyland USA Corporation | |||||||||
By:
|
/s/ Xxxx Xxxxxxxxxx
|
By: | /s/ Xxxx X. Xxxxxx
|
|||||||
| Name: Xxxx Xxxxxxxxxx | Name: Xxxx X. Xxxxxx | |||||||||
| Title: Manager | Title: Vice President | |||||||||
LEASE
The Chefs’ Warehouse Leasing Co., LLC
as Landlord
and
Dairyland USA Corporation
as Tenant
Premises:
|
0000 Xxxxx Xxxxxx | |
| Xxxxx, XX 00000 | ||
Dated:
|
December 29, 2004 |
