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EXHIBIT 10.44
EXECUTION COPY
LEASE BY AND BETWEEN
ASA COMPANY,
AS LANDLORD
AND
XXXXXXX FOODS, INC.,
AS TENANT
DATED FEBRUARY 26, 1997
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INDEX
Article Page
1 Leased Premises; Lease Term . . . . . . . . . . . . . . . . . . . . . . 1
2 Rent Payments; Net Lease . . . . . . . . . . . . . . . . . . . . . . . 1
3 Use of Leased Premises . . . . . . . . . . . . . . . . . . . . . . . . 2
4 No Representations . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5 Compliance with Laws; Insurance Regulations . . . . . . . . . . . . . . 3
6 Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7 Repair, Maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . 6
8 Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9 Covenant Against Liens . . . . . . . . . . . . . . . . . . . . . . . . 9
10 Landlord's Right of Entry . . . . . . . . . . . . . . . . . . . . . . . 9
11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
12 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
13 Escrow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
14 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15 Damage or Destruction . . . . . . . . . . . . . . . . . . . . . . . . . 15
16 Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17 Mortgaging; Assignment; Subletting . . . . . . . . . . . . . . . . . . 17
18 Subordination and Attornment . . . . . . . . . . . . . . . . . . . . . 18
19 Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 19
20 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
21 Cure of Tenant's Default . . . . . . . . . . . . . . . . . . . . . . . 20
22 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
23 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
24 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . 24
25 Surrender of Premises; Holding Over . . . . . . . . . . . . . . . . . . 24
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26 Relationship of Parties . . . . . . . . . . . . . . . . . . . . . . . . 25
27 Successors and Assigns; Provisions Binding . . . . . . . . . . . . . . 26
28 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
29 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
30 Entire Agreement; Construction . . . . . . . . . . . . . . . . . . . . 27
31 Binding Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . 27
32 Choice of Law; Jurisdiction . . . . . . . . . . . . . . . . . . . . . . 29
33 Joint Preparation . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
34 Time Is of the Essence . . . . . . . . . . . . . . . . . . . . . . . . 29
35 Term Renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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L E A S E
THIS LEASE made and entered into as of the 26th day of February, 1997,
between ASA COMPANY, a Pennsylvania general partnership, having its principal
office at Xxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter called
"Landlord") and XXXXXXX FOODS, INC., a Delaware corporation, having its
principal office at 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx
00000 (hereinafter called "Tenant").
A. Landlord is the owner of certain land and improvements more
particularly described on Exhibit A attached hereto (the "Real Estate").
B. Tenant desires to lease from Landlord, and Landlord is willing
to lease to Tenant the Real Estate and improvements thereon upon and subject to
the terms, provisions and conditions of this Lease.
NOW THEREFORE, Landlord and Tenant, for and in consideration of the
rents, agreements, terms, covenants and conditions hereinafter mentioned and
hereby agreed to be paid, kept and performed by Landlord and Tenant, their
legal representatives, successors and assigns, do hereby mutually agree as
follows:
Article 1
Leased Premises; Lease Term
Upon and subject to the agreements, terms, covenants and conditions
hereinafter set forth, Landlord hereby leases to Tenant, and Tenant hereby
rents and leases from Landlord, the Real Estate, together with any and all
buildings, fixtures, structures and other improvements located thereon
(collectively with the Real Estate, the "Leased Premises"), subject to existing
restrictions, covenants, easements, rights and encumbrances of record.
TO HAVE AND TO HOLD for a term commencing on the date hereof and
ending on midnight of the day preceding the tenth (10th) annual anniversary of
the "Rent Commencement Date" as hereinafter defined (the "Lease Term") unless
sooner terminated or extended as herein provided. The "Rent Commencement Date"
shall mean March 1, 1997.
Article 2
Rent Payments; Net Lease
Tenant, during the Lease Term, will pay to Landlord an annual rental
of Five Hundred Forty Thousand Dollars ($540,000.00) in equal monthly
installments of Forty-Five Thousand Dollars ($45,000.00) in advance on or
before the first day of each calendar month. The rent for any partial month at
the commencement hereof shall be prorated and paid upon Tenant's execution of
this Lease.
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Landlord may assess a charge of five percent (5%) of the monthly rent
installment due for any monthly payment that is received more than five (5)
days after it is due.
Tenant will pay to Landlord the rent herein reserved, without prior
demand or notice and without any setoffs, abatements, or deductions whatsoever,
at the office of Landlord or at such other place as Landlord shall designate in
writing. All other sums that may become due or be payable to Landlord
hereunder shall be paid at the time and in the manner herein provided at the
office of Landlord. All of such other sums so to be paid may, at Landlord's
option, be deemed to be additional rent to be added to any fixed rent then due
or thereafter falling due, and in the event of non-payment, Landlord shall have
all the rights and remedies herein provided.
If Tenant fails the net worth requirement of Article 13, then Tenant
shall deliver to Landlord the sum equal to one month's base rent as security
payment for the performance by Tenant of every covenant and condition of this
Lease. 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 payment to the payment of any sum
in default or any other sum which Landlord may be required to spend by reason
of Tenant's default, and Tenant shall thereafter upon demand of Landlord fully
restore the original amount of the security deposit. After all of the Tenant's
obligations under this Lease shall have been satisfied, the security payment or
any remaining balance thereof shall be returned to Tenant. In the event of a
bona fide sale of the property of which the Leased Premises are a part,
Landlord shall have the obligation to transfer such security to the purchaser
to be held by such purchaser under the terms of this Lease, and Landlord shall
be released from all obligation and liability for the return of such security
to Tenant provided such transferee assumes such obligation.
Tenant acknowledges that the rent and other payments to Landlord
hereunder are intended to be "net" to Landlord and that this Lease is a so
called "triple net" or "net net net" lease to Landlord.
Article 3
Use of Leased Premises
Tenant shall occupy the Leased Premises during the Lease Term for the
purposes set forth on Exhibit A hereto and for no other purpose or use without
Landlord's prior written consent. Tenant shall not use or occupy or permit the
Leased Premises or any part thereof to be used or occupied for any other
business, use or purpose without Landlord's prior written consent, which shall
not be unreasonably withheld. Tenant shall apply for, secure, maintain and
comply with all licenses, permits, or accreditations which may
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be required for the conduct by Tenant of the use of the Leased Premises, as
herein permitted.
Article 4
No Representations
Tenant is fully familiar with the physical condition of the Leased
Premises, and Tenant accepts and takes the Leased Premises in their "as is" and
"where is" condition. Landlord has made no representations whatsoever in
connection with the condition of the Leased Premises or any part thereof, and
Landlord shall not be liable for any latent or patent defects therein.
Article 5
Compliance with Laws; Insurance Regulations
Throughout the Lease Term, Tenant shall, at its sole cost and expense,
promptly observe and comply with all laws, ordinances, orders, regulations,
rules, standards and requirements of every government (whether federal, state
or local), municipality or other governmental authority, including but not
limited to CERCLA, RCRA, TOSCA, FIFRA, OSHA and XXXX (as the same are commonly
referred to under the federal environmental laws), and the Americans with
Disabilities Act of 1990, as amended (the "ADA"), and including any agency or
department thereof, having jurisdiction over Tenant or the Leased Premises
(collectively, "Governmental Regulations"), and of the local fire insurance
rating organization, and of all insurance companies writing policies covering
the Leased Premises or any part thereof, relating to the Leased Premises, or
the facilities, fixtures or equipment therein, or the use and occupation or
franchises and privileges connected therewith; whether or not such laws,
ordinances, orders, regulations, rules or requirements shall necessitate
improvements, interference with the use and enjoyment of the Leased Premises,
replacements or repairs, extraordinary as well as ordinary, foreseen or
unforeseen, and whether the same now are in force or may, at any time in the
future, be enacted or directed; and Tenant shall pay all costs, expenses,
claims, fines, penalties and damages that may in any manner arise out of or be
imposed because of the failure of Tenant to comply with any of the foregoing.
Landlord, its agents and representatives, may at any time during the
term of the Lease enter upon the Leased Premises, or any part thereof, for the
purpose of determining and ascertaining the environmental status of the same,
including but not limited to the performing of environmental audits or surveys
of the condition of the Leased Premises; and may further video tape, from time
to time, the condition of the Leased Premises, or any building or other
improvements thereon, for the purpose of better assuring and determining
Tenant's fulfillment of its obligations hereunder.
