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EXHIBIT 10.10
Approved by Legal Counsel for use by
Members of the Metropolitan Kansas
City Board of REALTORS(R), 1993, 1999 This is a legally binding lease,
Copyright If not understood, consult an attorney.
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COMMERCIAL AND INDUSTRIAL LEASE AGREEMENT
THIS LEASE is made as of May 15th, 1999, between Midwest Cold Storage
L.L.C., hereinafter referred to as ("Landlord"), with an address of 0000 X. 0xx
Xxxxxx, Xxxxxx Xxxx, Xx. 00000, and Glacier Distribution L.L.C., hereinafter
referred to as ("Tenant"), with an address of 000 X. 00xx Xxx., Xxxxxx, Xx.
00000, who hereby agree as follows:
1. PREMISES. Subject to the covenants and conditions of this Lease,
Landlord leases to Tenant, and Tenant leases from Landlord, the premises (the
"Premises") commonly known and numbered as 0000 Xxxxx 0xx Xxxxxx xx xxx Xxxx xx
Xxxxxx Xxxx, Xxxxxx xx Xxxxxxxxx, Xxxxx of Kansas, and further described as:
4460 + Sq. ft. freezer, 4940 + sq. ft. dry and 1 office (new paint and carpet)
together with the right of ingress and egress.
2. USE OF PREMISES. The Premises will be used only for: storage of frozen
products and related items (collectively, the "Permitted Use").
3. TERM. The term of this Lease (the "Term") is for 3 (three) years and __
months, commencing on the 15th day of May, 1999, and ending on the 14th day of
May, 2002.
4. RENT PAYMENTS. Tenant shall pay to Landlord an aggregate sum of One
hundred seventy two thousand eight hundred AND 00/100s DOLLARS ($172,800.00) as
rent in monthly installments, each due and payable in advance without notice or
demand at Landlord's above stated address, or at any other place Landlord
designates in writing. The first monthly rent installment of $4800.00 will be
paid upon execution of the lease and all subsequent monthly rent installments
will be due on the 15th day of each succeeding month during the Term. The amount
of each monthly rent installment will be as follows: $4800.00 for each and every
month payable on the 15th for the following month's rent.
5. SECURITY DEPOSIT. Concurrently with its execution of this Lease, Tenant
shall deliver to Landlord $4800.00 as security for the performance by Tenant of
every covenant and condition of this Lease (the "Security Deposit"). Said
Security Deposit may be co-mingled with other funds of Landlord and shall bear
no interest. If Tenant shall default with respect to any covenant or condition
of this Lease, including, but not limited to the payment of rent, Landlord may
apply the whole or any part of such Security Deposit to the payment of any sum
in default or any sum which Landlord may be required to spend by reason of
Tenant's default. If any portion of the Security Deposit is so applied, Tenant,
upon demand by Landlord, will deposit cash with Landlord in an amount sufficient
to restore the Security Deposit to its original amount. Should Tenant comply
with all of the covenants and conditions of this Lease, the Security Deposit or
any balance thereof shall be returned to Tenant promptly after expiration of the
term thereof.
6. POSSESSION AT BEGINNING OF TERM. Landlord shall use due diligence to
give possession as nearly as possible at the beginning of the Term. Rent shall
xxxxx pro rata for the period of any delay in giving Tenant possession, but the
Term will not be extended as a result of such delay. Tenant will make no other
claim against Landlord for delay in obtaining possession.
7. PROPERTY INSURANCE. Tenant shall comply with all insurance regulations
so the lowest property damage insurance and liability insurance rates may be
obtained; and nothing shall be done or kept in or on the Premises by Tenant
which will cause an increase in the premium for any such insurance on the
Premises or on any building of which the Premises are a part or on any contents
located therein, over the rate usually obtained for the proper use of the
Premises permitted by this Lease or which will cause cancellation or make void
any such insurance. If, during the Term, the premiums for any property damage
insurance maintained by Landlord with
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respect to the Premises are increased, or if the amount of property damage
coverage that must be maintained with respect to the Premises is increased,
then Tenant will pay to Landlord, as additional rent, the amount of all such
increases in excess of the premium covering the Premises for the policy year
1998 within thirty (30) days after receipt of Landlord's billing statement and
demand for payment of the same. The amount payable by Tenant under this section
will be pro rated on a per diem basis for the partial years, if any, in which
this Lease commences and terminates.