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Tenant shall be responsible for and shall bear all costs and expenses
associated with any and all alterations to the Leased Premises, which may be
required by the ADA for the accommodation of disabled individuals who may be
employed from time to time by Tenant, or any disabled customers, clients,
guests, or invitees or sublessees. Tenant shall indemnify and hold Landlord
harmless from and against any and all costs incurred arising from the failure
of the Leased Premises to conform with the ADA, including the cost of making
any alterations, renovations or accommodations required by the ADA, or any
government enforcement agency, or any court, any and all fines, civil
penalties, and damages awarded against Landlord resulting from a violation or
violations of the ADA, and all reasonable legal expenses and court costs
incurred in defending claims made under the ADA, including reasonable
attorneys' fees.
Tenant shall not (i) use, store, generate, treat, sell or dispose in,
on or about the Leased Premises, any "Hazardous Substances" (hereinafter
defined), or (ii) permit the use, storage, generation, treatment, selling or
disposal in, on or about the Leased Premises of any Hazardous Substances,
except Hazardous Substances in such amounts and of such types that are commonly
and customarily used in compliance with Governmental Regulations in the
operation, cleaning and maintenance of Tenant's business operated in the
ordinary course. "Hazardous Substances" or "Hazardous Substance" as used in
this Lease shall mean any substances, waste or substance now or hereafter
designated as, or containing components designated as, hazardous, dangerous,
toxic or harmful and/or subject to any Governmental Regulations, including,
without limitation, asbestos in any form, urea formaldehyde foam insulation,
transformers or other equipment which contains dielectric fluid or other fluids
containing levels of polychlorinated biphenyls in excess of fifty (50) parts
per million and petroleum products in any form. Tenant shall (i) promptly
comply with all Governmental Regulations now or hereafter pertaining to the
use, discharge, handling, transportation, disposal, treatment, generation,
storage, sale or presence on the Leased Premises of Hazardous Substances; and
(ii) allow Landlord or Landlord's agents or representatives to enter onto the
Leased Premises at all times to check Tenant's compliance with all applicable
Governmental Regulations regarding Hazardous Substances should Landlord have a
reasonable belief that Tenant is not in compliance with all applicable
Governmental Regulations regarding Hazardous Substances. If Tenant is found to
not be in compliance with all applicable Governmental Regulations regarding
Hazardous Substances, all reasonable costs incurred by Landlord and associated
with Landlord's inspection of the Leased Premises and Landlord's monitoring of
Tenant's compliance with this Article, including Landlord's reasonable
attorneys' fees and costs shall be deemed additional rent and shall be due and
payable to Landlord immediately upon demand by Landlord. Tenant shall
indemnify, defend and save Landlord, its officers, directors, shareholders,
managers, agents and employees harmless from and against any and all damages,
penalties, costs and other liabilities (including Landlord's attorneys' fees
and costs and the cost of any remedial
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or abatement activities), arising during the term of this Lease or anytime
thereafter, directly or indirectly, from the use, discharge, handling,
transportation, disposal, treatment, generation, storage, existence or sale of
Hazardous Substances, during the term of this Lease in, on or about the Leased
Premises except to the extent such use, discharge, handling, transportation,
disposal, treatment, generation, storage, existence or sale of Hazardous
Substances resulted solely from the actions of Landlord. Tenant's obligations
under this Article shall survive the termination of this Lease.
Tenant shall, at Tenant's sole expense, comply with all laws, rules,
regulations, requirements, standards and ordinances enacted or imposed by any
governmental unit having jurisdiction over Tenant, the Leased Premises, signage
at the Leased Premises or Tenant's business. Tenant shall not use or occupy
the Leased Premises nor permit its use or occupancy for any unlawful use or
purpose, nor for any purpose which may be hazardous on account of fire,
environmental concerns or otherwise, nor for any use or purpose which might
render Landlord's insurance on the Leased Premises void.
Tenant agrees that if its storage, accumulation, transportation,
treatment or disposal of such Hazardous Substances results in (i) contamination
of the soil or surface or groundwater or (ii) loss or damage to any person(s)
or property, Tenant shall (a) notify Landlord immediately of any contamination,
claim of contamination, loss or damage, (b) proceed with due diligence to clean
up any such contamination in full compliance with all applicable federal, state
and local statutes, regulations and standards, and (c) indemnify, defend and
hold Landlord harmless from and against any and all claims, suits, causes of
action, penalties, fines, costs and fees, including attorney's fees, arising
from or connected with any such contamination, claim of contamination, loss or
damage. The foregoing provision shall survive the termination of the Lease.
The parties hereto shall use their best efforts to resolve any
disputes regarding the origin of any contamination or claim of contamination or
the responsibility as between Landlord and Tenant of clean up of any such
contamination or claim of contamination. Landlord and Tenant agree that if
they are unable to resolve such a dispute, then the provisions of Article 31
governing resolution of disputes shall apply. The parties agree that the
arbitrator shall be retained only to resolve the dispute and in no event will
be retained by either party to conduct any resulting cleanup or remediation of
any suspected release of hazardous waste.
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To the extent applicable, Tenant at its cost and in a timely manner
shall (i) maintain evidence of financial responsibility which satisfies state
requirements for underground storage tank utilization (See 25 Pa. Code Sections
245.701-.708, inclusive); (ii) comply with the "Hazardous Sites Cleanup Act",
Pa. Stat. Xxx. tit. 35 Sections 6020.101-.1305, and the regulations promulgated
thereunder; and (iii) comply with "The Storage Tank and Spill Prevention Act",
Pa. Stat. Xxx. tit. 35 Sections 6021.101-.2104, and the regulations promulgated
thereunder. The enumeration of specific state statutes and regulations above
shall in no way limit the obligation of Tenant to otherwise comply with all
other state laws and regulations applicable to it, and Tenant expressly
covenants to so comply at all times and in all material respects during the
term of this Lease.
Article 6
Utilities
Tenant shall make application for and arrange for the installation of
all utility meters or other devices as it may deem necessary for its purposes,
and Tenant shall be solely responsible for and promptly pay, as and when the
same become due and payable, all charges for water, sewer, sprinkler,
electricity, gas, telephone or other communication, fire or burglar alarm
systems, and any other utility or service supplied, used or consumed in
connection with the Leased Premises. Tenant shall use any utilities supplied
to or serving the Leased Premises in accordance with the regulations of the
public utility company or the governmental agency supplying the same, and
Tenant shall not at any time overburden or exceed the capacity of the mains,
feeders, ducts, conduits or other facilities by which such utilities are
supplied to, distributed in or serve the Leased Premises. Landlord shall not
be liable in damages or otherwise for any interruption in the supply of any
utility or service to the Leased Premises, nor shall any such interruption
constitute any ground for constructive eviction or an abatement of any of the
rents reserved hereunder.
Article 7
Repair, Maintenance and Replacement
Tenant, at its sole cost and expense, shall take good care of the
Leased Premises and of all buildings, structures, improvements, fixtures and
equipment now or hereafter located thereon, interior and exterior, and keep the
same and all parts thereof, including without limiting the generality thereof,
the roof, roof membrane and subroofing, foundations, exterior walls, parking
areas, the grounds, landscaped areas, (grass cutting, lawn and shrubbery
maintenance, tree and plant watering and care), drainage ditches, and xxxxxx,
gutters, downspouts, glass, structural and interior and exterior portions of
the buildings and the plumbing, sprinkler system, heating, air conditioning,
wiring
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and other systems therein and facilities thereof and all sidewalks, parking
areas, driveways, passageways and alleys adjacent thereto and other
appurtenances thereunto belonging, and all fixtures, machinery and equipment
which constitute any part of the Leased Premises, together with any and all
alterations, additions and improvements therein and thereto, in at least as
good order and condition as exists on the date hereof, suffering no waste or
injury; and shall, at Tenant's sole cost and expense, perform all maintenance
and promptly make all needed repairs and replacements, extraordinary as well as
ordinary, structural or otherwise, foreseen or unforeseen, in and to any of the
foregoing and the buildings, structures or improvements now or hereafter
located thereon, including streets, sidewalks, curbs and gutters, vaults,
water, sprinkler systems, sewer and gas connections, plumbing, pipes and mains,
and all other fixtures, machinery and equipment (including the lighting,
electrical, heating, ventilation and air-conditioning systems) now or hereafter
belonging to or connected with the Leased Premises or used in their operation.
All such maintenance, repairs and replacements shall be of first-class quality
sufficient for the proper maintenance and operation of the Leased Premises.
Tenant shall keep and maintain the Leased Premises in a clean and safe
condition, and Tenant shall not permit the accumulation of waste or refuse
matter, nor permit anything to be done or allow any condition to exist which
would invalidate or prevent the procurement of any insurance policies which may
at any time be required pursuant to the provisions of this Lease. Tenant shall
not obstruct or permit the obstruction of any parking areas, streets or
sidewalks located on or adjoining the Leased Premises, and shall keep such
parking areas, streets and sidewalks free of snow and ice.
In addition, Tenant shall, during the term of this Lease, perform the
periodic preventive maintenance recommended by such systems' manufacturers.
Both maintenance and preventive maintenance shall be performed by such
contractors as are recommended by Landlord or such other entities as are
mutually agreed upon by the parties hereto. Tenant shall, on January 1 of each
year while Tenant is in occupancy of the Premises, provide Landlord with
evidence of an executed preventive maintenance contract for all mechanical
equipment (HVAC) provided. Tenant shall pay for the annual mechanical
equipment inspection fees, if any, imposed by any governmental authority.
Tenant agrees to keep the interior of the Leased Premises, including
all plate glass windows, doors, dock bumpers, levelers, and seals in good
repair as well as the floors and floor drains.
Landlord reserves the right to take video footage of the condition of
the Leased Premises as of the Commencement Date, a copy of which shall be
provided to Tenant and shall be an exhibit hereto.
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On the default of Tenant of its obligations to maintain and repair the
Leased Premises as set forth above for a period of fifteen (15) days after
written notice from Landlord demanding cure of same, Landlord may, but shall
not be required to, cause all required maintenance, repairs or replacements to
be made, for Tenant's account, and Tenant shall promptly pay Landlord all costs
incurred plus an administrative fee of fifteen percent (15%) of such costs and
said amount shall constitute and be collectible as additional rent hereunder.
Article 8
Alterations
Tenant shall not make any exterior or structural alterations,
improvements, or additions to the Leased Premises in excess of $125,000 without
obtaining Landlord's prior written consent, which consent shall not be
unreasonably withheld. Such exterior or structural alterations, improvements,
or additions, if consented to by Landlord, shall be made under the supervision
of an architect or engineer reasonably satisfactory to Landlord and in
accordance with plans and specifications approved by Landlord. Tenant shall
not make any interior or nonstructural alterations, improvements, or additions
to the Leased Premises in excess of $125,000 without obtaining Landlord's prior
written consent which shall not be unreasonably withheld.
All alterations, improvements, and additions made to the Leased
Premises shall be effected with due diligence, in a good and workmanlike manner
employing appropriate new materials and in compliance with all applicable
governmental and insurance requirements and shall be promptly and fully paid
for by Tenant; and no alterations, improvements, or additions made to the
Leased Premises shall change the general character of the Leased Premises,
impair its usefulness, or reduce the fair market value thereof below its value
immediately before such alteration, improvement, or addition. Prior to
proceeding with any alteration, improvement or addition requiring Landlord's
consent hereunder, Tenant shall at Landlord's request furnish Landlord with
satisfactory evidence of worker's compensation insurance in statutory limits of
Tenant, or any contractor or subcontractor performing work for Tenant on the
Leased Premises, as well as satisfactory evidence of all insurance coverage
required to be maintained by Tenant under this Lease. In addition, Landlord
may require that before commencement or continuance of such alteration,
improvement or addition, Tenant furnish Landlord with such security or
performance bond as Landlord shall request in order to assure completion of
same and protect against any and all liens, chattel mortgages and security
interests arising in connection therewith.
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Article 9
Covenant Against Liens
Tenant shall do all things necessary to prevent the filing of any
mechanics', materialmen's or other liens against the Leased Premises by reason
of any work, labor, services or materials performed or supplied or claimed to
have been performed or supplied to Tenant, or anyone holding the Leased
Premises, or any part thereof, through or under Tenant. Tenant shall pay and
obtain a release of record of any such lien, by payment thereof or if Tenant
intends to contest the lien by filing a bond or other security or collateral
reasonably acceptable to Landlord, within thirty (30) days after the date of
filing thereof, failing which, and in addition to any other rights of Landlord
hereunder, Landlord shall have the right to vacate and release the same and
charge the cost thereof (including attorneys' fees) to Tenant, such charge to
be due and payable upon demand. Tenant shall defend, indemnify and hold
Landlord harmless from and against any and all liability, loss, damage, cost
and expense (including court costs and attorneys' fees) arising out of or in
connection with any such lien or the enforcement or removal thereof.
Article 10
Landlord's Right of Entry
Landlord and Landlord's employees, agents and contractors, and their
respective employees and agents, shall be permitted during the Lease Term to
inspect the Leased Premises, after first giving Tenant such notice as is
reasonable under the circumstances, (except in the case of an emergency when
prior notice shall not be required), during reasonable business hours (except
in the case of an emergency) for the purposes of (a) ascertaining the condition
of the Leased Premises; (b) making semi-annual mutual inspections; (c)
inspecting any replacements or repairs or the performing any other act as may
be required of Landlord or Tenant under the terms of this Lease; and (d)
showing the Leased Premises to prospective tenants, purchasers or mortgagees.
Article 11
Taxes
Tenant shall, (subject to Tenant's right to contest as set forth
hereafter), in all instances, pay and discharge at its sole expense, all
duties, taxes, assessments, impositions, or charges of any kind, license and
permit fees, and other governmental levies and charges of every kind and nature
whatsoever, general and special, extraordinary as well as ordinary, whether
foreseen or unforeseen, which shall during the Lease Term be laid, levied,
assessed, imposed, become due and payable, or
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liens upon, or arise in connection with the ownership, use, occupancy or
possession of the Leased Premises, or any part thereof, or any appurtenances
thereto, or the streets, sidewalks, vaults, curbs and gutters adjoining the
Leased Premises, or the leasehold estate hereby created, by virtue of any
present or future law, ordinance, order, regulation, rule or requirement of any
government (whether federal, state or local), municipality or other
governmental authority, including any agency or department thereof. In
addition, Tenant shall pay and discharge any and all taxes and other charges
levied, assessed or imposed upon the fixtures, furnishings, equipment and all
other personal property of Tenant in, upon or about the Leased Premises, and
any license or excise covering business conducted in the Leased Premises. The
duties, taxes, assessments, impositions, charges, fees and payments
above-described are sometimes referred to herein collectively as "Impositions".
Nothing contained herein shall require Tenant to pay any inheritance, estate,
succession, transfer, gift, franchise, corporation, income or profit tax or
capital levy that is or may be imposed upon Landlord, unless such described tax
shall be levied upon the rent herein reserved, or otherwise imposed on
Landlord, in replacement of or substitution for any Impositions as are
presently levied, assessed or imposed.
All Impositions shall be paid by Tenant to the governmental
authorities charged with the collection thereof on or before the last day upon
which the same may be paid without interest or penalty for the late payment
thereof and Tenant shall forward a copy of the paid tax xxxx to Landlord within
thirty (30) days of such payment to the applicable governmental authority. In
the case of Impositions which may be payable in installments, installments
shall be payable within the longest period provided by law, be prorated with
Tenant charged during the term hereof, and Tenant shall only be obligated to
pay such installments as the same fall due during the Lease Term.
Any real estate taxes or water and sewer rents imposed for the
applicable fiscal tax period in which the Lease Term begins or ends shall be
prorated and adjusted between Landlord and Tenant.
Landlord shall forthwith forward to Tenant all applicable tax bills as
received by Landlord or cause the same to be directly sent to Tenant and Tenant
shall provide to Landlord within sixty days (60) after the due date for payment
of such Imposition, reasonable evidence that such Imposition has been timely
paid. If the present method of assessing, levying or charging general public
revenue or taxes against or upon the Leased Premises shall be changed during
the term of this Lease so that such taxes, assessments or charges, instead of
being assessed or levied directly against the land or improvements constituting
the Leased Premises, be levied, assessed or charged in lieu thereof, in whole
or in part, against Landlord's reversionary interest in the same or against the
rent or income arising from the use or occupancy of the Leased Premises, then
in such event, Landlord shall forthwith timely advise Tenant of each such
change, and Tenant shall pay
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every such Imposition so made, subject always to Tenant's right to contest such
change as permitted hereafter. All such Impositions for any fractional year
within the term of this Lease shall be prorated between Landlord and Tenant on
a pro rata basis, with Tenant paying only such portions thereof which are
properly allocable to the term of this Lease.