Tenant shall maintain, at all times during the Term, adequate insurance on
its personal property used, stored or kept in the Premises.
8. INDEMNITY AND LIABILITY INSURANCE. Tenant shall at all times
indemnify, defend and hold Landlord harmless from all loss, liability, costs,
damages and expenses that may occur or be claimed with respect to any person or
persons, or property on or about the Premises or to the Premises resulting from
any act done or omission by or through Tenant, its agents, employees invitees or
any person on the Premises by reason of Tenant's use or occupancy or resulting
from Tenant's non-use or possession of said property and any and all loss, cost,
liability or expense resulting therefrom. Tenant shall maintain, at all times
during the Term, comprehensive general liability insurance in a responsible
insurance company, licensed to do business in the state in which the Premises
are located and satisfactory to Landlord, properly protecting and indemnifying
Landlord with single limit coverage of not less than $1,000,000.00 for injury to
or death of persons and for property damage. During the Term, Tenant shall
furnish Landlord with a certificate or certificates of insurance covering such
insurance so maintained by Tenant and naming Landlord and Landlord's mortgagees,
if any, as additional insureds.
9. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, transfer or
encumber this Lease and shall not sublease the Premises or any part thereof or
allow any other person to be in possession thereof without the prior written
consent of Landlord, in each and every instance, which consent or consents
shall not be unreasonably withheld. For the purpose of this provision, any
transfer of a majority or controlling interest in Tenant (whether in one or
more related or unrelated transactions), whether by transfer of stock,
consolidation, merger, transfer of a partnership interest or transfer of any or
all of Tenant's assets or otherwise, or by operation of law, shall be deemed an
assignment of this lease. Notwithstanding any permitted assignment or
subletting, Tenant shall at all times remain directly, primarily and fully
responsible and liable for the payment of the rent herein specified and for
compliance with all of its other obligations under the terms and provisions of
this Lease.
10. SIGNS AND ADVERTISEMENTS. Tenants shall not place upon nor permit to
be placed upon any part of the Premises, any signs, billboards or advertisements
whatever, without the prior written consent of Landlord.
11. CONDITION OF PREMISES AT BEGINNING AND END OF TERM. Tenant
acknowledges Xxxxxx has inspected the Premises and, except as may be provided
otherwise in this Lease and without abrogating Landlord's obligations under
Paragraph 15 hereof, Xxxxxx accepts the Premises in their present condition.
At the end of the Term, except for damage caused by fire or other perils,
Tenant, at Tenant's expense, will (a) surrender the Premises in as good a
condition as the Permitted Use will have reasonably permitted, subject to
Tenant's obligations stated in Paragraphs 12 and 14 herein; (b) have removed
all of Tenant's property from the Premises; (c) have promptly repaired any
damage to the Premises caused by the removal of Tenant's Property; and (d)
leave the Premises free of trash and debris and the building in "broom clean"
condition.
12. MAINTENANCE AND REPAIR BY TENANT. Except for the obligations imposed
upon Landlord in Paragraph 15 hereof, and except for damage resulting from an
Insurable Loss, during the Term and at Tenant's sole cost and expense, Tenant
will maintain and keep in good order, repair and condition and, when necessary,
will replace all parts of the Premises (except those for which Landlord is
expressly responsible under the terms of this Lease), including, but not
limited to, dock bumpers and other dock equipment and apparatus, utility
service lines from the point where they enter the building(s) of which the
Premises are a part, interior walls, inside surfaces of exterior walls,
fixtures, floor coverings, lighting fixtures, heating, ventilating,
air-conditioning, plumbing, sprinkler system, glass, windows, doors, elevator,
electrical and other mechanical equipment, appliances and systems, railroad
spur track, if any, improvements made by and at the expense of Tenant and
Tenant's property, including, but not limited to, Tenant's signs and
advertisements. Tenant will police and keep the driveways, approaches,
sidewalks, parking areas and adjacent alleys that are a part of the Premises
clean, orderly, sightly, unobstructed and free from ice and snow and will keep
railroad spur tracks that are a part of the Premises unobstructed. Tenant will
regularly water, mow, trim, fertilize and otherwise maintain the lawn, shrubs,
plants, trees and other landscaping of the Premises and will prevent water
pipes in the Premises from freezing.