Tenant shall have the right, in its or Landlord's name, to contest in
good faith the validity of any Imposition, or the method of assessment thereof,
which Tenant is required to bear, pay and discharge hereunder, and for that
purpose shall have the right to institute such proceedings in name of Landlord
as it may deem necessary, provided that expenses incurred by reason thereof
shall be paid by Tenant. Tenant further agrees that it shall diligently
prosecute such contest, at all times effectually stay or prevent any official
or judicial sale of the Leased Premises, under execution or otherwise, and pay
any final judgment enforcing such contested Imposition and thereafter promptly
procure record satisfaction or release thereof. Tenant further agrees that if
it becomes necessary to institute an action in a court of competent
jurisdiction in order to contest such Imposition then, in that event, it shall
give Landlord at least ten (10) days' prior written notice of its intention to
institute such action and at the same time furnish Landlord a bond in such
amount as Landlord may designate, executed by a corporate surety licensed to do
business in the state where the Leased Premises are located and acceptable to
Landlord, indemnifying and protecting Landlord and any other person now or
hereafter having any interest, whether as security for indebtedness or
otherwise, in the Leased Premises from and against all liability, loss, damage,
cost and expense of whatever kind or nature growing out of or in any way
connected with the fee, tax, assessment or other charge complained of or the
contest thereof.
Article 12
Insurance
Tenant agrees to secure, maintain and keep in force at all times
during the Lease Term, at Tenant's sole cost and expense, the following
policies of insurance:
(a) Direct Property Damage Insurance covering the
building and other improvements (including leasehold improvements) on
the Leased Premises to the extent of one hundred percent (100%) of the
full replacement cost thereof, exclusive of the cost of excavations,
foundations, and footings and all improvements and fixtures required
to be insured by Tenant pursuant to Article 12(c) hereof, providing
protection against perils that are covered under standard insurance
industry practices within the classification of all risk property
damage insurance. Such insurance shall name as an
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additional insured Landlord and any other parties in interest as may be
from time to time designated in writing by notice from Landlord to
Tenant. In addition, such insurance shall be made payable to Tenant,
Landlord and such additional parties in interest from time to time
designated by Landlord to Tenant, as their interest may appear.
(b) Comprehensive General Liability Insurance covering
the Leased Premises and Tenant's use thereof against claims for bodily
injury or death, property damage or personal injury, however caused,
with a combined single limit of not less than two million dollars
($2,000,000) for bodily injury and property damage. Such insurance
shall, in addition to premises and operations liability, include
contractual liability insurance to cover all contractual liability
assumed by Tenant under or by virtue of this Lease (including, without
limitation, Article 15 hereof), broad form property damage, loss of
rental income, Product and Completed operations liability. In
addition, motor vehicle liability coverage with not less than $1
million dollar policy limits shall be kept in force by Tenant at all
times during the term of this Lease. All such insurance shall name as
an additional insured Landlord and any other parties in interest as
may be from time to time designated in writing by notice from Landlord
to Tenant. In addition, such insurance shall be made payable to
Tenant, Landlord and such additional parties in interest from time to
time designated by Landlord to Tenant, as their interest may appear.
Tenant shall further maintain, at its sole cost during the
term of this Lease Excess or Umbrella Liability insurance with minimum
limits of $10 million; naming Landlord as an additional insured.
(c) [RESERVED]
(d) Comprehensive Boiler and Machinery insurance coverage,
covering all boilers, pressure vessels, production equipment,
air-conditioning equipment and electrical equipment which serve the
Leased Premises, with per occurrence limits of not less than two
million dollars ($2,000,000).
(e) Workers' Compensation Insurance (including
occupational disease insurance) as may be from time to time required
by the laws of the state in which the Leased Premises are located;
(f) Employers' Liability Insurance with a per occurrence
limit of not less than $500,000;
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All such policies of insurance shall be issued by insurance companies
licensed and admitted to do business in the State in which the Leased Premises
are located, which are reasonably acceptable to Landlord and having a rating of
A+ or better. In addition, all such policies of insurance shall contain an
endorsement providing that such insurance may not be materially changed,
amended or cancelled except after thirty (30) days' prior written notice from
the insurance company to Landlord, sent by registered mail or nationally
recognized overnight courier (e.g. Federal Express). The original policy or
policies shall be made available, from time to time, upon request of Landlord
to review and/or copy and Tenant shall deliver to Landlord together reasonably
satisfactory evidence of payment of the premium thereof, on or before the
commencement date of the Lease Term. Prior to expiration of each policy term,
Tenant shall deliver to Landlord written proof of renewal or continuation of
the policies and will deliver to Landlord certificates of insurance within 20
days after renewal or issuance of the policies. If Tenant at any time fails or
refuses to procure and maintain the required amount of insurance, then Landlord
may, immediately and without notice to Tenant, obtain same for and on behalf of
Tenant and charge the cost thereof to Tenant, such charge to be due and payable
upon demand.
Except for the intentional acts of the Landlord, Tenant, and all
parties claiming under or through Tenant, hereby expressly releases and
discharges Landlord from any claim or liability, whether based on negligence or
any reason whatsoever, for any personal injury, property damage, or other loss
covered by Tenant's insurance. The aforesaid release shall apply only when
permitted by the applicable policy of insurance. All policies of Tenant shall
contain an endorsement containing an express waiver of any right of subrogation
by the insurance company against Landlord, provided that this waiver shall not
be applicable if it has the effect of invalidating any insurance coverage of
Landlord or Tenant, or if the applicable insurance policies do not contain a
clause to the effect that this waiver shall not affect the right of the insured
to recover under such policies.
Article 13
Escrow
Notwithstanding the provisions of this Lease, if Tenant, or any
successor or assignee then a tenant under this Lease as the Tenant, shall fail
at any time during the term of this Lease to maintain a net worth in excess of
one hundred million dollars (as determined in accordance with generally
accepted accounting principles), then Landlord may upon written notice to
Tenant require Tenant for the remainder of the Lease Term, (notwithstanding a
subsequent net worth in excess of one hundred million dollars) to (i) deliver
the security deposit required under Article 2; (ii) carry a deductible not
greater than $10,000 under the property damage insurance described in Article
12(a); and (iii) pay to Landlord for each calendar year during the Lease Term
the
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amount of the Impositions imposed upon the Leased Premises and the amount of
premiums for all insurance policies required to be provided by Tenant
hereunder, in equal monthly installments on the first day of each month during
the Lease Term. Such monthly payments shall in the first instance be
reasonably estimated by Landlord based on the Impositions and premiums paid for
the prior year, with appropriate adjustments made at least annually thereafter.
No interest shall be paid by Landlord to Tenant on such monthly payments, but
they will be kept by Landlord in a separate escrow account, the funds thereof
shall be employed by Landlord to pay Impositions and premiums as they mature.
If at any time the funds held by Landlord shall be insufficient to pay any and
all Impositions and premiums as the same shall mature, Tenant shall, within ten
(10) days after notice thereof from Landlord, deposit with Landlord an amount
sufficient to make up any deficiency therefor. Tenant represents that its
present net worth is in excess of one hundred million dollars.
Article 14
Indemnity
Tenant hereby agrees to defend, pay, indemnify and save free and
harmless Landlord, its officers, directors, agents and employees, from and
against any and all claims, demands, fines, suits, actions, proceedings,
orders, decrees and judgments of any kind or nature by or in favor of anyone
whomsoever and from and against any and all costs and expenses incurred by
Landlord, including attorneys' and other professional fees, resulting from or
in connection with any of the following unless the same are caused by
Landlord's intentional acts: (a) any accident, bodily injury, death, personal
injury of any kind, or property damage arising, directly or indirectly, out of
or from or on account of any occurrence in, upon, at or about the Leased
Premises and the adjoining parking areas, sidewalks, streets, vaults and
passageways; (b) any accident, bodily injury, death, personal injury or
property damage arising, directly or indirectly, in connection with Tenant's
operation and conduct of business in the Leased Premises; (c) any use,
occupancy, nonuse or condition of the Leased Premises; and (d) any failure on
the part of Tenant to perform or comply with any of the agreements, terms,
covenants and conditions of this Lease.
Except for the intentional acts of Landlord, Landlord shall not be
liable for any damage or injury to the person, business (or any loss of income
therefrom), goods, wares, merchandise or other personal property of Tenant,
Tenant's employees, agents, invitees and customers, or any other occupant of
the Leased Premises; nor for any failure of a water supply, gas, electric
current or any other utility, nor for any damage occasioned by failure to keep
the building, property or Leased Premises in repair. Landlord shall not be
liable to Tenant for any damage to person or property done or occasioned by or
from electric current, plumbing, gas, water, steam or sewage, odors, or the
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bursting, leaking, running or failure of operation of any radiator, tank, water
closet, washstand, waste pipe, air conditioning or any other apparatus in,
above, upon or about the building, property or Leased Premises, nor for damage
or injury to person or property occasioned by water, snow, or ice being upon
any roof, sidewalk or entrance way, or being upon or coming through such
entrance way or any skylight, trap door or any other opening in the building,
property or Leased Premises, nor for loss resulting from theft or mysterious
disappearance, action of the elements, or any interference with light or air,
nor for any damages arising from the omission, action or negligence of Tenant,
co-Tenants or other occupants of the building or of any owners or occupants of
adjacent or contiguous property or acts of negligence by Landlord.
In case any action, suit or proceeding is brought against Landlord by
reason of any such occurrence as described in this Article 14, Tenant or
Tenant's insurer, upon Landlord's request, will at no expense to Landlord
resist and defend such action, suit or proceeding or cause the same to be
resisted and defended by counsel designated by Tenant and approved by Landlord.
The obligations of Tenant under this Article shall survive any termination of
this Lease.
Article 15
Damage or Destruction
In the event of any damage or loss to the Leased Premises, Tenant
shall give immediate written notice thereof to Landlord. If the building on
the Leased Premises shall at any time be damaged or destroyed by fire or other
cause whatsoever, Tenant shall promptly repair or rebuild same at Tenant's
expense, so as to make the building at least equal in value to the building
existing immediately prior to such occurrence and as nearly similar to it in
character as shall be practicable and reasonable; and Tenant shall do so, even
though the proceeds of any insurance policies shall be insufficient to
reimburse Tenant therefor.
There shall be no abatement of rent pending any repairs or rebuilding,
nor shall Tenant's obligations hereunder be terminated, notwithstanding any
destruction or damage to the Leased Premises.
Before beginning such repairs or rebuilding, or letting any contracts
in connection therewith, Tenant shall submit for Landlord's approval, which
approval shall not be unreasonably withheld or delayed, complete and detailed
plans and specifications thereof and a listing of all contractors and
subcontractors intended to perform any part of the work. Promptly after
receiving Landlord's approval, Tenant shall begin such repairs or rebuilding
and shall prosecute the same to completion with due diligence. All work shall
be done in a good and workmanlike manner employing appropriate new materials in
accordance with the plans and specifications approved by Landlord, and in
compliance with all
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applicable governmental and insurance requirements. Landlord, its employees,
agents and authorized architects and engineers shall have the right, at any
time during the performance of the work, to inspect the building and the
contracts, plans, specifications, drawings and all other records of Tenant, its
architect, contractors and subcontractors, relating to such repairs or
rebuilding. If Landlord or its authorized representative shall determine that
the work is not being done in accordance with the plans and specifications
approved by Landlord, then upon notice to Tenant specifying any deficiency,
Tenant shall take all steps necessary to promptly correct any such deficiency.
The reasonable charges of any architect or engineer of Landlord employed to
pass upon any plans and specifications and to supervise and approve any
construction shall be paid by Tenant as a cost of the repair or rebuilding.
Notwithstanding the foregoing in this Article 15, in the event of a
casualty for which the amount of damages to the improvements of the Leased
Premises exceeds an amount equal to eighty percent (80%) of the assessed fair
market value of such improvements on the Leased Premises (as determined by the
Real Estate Tax Assessor's office of the county in which the Leased Premises is
located), immediately prior to such casualty; then Landlord may elect within
sixty (60) days of such casualty upon written notice to Tenant to either (i)
require Tenant to rebuild as set forth above in Article 15; or (ii) terminate
the Lease and retain the insurance proceeds; whereupon neither party shall have
any further liability or obligation to the other, except as otherwise provided
elsewhere in this Lease.
Article 16
Condemnation
If the whole of the Leased Premises shall be acquired or taken by
eminent domain for any public or quasi-public use or purpose, or by private
purchase in lieu thereof, then this Lease and the Lease Term hereof shall
automatically cease and terminate as of the date of title vesting in such
proceedings. If only a part of the Leased Premises shall be so acquired or
taken and the remainder is untenantable for the purpose for which Tenant has
been using the Leased Premises then either party shall have the option to
terminate this Lease upon ninety (90) days prior written notice to the other.
If only a part of the Leased Premises shall be so acquired or taken and the
remainder is tenantable for the purpose for which Tenant has been using the
Leased Premises, then this Lease and all of the terms and provisions hereof
shall continue in full force and effect, except that the net annual rental
shall be reduced in the same proportion that the floor area of the building
forming a part of the Leased Premises taken bears to the original floor area of
such building demised hereunder, and Landlord shall, upon receipt of the award
in condemnation, make all necessary repairs or alterations to the building so
as to constitute the remaining premises a complete architectural unit;
provided,
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however, that Landlord, in any event, shall not be required to spend for such
repair and alteration work an amount in excess of the respective amounts
received by Landlord (free and clear of all claims of mortgagees and ground or
underlying lessors and Landlord's costs and professional fees from the action)
as damages for the taking of such part of the Leased Premises. The taking or
condemnation of any parking areas or other open space of the Leased Premises or
any sale, grant, dedication or taking of peripheral or perimeter parts or
portions of the Leased Premises for road widening or road improvement purposes
or for the installation of utilities shall not affect this Lease and Tenant
shall not, in any such event, be entitled to compensation, diminution or
abatement of any rent or other charges.
All damages or compensation awarded or paid for any taking or
condemnation, whether for the whole or a part of the Leased Premises or any
part of the land, buildings and improvements constituting the Leased Premises,
shall belong to and be the property of Landlord without any participation by
Tenant, whether such damages or compensation shall be awarded or paid for
diminution in value of the fee or any interest of Landlord in any ground or
underlying lease covering the Leased Premises or in the leasehold estate
created hereby. Tenant hereby expressly waives and relinquishes all claims to
such award or compensation, or any part thereof, and of the right to
participate in any such condemnation proceedings against the owners of any
interest in the Leased Premises; provided, however, that nothing herein
contained shall be construed to preclude Tenant from prosecuting any claim
directly against the condemning authority, but not against Landlord, for the
value of or damages to and/or the cost of removal of Tenant's property upon the
expiration of the Lease Term, as may be recoverable by Tenant in Tenant's own
right so long as no such claim shall diminish or otherwise affect Landlord's
award. Provided, however, that if as a result of such taking Tenant is
required to replace the parking area or provide new access, in order to use the
Premises in substantially the same manner as before the taking, the cost
incurred by Tenant for such replacement shall be prorated against the rent
becoming due over the remainder of the Lease Term. Tenant shall provide
Landlord with written documentation of such costs reasonably acceptable to
Landlord prior to any such adjustment of rent. Landlord may also elect to
provide an adjacent replacement area, in lieu of the above remedy for Tenant.
Article 17
Mortgaging; Assignment; Subletting
Neither Tenant nor its legal representatives or successors in
interest, by operation of law or otherwise, shall assign, mortgage or otherwise
transfer or encumber this Lease or any interest therein, or sublet or otherwise
permit the Leased Premises or any part thereof to be used or occupied by others
except (i) with the prior written consent of Landlord, which shall
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not be unreasonably withheld, or (ii) to another entity controlled by Tenant.
Any consent by Landlord to any act of mortgaging, assignment or subletting
shall apply only to the specific action authorized. Such consent shall not be
construed as a waiver of the duty of Tenant, its representatives, successors or
assigns, to obtain Landlord's consent to any other or subsequent mortgaging,
assignment or subletting. Any attempted mortgaging, assignment or subletting
without Landlord's prior written consent shall be void and be deemed an Event
of Default hereunder. Any mortgaging, assignment or subletting as permitted by
(i) or (ii) above, will not release or discharge Tenant from any liability
whatsoever under this Lease, and Tenant will remain liable for the performance
and observance of each and every agreement, term, covenant and condition of
this Lease.
In the event that Tenant, upon Landlord's prior written consent, shall
sublet the Leased Premises for a rental in excess of the rent provided for
herein from Tenant to Landlord, then notwithstanding any other provision
contained in this Lease to the contrary, the rent provided for herein shall
automatically be increased during the term of such sublease to a sum equal to
the amount of rent payable under such sublease. In the event that Tenant shall
receive any valuable consideration for an assignment of the Tenant's interest
in this Lease, then, notwithstanding any other provision contained in this
Lease to the contrary, Tenant shall pay to Landlord as additional rent
hereunder the amount of consideration thereby received.
Landlord shall have the right to assign this lease at any time, upon
written notice to Tenant, whereupon Landlord shall be released from all further
or other obligations or liabilities subsequently arising from and after the
date of such assignment. Assignee will assume the Landlord's obligations under
the terms of the Lease. The Assignee of the Landlord shall have a net worth
equal to the then net worth of the Landlord as determined in accordance with
generally accepted accounting practices. Landlord shall provide Tenant with
written notice of any assignment of this Lease.