13. LANDLORD'S RIGHT OF ENTRY. Landlord or Landlord's agent may enter the
Premises at reasonable hours to examine the same, to show the same to
prospective lenders and purchasers, and to
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do anything Landlord may be required to do hereunder or which Landlord may deem
necessary for the good of the Premises or any building of which they are a part;
and, during the last 90 days of this Lease, Landlord may display a "For Rent"
sign on and show the Premises.
14. PARKING LOT MAINTENANCE. Tenant shall be responsible for maintenance,
cleaning, repainting and repairs of the parking areas, driveways, sidewalks and
approaches, including snow removal. Tenant will repair all damage to parking
areas, driveways, sidewalks and approaches caused by placement or movement of
trash containers, truck trailers, dollies, trucks, etc. Tenant understands and
agrees that no personal property shall be stored in the parking area or anyplace
outside of the building without the prior written consent of Landlord.
15. MAINTENANCE AND REPAIR BY LANDLORD. Landlord, during the Term and at
Landlord's sole cost and expense, will maintain and keep in good repair the
roof, exterior walls (exclusive of inside surfaces and glass, windows and
doors), gutters, downspouts, foundations and all other structural components of
the building(s) of which the Premises are a part, all underground plumbing and
sewer lines, and water, gas and electric service lines to the point where such
service lines enter the building(s) of which the Premises are a part. Landlord
will be under no obligation, and will not be liable for any failure, to make any
repairs until and unless Tenant notifies Landlord in writing they are necessary,
in which event Landlord will have a reasonable time after notice to make such
repairs.
16. DAMAGE BY CASUALTY. In case, during the Term or previous thereto, the
Premises hereby let, or the building of which said Premises are a part, shall be
destroyed or shall be so damaged by fire or other casualty as to become
untenantable, then in such event, at the option of Landlord, the Term shall
cease and this Lease shall become null and void from the date of such damage or
destruction and Tenant shall immediately surrender said Premises and all
interest therein to Landlord, and Tenant shall pay rent within said Term only to
the time of such surrender; provided, however, that Landlord shall exercise such
option to so terminate this Lease by notice in writing delivered to Tenant
within thirty days after such damage or destruction. In case Landlord shall not
so elect to terminate this Lease, this Lease shall continue in full force and
effect and Landlord shall repair the Premises with all reasonable promptitude,
placing the same in as good a condition as they were at the time of the damage
or destruction, and for that purpose may enter said Premises and rent shall
xxxxx in proportion to the extent and duration of untenantability. In either
event, Tenant shall remove all rubbish, debris, merchandise, furniture,
equipment and other of its personal property, within five days after the request
of Landlord. If the Premises shall be but slightly injured by fire or other
casualty, so as not to render the same untenantable and unfit for occupancy,
then Landlord shall repair the same with all reasonable promptitude, and in that
case the rent shall not xxxxx. Except as provided herein, no compensation or
claim shall be made by or allowed to Tenant by reason of any inconvenience or
annoyance arising from the necessity of repairing any portion of the building or
the Premises, however the necessity may occur.
17. PERSONAL PROPERTY. Landlord shall not be liable for any loss or damage
to any merchandise, inventory, goods, fixtures, improvements or personal
property of tenant in or about the Premises, regardless of the cause of such
loss or damage.
18. ALTERATIONS. Tenant shall not make any alterations or additions in or
to the Premises without the prior written consent of Landlord.
19. UTILITIES AND SERVICES. Tenant shall furnish and pay for all trash
removal and any services or utilities used in or assessed against the Premises,
unless otherwise herein expressly provided.
20. LEGAL REQUIREMENTS. Tenant shall comply with all laws, orders,
ordinances and other public requirements now or hereafter affecting the Premises
or the use thereof, including without limitation ADA, OSHA and like
requirements, and indemnify, defend and hold Landlord harmless from expense or
damage resulting from failure to do so.
21. MULTIPLE TENANCY BUILDING. If the Premises are a part of a multiple
tenancy building, the responsibility of Tenant for reimbursements as called for
in Paragraphs 7 and 23 of this Lease shall be a percentage of the total increase
equal to the percentage of rentable floor space in said building occupied by
Xxxxxx. It is agreed Tenant occupies 10% ("Proportionate Share") of the floor
space in the building for which the Premises are a part.