Article 18
Subordination and Attornment
The rights of Tenant under this Lease shall, at Landlord's election,
be subject and subordinate at all times to all ground leases and/or underlying
leases, if any, now or hereafter in force against the Leased Premises or any
part thereof, and to the lien of any mortgage or mortgages now or hereafter in
force against such leases and/or the Leased Premises, and to all advances made
or hereafter to be made upon the security thereof, and to all renewals,
modifications, consolidations, replacements and extensions thereof. The term
"mortgages" as used in this Lease shall be deemed to include trust indentures
and deeds of trust.
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The aforesaid provisions shall be self-operative upon notice of election by
Landlord to Tenant and no further instrument of subordination shall be
required. Tenant hereby irrevocably appoints Landlord attorney-in-fact for
Tenant with full power and authority to execute and deliver in the name of the
Tenant any such instrument or instruments.
Tenant agrees that in the event of a sale, transfer or assignment of
Landlord's interest in the Leased Premises, or in the event that any
proceedings are brought for the foreclosure of or exercise of any power of sale
under any mortgage affecting the Leased Premises, or if a deed in lieu thereof
be given, or in the event any ground or underlying lease is cancelled or
terminated, Tenant shall attorn to and recognize such transferee, purchaser,
mortgagee or other party in interest as Landlord under this Lease and to affirm
this Lease so long as such transferee agrees not to disturb Tenant's rights
under this Lease.
Article 19
Estoppel Certificates
Tenant agrees, at any time and from time to time, upon not less than
ten (10) days prior written notice from Landlord, to execute, acknowledge and
deliver to Landlord a statement in writing certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications
that the same is in full force and effect as modified and stating the
modifications), the dates to which the rent and other charges have been paid in
advance, if any, and such other matters pertaining to this Lease as may be
requested by Landlord. It is understood and agreed that Tenant's obligation to
furnish such estoppel certificate in a timely fashion is a material inducement
for Landlord's execution of this Lease. Tenant does hereby appoint Landlord as
its attorney-in-fact to execute any such estoppel certificate. It is intended
that any such statement delivered pursuant to this Article may be relied upon
by present or prospective mortgagees, purchasers, ground lessors or any
assignee of any of the foregoing in connection with Landlord's interest in the
Leased Premises.
Article 20
Quiet Enjoyment
Tenant upon paying the rents reserved and performing and observing all
other agreements, terms, covenants and conditions of this Lease on Tenant's
part to be performed and observed hereunder, shall peaceably and quietly have,
hold and enjoy the Leased Premises during the Lease Term, subject, nevertheless
to any ground leases, mortgages, agreements or encumbrances to which this Lease
is or may be subordinated.
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Article 21
Cure of Tenant's Default
If Tenant shall fail to make any payment or perform any act required
hereunder to be made or performed by Tenant hereunder, then Landlord may, but
shall be under no obligation to, after such notice to Tenant and expiration of
any applicable cure period as may be provided for under Article 22 of this
Lease, make such payment or perform such act with the same effect as if made or
performed by Tenant. Entry by Landlord upon the Leased Premises for such
purpose shall not waive or release Tenant from any default or obligation
hereunder. Tenant shall reimburse Landlord for all sums so paid and all costs
incurred, including attorneys' fees, upon Landlord's demand therefor.
Article 22
Default
If any one or more of the following events (herein referred to as an
"Event of Default") shall occur:
(a) if default be made in the due and punctual payment of
any rent or other charges, or any part hereof, payable to Landlord
hereunder, when and as the same shall become due, and such default
shall continue for a period of five (5) days;
(b) if this Lease be mortgaged, assigned or the Leased
Premises or any part thereof be sublet, either voluntarily or by
operation of law, without Landlord's prior written consent as set forth
in Article 17 hereof;
(c) [RESERVED]
(d) if Tenant shall fail to observe, perform or comply
with any of the terms, covenants and conditions in this Lease other
than those provided in subparagraphs (a), (b) and (c) above, within
thirty (30) days after notice from Landlord specifying the nature of
such default; provided, however, that no Event of Default shall be
deemed to occur so long as the curing of such default reasonably may
not be completed within such thirty (30) day period and Tenant has
commenced to cure such default and thereafter with reasonable
diligence pursues its efforts to cure and does so cure within ninety
(90) days;
(e) if Tenant shall file a voluntary petition in
bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall
file any petition or answer seeking any reorganization, readjustment,
liquidation, dissolution or similar relief under any bankruptcy or
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insolvency statute or law of the United States or any State, or shall
seek or consent to or acquiesce in the appointment of any bankruptcy or
insolvency trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties or of the Leased Premises;
(f) if within sixty (60) days after the commencement of
any involuntary proceeding against Tenant seeking any reorganization,
readjustment, liquidation, dissolution or similar relief under any
bankruptcy or insolvency statute or law, Tenant fails to secure a
dismissal and discharge thereof; or
(g) if there shall be an "Event of Default" (as defined
therein) under the Lease dated February 26, 1997, between Papetti
Holding Company and Xxxxxxx Foods, Inc. (relating to certain premises
located in Pennsylvania) which Event of Default under such other lease
is not promptly cured within the applicable cure period, if any.
then and in any such event Landlord, at its option, may at any time thereafter
(in addition to and/or as an alternative to all other legal remedies):
(a) immediately terminate this Lease and Tenant's right to
possession of the Leased Premises; or
(b) terminate only the Tenant's right to possession of
the Leased Premises, without terminating this Lease or releasing
Tenant in whole or in part from Tenant's obligations hereunder for the
full term hereof; or
(c) without terminating this Lease or Tenant's right to
possession of the Leased Premises, enter upon the Leased Premises and
do and perform whatever Tenant is obligated to do under the terms of
this Lease.
In the event Landlord exercises its rights under subparagraph (a) or
(b) immediately above, Tenant shall quit and peacefully surrender the Leased
Premises to Landlord, and Landlord, upon or at any such expiration or
termination, may without further notice, enter upon and reenter the Leased
Premises and possess and repossess itself thereof, as provided by law,
dispossess Tenant and remove Tenant and all other persons and property from the
Leased Premises and may have, hold and enjoy the Leased Premises and the right
to receive all rental income of and from the same, and further, Landlord may
collect damages in accordance with the law.
If Tenant's right to possession of the Leased Premises shall be
terminated pursuant to this Article 22, by summary proceedings or otherwise,
Landlord may in its own name, as agent for Tenant if this Lease not be
terminated, or if this Lease be terminated, in its own behalf, enter into
possession of and relet
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the Leased Premises or any part thereof, or said premises with additional
premises, for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the Lease Term) and on
such conditions (which may include concessions, free rent and/or alterations of
the Leased Premises) as Landlord, in its uncontrolled discretion, may determine
and may collect and receive the rents therefor. Landlord shall in no way be
responsible or liable for any failure to relet the Leased Premises or any part
thereof, or of any failure to collect any rent due upon such reletting.
No such expiration or termination of this Lease, or termination of
Tenant's right of possession thereunder, shall relieve Tenant of its liability
and obligations under this Lease, unless otherwise agreed to in writing by
Landlord, whether or not the Leased Premises shall be relet. Upon an event of
default, Tenant shall pay Landlord the rent and all other charges required to
be paid hereunder by Tenant up to the time of such event. Thereafter:
(a) Tenant, until the end of the Lease Term, or what
would have been such term in the absence of any such event, shall be
liable to Landlord as damages for Tenant's default, the equivalent of
the amount of the rent and other charges which would be payable under
this Lease by Tenant if this Lease were still in effect, less the net
proceeds of any reletting effected pursuant to the provisions hereof,
after deducting all of Landlord's expenses in connection with such
reletting, including, without limitation, all repossession costs,
brokerage and management commissions, operating expenses, legal
expenses, reasonable attorneys' fees, and expenses of preparation of
such reletting. Tenant shall pay such damages (herein called
"deficiency") to Landlord monthly on the days on which the net rent
would have been payable under this Lease if this Lease were still in
effect, and Landlord shall be entitled to recover from Tenant each
monthly deficiency as the same shall arise.
(b) At any time after the expiration or termination of
this Lease, in lieu of collecting any further monthly deficiencies as
aforesaid, Landlord shall be entitled to recover from Tenant, and
Tenant shall pay to Landlord, on demand, as liquidated damages and not
as a penalty, an amount equal to the difference between the total
rental and other benefits which would have accrued to Landlord under
this Lease from the date of termination to the date of the expiration
of the original term demised and the then fair and reasonable rental
value of the Leased Premises for the same period. Tenant shall
remain liable for any monthly deficiencies not previously recovered by
Landlord. In the computation of such liquidated damages, the
difference between any installment of rent thereafter becoming due and
the fair and reasonable rental value of
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the Leased Premises for the period for which such installment was
payable shall be discounted to the date of termination at the rate of
not more than five percent (5%) per annum.
If the Leased Premises or any part thereof be relet by Landlord for
the unexpired term of this Lease, or any part thereof, before presentation of
proof of such liquidated damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall prima facie be the fair and
reasonable rental value for the part or the whole of the Leased Premises so
relet during the term of the reletting. Nothing herein contained shall limit
or prejudice the right of Landlord to prove for and obtain as liquidated
damages by reason of such termination, an amount equal to the maximum allowed
by any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved, whether or not such amount
be greater, equal to, or less than the amount of the difference referred to
above.
If this Lease be terminated by summary proceedings or otherwise, or if
Tenant's right to possession of the Leased Premises shall be terminated, and
whether or not the Leased Premises be relet, Landlord shall be entitled to
recover from Tenant, and Tenant shall pay to Landlord, in addition to any
damages becoming due under this Article 22, the following: an amount equal to
all expenses, if any, including reasonable attorneys' fees, incurred by
Landlord in recovering possession of the Leased Premises, (whether or not
litigation be commenced in aid thereof), and all costs and charges for the care
of said Leased Premises while vacant, which damages shall be due and payable by
Tenant to Landlord at such time or times as such expenses are incurred by
Landlord.
Tenant hereby expressly waives, so far as permitted by law, the
service of any notice of intention to reenter provided for in any statute and
except as is herein otherwise provided Tenant, for and on behalf of itself and
all persons claiming through or under Tenant (including any leasehold mortgagee
or other creditor), also waives any and all right of redemption or reentry or
repossession in case Tenant shall be dispossessed by a judgment or by warrant
of any court or judge or in case of reentry or repossession by Landlord or in
case of any expiration or termination of this Lease. The terms "enter,"
"reenter," "entry" or "reentry" as used in this Lease are not restricted to
their technical legal meanings.
Tenant hereby waives all right to trial by jury in any action or
proceeding hereafter instituted by Landlord against Tenant with respect to this
Lease or the Leased Premises. Tenant agrees not to interpose any counterclaim
of any nature or description in any action or proceeding. The foregoing,
however, shall not be construed as a waiver of Tenant's right to assert any
claim in a separate action or proceeding instituted by Tenant.
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In the event of any breach or threatened breach by Tenant of any of
the agreements, terms, covenants or conditions contained in this Lease,
Landlord shall be entitled to enjoin such breach or threatened breach and shall
have the right to invoke any right and remedy allowed at law or in equity or by
statute or otherwise as though reentry, summary proceedings, and other remedies
were not provided for in this Lease.
Article 23
No Waiver
No failure by Landlord to insist upon the strict performance of any
agreement, term, covenant or condition hereof or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance of full or partial
rent during the continuance of any such breach, shall constitute a waiver of
any such breach or of such agreement, term, covenant or condition. No
agreement, term, covenant or condition hereof to be performed or complied with
by Tenant, and no breach thereof, shall be waived, altered or modified except
by a written instrument executed by Landlord. No waiver of any breach shall
affect or alter this Lease, but each and every agreement, term, covenant and
condition hereof shall continue in full force and effect with respect to any
other then existing or subsequent breach thereof.
Article 24
Remedies Cumulative
Each right and remedy provided for in this Lease shall be cumulative
and shall be in addition to every other right or remedy provided for in this
Lease or now or hereafter existing at law or in equity or by statute or
otherwise, and the exercise or beginning of the exercise by Landlord of any one
or more of the rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise shall not
preclude the simultaneous or later exercise by Landlord of any or all other
rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise.
Article 25
Surrender of Premises; Holding Over
Upon the expiration or sooner termination of the Lease Term, Tenant
agrees to quit and surrender the Leased Premises, clean and in good condition
and repair, normal wear and tear and insured casualty excepted, together with
all keys and combinations to locks, safes and vaults and all improvements,
alterations, additions, fixtures, equipment and decorations at any time made or
installed in, upon or to the interior or exterior of the Leased Premises
(except movable furniture, furnishings, equipment and other personal property
of Tenant put in at Tenant's expense), all
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of which shall thereupon become the property of Landlord without any claim by
Tenant therefor, but the surrender of such property to Landlord shall not be
deemed to be a payment of rent or in lieu of any rent reserved hereunder.
Before surrendering the Leased Premises, Tenant shall remove all of Tenant's
said personal property and, at Landlord's option, Tenant shall also, at
Tenant's expense, remove any alterations, additions, fixtures or equipment that
contains or constitutes a "Hazardous Substance" (as defined in Article 5 such
that the disposal of the same to a sanitary landfill is not permitted or is
otherwise regulated under applicable law), at any time made or installed by
Tenant in, upon or to the Leased Premises, and Tenant further agrees to repair
any damage caused thereby. If Tenant shall fail to remove any of Tenant's said
personal property or other property required by Landlord to be removed, said
property shall, at the option of Landlord, either be deemed abandoned and may
be disposed of by Landlord at Tenant's expense, or Landlord shall have the
right to remove and store said property, at the expense of Tenant, without
further notice to or demand upon Tenant and hold Tenant responsible for any and
all charges and expenses incurred by Landlord therefor. If the Leased Premises
be not surrendered as and when aforesaid, Tenant shall indemnify Landlord
against all loss or liability resulting from the delay by Tenant in so
surrendering the same, including without limitation, any claims made by any
succeeding occupant founded on such delay. If Tenant shall remain in
possession of the Leased Premises, or any part thereof, for any period after
the termination of this Lease in any of the ways above-named, Tenant shall pay
one and one-half (1.5) times the rent as a month-to-month hold over tenant
until such holding over shall cease. Tenant's obligations under this Article
shall survive the expiration or sooner termination of the Lease Term.
Article 26
Relationship of Parties
Nothing contained in this Lease shall be deemed to constitute or be
construed or implied to create the relationship of principal and agent,
partnership, joint venture or any other relationship between the parties
hereto, other than the relationship of Landlord and Tenant.
The term "Landlord" as used in this Lease means only the owner of the
current interest of Landlord in the Leased Premises or, as the case may be, the
successor thereto from time to time. In the event of any transfer at any time
of the interest of Landlord, the transferor shall be and is hereby entirely
freed and relieved of all covenants and obligations of Landlord hereunder
accruing from and after the date of such transfer, and it shall be deemed and
construed without further agreement between the parties or their respective
successors in interest or between the parties and the transferee that the
transferee of Landlord's interest has assumed and agreed to carry out any and
all covenants and obligations of Landlord thereafter accruing hereunder.
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Article 27
Successors and Assigns; Provisions Binding
Except as otherwise expressly provided in this Lease, all covenants,
conditions and provisions of this Lease shall be binding upon and shall inure
to the benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.
Each provision of this Lease to be performed by Tenant shall be
construed to be both a covenant and a condition, and if there shall be more
than one Tenant, they shall all be bound, jointly and severally, by the
provisions of this Lease. The persons executing this Lease on behalf of Tenant
hereby covenant, represent and warrant that Tenant is a duly incorporated and
duly qualified corporation and is authorized to do business in the State of its
incorporation and that the person or persons executing this Lease on behalf of
Tenant is an officer or are officers of such Tenant, and that he or they as
such officers are duly authorized to sign and execute this Lease.
Article 28
Notices
Every notice, demand, request or other communication which may be or
is required to be given under this Lease or by law shall be in writing and
shall be sent by United States Certified or Registered Mail, postage prepaid,
return receipt requested, or by nationally recognized overnight courier (e.g.
Federal Express) and shall be addressed: (a) if to Tenant, to Xxxxxxx Foods,
Inc. 0000 Xxxxxxx Xxxx., Xxxxx 000, Xxxxxxxxxxx, XX 00000, Attention: Xxxxxxx
X. Xxxxxxx; and (b) if to Landlord, to ASA Company, Xxx Xxxxxxx Xxxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx X. Xxxxxxx, with a copy to
Xxxxxx X. X'Xxxxxx, XX, X'Xxxxxx, Xxxxx & X'Xxxxxx, Liberty Hall Center, 0000
Xxxxxx Xxxxxx, Xxxxx, XX 00000-0000, and the same shall be deemed delivered
one (1) business day after being sent via nationally recognized overnight
courier (e.g., Federal Express) or three (3) business days after being mailed
by U.S. Certified or Registered mail, return receipt requested. Either party
may designate, by similar written notice to the other party, any other address
for such purposes.