Landlord may, with written notice to Tenant, elect to perform and
provide certain maintenance and services pertaining to the entire building or
area of which the Premises are a part including, but not limited to,
landscaping, trash removal, lawn maintenance, common area lighting, water,
paving maintenance, maintenance to rail trackage and snow removal, and in such
event Tenant shall reimburse Landlord for its Proportionate Share of said
maintenance services within fifteen (15) days from the date of Landlord's notice
of the amount so due hereunder. Tenant must perform and provide pest control,
maintenance and services pertaining to leased space at Tenant's expense.
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Tenant agrees to conduct its business in a manner that will not be
objectionable to other Tenants in the building of which the Premises are a part,
including noise, vibration, odor, trash or fumes. In the event Landlord receives
complaints from other tenants in the building and determines, in its sole
reasonable judgment, that Tenant is conducting its operations in a manner so as
to be objectionable to other tenants. Xxxxxx agrees, upon notice from Landlord
thereof, to promptly modify the conduct of its operations to eliminate such
objectionable operations.
22. FIXTURES. Except for Tenant's property and business fixtures, all
buildings, repairs, alterations, additions, improvements, installations and
other non-business fixtures installed or erected on the Premises, whether by or
at the expense of Landlord or Tenant, will belong to Landlord and will remain on
and be surrendered with the Premises at the expiration or termination of this
Lease. However, at Landlord's option, Tenant shall remove Xxxxxx's alterations
or improvements prior to the expiration of this Lease and return the Premises to
their original condition.
23. INCREASE IN REAL ESTATE TAXES AND SPECIAL ASSESSMENTS. In the event the
real estate taxes and installments of special assessments, payable with respect
to the Premises during any lease year shall be greater than the amount of such
taxes and installments due and payable during the base year of 1998 in the
amount of $XXXXXXXXXXXXXXXXXX, or the first fully assessed year, whether by
reason of an increase in tax rate or an increase in the assessed valuation or
otherwise. Tenant shall pay to Landlord the full amount of such increase as
additional rent within thirty (30) days after notice that the same is due.
Should Tenant occupy less than the whole of the property against which such
taxes are assessed, Xxxxxx's obligation hereunder shall be limited to its
Proportionate Share of such increased taxes and special assessments.
24. EMINENT DOMAIN. If the Premises or any substantial part thereof shall
be taken under the power of eminent domain or be acquired for any public or
quasi-public use or purpose, the Term shall cease and terminate upon the date
when the possession of said Premises or the part thereof so taken shall be
required for such use or purpose and without apportionment of the award, and
Tenant shall have no claim against Landlord for the value of any unexpired Term.
If any condemnation proceeding shall be instituted in which it is sought to
take or damage any part of the Premises or the building of which the Premises
are a part or the land under it, or if the grade of any street or alley adjacent
to the Premises is changed by any legal authority and such change of grade makes
it necessary or desirable to remodel the Premises to conform to the changed
grade. Landlord shall have the right to cancel this Lease after having given
written notice of cancellation to Tenant not less than ninety (90) days prior to
the date of cancellation designated in the notice. In either of said events,
rent at the then current rate shall be apportioned as of the date of the
termination. No money or other consideration shall be payable by Landlord to
Tenant for the right of cancellation and Tenant shall have no right to share in
the condemnation award or in any judgement for damages caused by the taking or
the change of grade. Nothing in this paragraph shall preclude an award being
made to Tenant for loss of business or depreciation to and cost of removal of
equipment or fixtures.
25. WAIVER OF SUBROGATION. As part of the consideration for this Lease each
of the parties hereby releases the other party hereto from all liability for
damage due to any act or neglect of the other party (except as hereinafter
provided) occasioned to property owned by said parties which is or might be
incident to or the result of a fire or any other casualty against loss for which
either of the parties is now carrying or hereafter may carry insurance;
provided, however, that the releases herein contained shall not apply to any
loss or damage occasioned by intentional acts of either of the parties hereto,
and the parties hereto further covenant that any insurance they obtain on their
respective properties shall contain an appropriate provision whereby the
insurance company, or companies, consent to the mutual release of liability
contained in this paragraph.
26. DEFAULT AND REMEDIES. In the event: (a) Tenant fails to comply with any
term, provision, condition or covenant of this Lease; (b) Tenant deserts or
vacates the Premises; (c) any petition is filed by or against Tenant under any
section or chapter of the Federal Bankruptcy Act, as amended, or under any
similar law or statute of the United States or any state thereof; (d) Tenant
becomes insolvent or makes a transfer in fraud of creditors; (e) Tenant makes an
assignment for benefit of creditors; or (f) a receiver is appointed for Tenant
or any of the assets of Tenant, then in any of such events, Tenant shall be in
default and Landlord shall have the option to do any one or more of the
following: upon ten (10) days prior written notice, excepting the payment of
rent or additional rent for which no demand or notice shall be necessary, in
addition to and not in limitation of any other remedy permitted by law, to enter
upon the Premises either with or without process of law, and to expel, remove
and put out Tenant or any other persons who might be thereon, together with all
personal property found therein; and Landlord may terminate this Lease or it may
from time to time, without terminating this Lease, rent said Premises or any
part thereof for such term or terms (which may be for a term extending beyond
the Term) and at such rental or rentals and upon such other terms and conditions
as Landlord in its sole discretion may deem advisable, with the right to repair
renovate, remodel, redecorate, alter and change said Premises. At the option of
Landlord, rents received by Landlord from such reletting shall be applied first
to the payment of any indebtedness from Tenant to
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Landlord other than rent and additional rent due hereunder; second, to payment
of any costs and expenses of such reletting, including, but not limited to,
attorney's fees, advertising fees and brokerage fees, and to the payment of any
repairs, renovation, remodeling, redecorations, alterations and changes in the
Premises; third, to the payment of rent and additional rent due and payable
hereunder and interest thereon; and, if after applying said rentals there is any
deficiency in the rent and additional rent and interest to be paid by Tenant
under this Lease. Tenant shall pay any such deficiency to Landlord and such
deficiency shall be calculated and collected by Landlord monthly. No such
re-entry or taking possession of said Premises shall be construed as an election
of Landlord's part to terminate this Lease unless a written notice of such
intention is given to Tenant. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such previous breach and default. Should Landlord at any time terminate this
Lease by reason of any default, in addition to any other remedy it may have, it
may recover from Tenant the worth at the time of such termination of the excess
of the amount of rent and additional rent reserved in this Lease for the balance
of the Term over the then reasonable rental value of the Premises for the same
period. Landlord shall have the right and remedy to seek redress in the courts
at any time to correct or remedy any default of Tenant by injunction or
otherwise, without such resulting or being deemed a termination of this Lease,
and Landlord, whether this Lease has been or is terminated or not, shall have
the absolute right by court action or otherwise to collect any and all amounts
of unpaid rent or unpaid additional rent or any other sums due from Tenant to
Landlord under this Lease which were or are unpaid at the date of termination.
In case it should be necessary for Landlord to bring any action under this
Lease, to consult or place said lease or any amount payable by Tenant hereunder
with an attorney concerning or for the enforcement of any of Landlord's rights
hereunder, then Xxxxxx agrees in each and any such case to pay to Landlord,
Xxxxxxxx's reasonable attorney's fees.
27. WAIVER. The rights and remedies of Landlord under this Lease, as well
as those provided or accorded by law, shall be cumulative, and none shall be
exclusive of any other rights or remedies hereunder or allowed by law. A waiver
by Landlord of any breach or breaches, default or defaults of Tenant hereunder
shall not be deemed or construed to be a continuing waiver of such breach or
default nor as a waiver of or permission, expressed or implied, for any
subsequent breach or default, and it is agreed that the acceptance by Landlord
of any installment of rent subsequently to the date the same should have been
paid hereunder, shall in no manner alter or affect the covenant and obligation
of Tenant to pay subsequent installments of rent promptly upon the due date
thereof. No receipt of money by Landlord after the termination of this Lease
shall in any way reinstate, continue or extend the term above demised.
28. TOXIC OR HAZARDOUS MATERIALS. Tenant shall not store, use or dispose
of any toxic or hazardous materials in, on or about the Premises without the
prior written consent of Landlord. Tenant, at its sole cost, will comply with
all laws relating to Tenant's storage, use and disposal of hazardous or toxic
materials. Tenant shall be solely responsible for and will defend, indemnify
and hold Landlord, its agents and employees, harmless from and against all
claims, costs and liabilities, including attorney's fees and costs, arising out
of or in connection with the removal, clean-up and restoration work and
materials necessary to return the Premises, and any other property of whatever
nature located on the Premises, to their condition existing prior to the
appearance of toxic or hazardous materials on the Premises. Tenant's
obligations under this paragraph will survive the termination of this Lease.
Any party to this Lease through whom a claim to any broker's, finder's or
other fee is made, contrary to the representations made above in this
paragraph, shall indemnify, defend and hold harmless the other party to this
Lease from any other loss, liability, damage, cost or expense including,
without limitation, reasonable attorney's fees, court costs and other legal
expenses paid or incurred by the other party, that is in any way related to
such a claim.
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30. NOTICES. Any notice hereunder shall be sufficient if sent by
certified mail, addressed to Tenant at the Premies, and to Landlord where rent
is payable.
31. SUBORDINATION. In the event Landlord holds title to said Premises by
virtue of a lease, then this sublease is and shall remain subject to all of the
terms and conditions of such underlying lease, so far as shall be applicable to
the Premises. This lease shall also be subject and subordinate in law and
equity to any existing or future mortgage or deeds of trust placed by Landlord
upon the Premises or the property of which the Premises form a part.
32. SUCCESSORS. The provisions, covenants and conditions of this Lease
shall bind and inure to the benefit of the legal representatives, heirs,
successors and assigns of each of the parties hereto, except that no assignment
or subletting by Tenant without the written consent of Landlord shall vest any
rights in the assignee or subtenant of Tenant.
33. QUIET POSSESSION. Landlord agrees, so long as Tenant fully complies
with all of the terms, covenants and conditions herein contained on Tenant's
part to be kept and performed, Tenant shall and may be peaceably and quietly
have, hold and enjoy the Premises for the Term aforesaid, it being expressly
understood and agreed that the aforesaid covenant of quiet enjoyment shall be
binding upon Landlord, its heirs, successors or assigns, but only during such
party's ownership of the Premises. Landlord and Tenant further covenant and
represent that each has full right, title, power and authority to make, execute
and deliver this Lease.
34. BANKRUPTCY. Neither this Lease nor any interest therein nor any
estate hereby created shall pass to any trustee or receiver in bankruptcy or to
any other receiver or assignee for the benefit of creditors by operation of law
or otherwise during the Term or any renewal thereof.
35. ENTIRE AGREEMENT. This lease contains the entire agreement between
the parties, and no modification of this Lease shall be binding upon the
parties unless evidenced by an agreement in writing signed by the Landlord and
Tenant after the date hereof. If there be more than one Tenant named herein,
the provisions of this Lease shall be applicable to and binding upon such
Tenants, jointly and severally.
36. SUBORDINATION. Tenant shall attorn to any successor to Landlord upon
request and to execute any documents reasonably required or appropriate to
effectuate such an attornment, or the subordination aforesaid, upon written
notice thereof, and Xxxxxx does hereby make, constitute and irrevocably appoint
Landlord as Xxxxxx's attorney-in-fact and in Tenant's name, place and stead to
execute all such documents in accordance therewith.
37. ESTOPPEL CERTIFICATES. Tenant shall at any time upon not less than
ten (10) days' prior written notice from Landlord execute, acknowledge and
deliver to Landlord or to any lender of or purchaser from Landlord a statement
in writing certifying that this Lease is unmodified and in full force and
effect (or if modified stating the nature of such modification) and the date to
which the rent and other charges are paid in advance, if any, and acknowledging
that there are not, to Tenant's knowledge, any uncured defaults on the part of
Landlord 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 of the business of Landlord.
IN WITNESS WHEREOF, said parties hereunto subscribed their names. Executed
in originals.
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Landlord Tenant
/s/ Xxxx Xxxx
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By: /s/ Xxxx Xxxx By:
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Title: Member L.L.C. Title:
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Date: 4/30/99 Time: 1:30 P.M. Date: Time:
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Midwest Gold Storage LLC