Article 29
Miscellaneous
Tenant agrees not to record this Lease or any memorandum thereof
without the prior written consent of Landlord.
Each party covenants, warrants and represents to the other that there
was no broker instrumental in consummating this Lease and that no conversations
or prior negotiations were had by such party with any broker concerning the
renting of the Leased
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Premises. Each party agrees to indemnify and hold the other harmless against
and from all liabilities, including attorneys' fees, arising from any claims
for brokerage commissions or finders' fees resulting from or arising out of any
conversations or negotiations had by such party with any broker.
Tenant agrees to annually make available for review by Landlord and
its lenders such financial information and statements as the same may
reasonably request, provided, Landlord and its lenders agree to keep such
information and statements confidential to the extent the same is not public
information.
Article 30
Entire Agreement; Construction
This Lease sets forth the entire agreement between the parties
respecting the Leased Premises. There are no understandings, agreements,
statements, promises, representations or warranties, express or implied, not
specified herein respecting the Leased Premises and all prior conversations and
writings by or between the parties or their representatives are merged herein
and extinguished. This Lease shall not be modified except by a writing
subscribed to by the party to be charged, nor may this Lease be cancelled by
Tenant or the Leased Premises surrendered except with the express written
authorization of Landlord.
This Lease shall be construed, as to both validity and performance,
and enforced in accordance with and shall be governed by the laws of the
jurisdiction in which the Leased Premises are located, without regard to such
jurisdiction's principles of conflicts of law. If any provision of this Lease
or the application thereof to any person or circumstance shall to any extent be
held void or invalid, then the remainder of this Lease or the application of
such provision to persons or circumstances other than those as to which it is
held void or invalid shall not be affected thereby, and each provision of this
Lease shall be valid and enforced to the fullest extent permitted by law.
The headings in this Lease are for purposes of reference only and
shall not limit or define the meaning hereof. This Lease may be executed in
any number of counterparts, each of which is an original, but all of which
shall constitute one instrument.
Article 31
Binding Arbitration
In the event that a dispute arises between Landlord and Tenant such
matter shall be submitted to binding arbitration as follows:
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(1) Any arbitration hereunder shall be held pursuant to
the Commercial Arbitration Rules of the American Arbitration Association except
that:
(i) Landlord and Tenant shall each select one
arbitrator. The two appointed arbitrators shall jointly choose
a third arbitrator from a list provided by the American
Arbitration Association and the third arbitrator shall be the
sole arbitrator to hear the dispute. If either party fails to
appoint an arbitrator within twenty (20) days after demand by
the other party, or the appointed arbitrators fail to agree to
the third arbitrator within twenty (20) days after a list of
potential arbitrators is provided by the American Arbitration
Association, the American Arbitration Association shall select
an arbitrator for the party failing to make appointment or
shall appoint the third arbitrator, as the case may be.
(ii) The arbitration shall be held in the City in
which any facility leased hereunder is located, or such other
location as the parties shall mutually agree.
(iii) The parties shall bear their own expenses of
the arbitration, including attorneys fees and costs of expert
witnesses.
(iv) The filing or other fees of the American
Arbitration Association shall be paid one-half by the Landlord
and one-half by the Tenant.
(v) The award of the arbitrators shall be binding
and shall be enforceable in any court of the state in which
the Premises are located.
(2) If the American Arbitration Association is not then
in existence or refuses to administer the arbitration, the arbitration shall be
administered by the most nearly comparable organization as shall be agreed by
the parties, or failing agreement, as shall be determined by the Union County
Superior Court of Elizabeth, New Jersey.
(3) Notwithstanding anything herein to the contrary,
either party shall have the right to seek injunctive relief to maintain the
status quo until a dispute between the parties can be arbitrated.
In the event that a dispute arises between Landlord and Tenant
involving an amount which is greater than the then current annual base rent
under this Lease, such matter shall be litigated by the parties.
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Article 32
Choice of Law; Jurisdiction.
This Lease shall be governed, construed, applied and enforced in
accordance with the laws of the state in which the Premises are located
(without regards to principles of conflicts of laws).
Landlord and Tenant each (i) irrevocably submits to personal
jurisdiction in the courts of the state in which the Premises are located and
the applicable United States District Court serving the county in which the
Premises are located, and appellate courts from any thereof, and (ii)
irrevocably waives any objection which it may have at any time to the laying on
venue of any suit, action or proceeding arising out of or relating to this
Lease brought in any such court, and irrevocably waives any claim that any such
suit, action or proceeding brought in any such court has been brought in an
inconvenient forum.
Landlord and Tenant each hereby agree that to the extent permitted by
local court rules, any summons, complaint and other process and notice in
connection with the commencement of or any other proceeding in any such suit,
action or proceeding may be served on it by using the notification procedure
set forth in this Lease.
LANDLORD AND TENANT EACH HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, THE RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR
COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THIS LEASE OR ANY ACTS OR OMISSIONS OF LANDLORD, ITS OFFICERS,
EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION THEREWITH.
Article 33
Joint Preparation
This Lease is to be deemed to have been prepared jointly by the
parties hereto, and any uncertainty or ambiguity existing herein, if any, shall
not be interpreted against any party, but shall be interpreted according to the
application of the rules of interpretation for arm's length agreements.
Article 34
Time Is of the Essence
Time is of the essence with respect to all matters provided in this
Lease.
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Article 35
Term Renewal
Tenant is granted the right to extend the term of this Lease for two
(2) period(s) of five (5) years each (the "Option Period(s)") on the terms and
conditions set forth herein; provided, however, that each said right to extend
for each such Option Period (the "Option(s)") may be exercised only in the
event Tenant is not in default at the time each said Option right is exercised
and provided, further, that the Option for the immediately preceding Option
Period, if any, has been exercised. The phrase "Lease Term" as used in this
Lease shall mean the term of this Lease as extended by Tenant pursuant to this
Article.
To exercise each Option, Tenant shall notify Landlord in writing no
later than one (1) year prior to the expiration of the initial Lease Term or
the Option Period then expiring, if any.
In the event Tenant properly exercises its Option as provided herein:
(1) all of the terms and conditions of this Lease shall apply during the Option
Period(s) (except the Option then exercised), including, but not limited to,
Tenant's obligation to pay all costs, charges and expenses provided for in the
Lease; (2) the Option exercised by Tenant in order to extend the Term of the
Lease shall terminate and be of no further force and effect and may not be
exercised again by Tenant; (3) no concession previously granted Tenant by
Landlord in the initial term shall be due or payable to Tenant during or with
respect to such Option Period; and (4) the monthly base rent payable under
Article 2 during the particular Option Period shall be determined as set forth
below. At Landlord's request, prior to the commencement of the particular
Option Period, Tenant shall execute, acknowledge, and deliver to Landlord an
amendment to lease evidencing Tenant's exercise of its Option and setting forth
the commencement and expiration dates of the Option Period and term of the
Lease and the monthly base rent payable during the Option Period.
The Annual Rent payable monthly under Article 2 during each Option
Period shall be such amount as may be agreed upon by the parties and which is
not less than 110%, nor more than 135%, of the Annual Rent for the twelve (12)
months immediately preceding the commencement of the applicable Option Period
(the "Option Period Rent").
If the parties are unable, within sixty (60) days of notice by Tenant
electing to extend the term of the Lease, to agree on the amount of the Option
Period Rent then each party shall within ten (10) days thereafter designate and
select an M.A.I. certified appraiser and submit to them what such party
believes the Option Period Rent should be. The two appraisers shall then
together within thirty (30) days determine and agree upon the Option Period
Rent by selecting either the Option Period Rent
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proposed by Landlord or that proposed by Tenant, with no other variation.
If the two appraisers are unable within said thirty (30) days to agree
on either Landlord's or Tenant's proposed Option Period Rent, then they shall
together designate a third M.A.I. appraiser, who alone shall select either
Landlord's or Tenant's proposed Option Period Rent as the Annual Rent, which
determination shall be binding and enforceable upon all parties.
Each party shall pay the cost of the appraisers selected by such party
and the costs of the third appraiser (if retained) shall be paid equally by
each party.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW
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TENANT:
XXXXXXX FOODS, INC., a Delaware corporation
(Seal) By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Attest: Xxxxx X. Xxxxxxxxx, President
-------------------------------------
Print Name Here
-------------------------------
(Ass't) Secretary
LANDLORD:
PAPETTI HOLDING COMPANY and XXXX XXXXXXXXX,
representing Xxxx Xxxxxxxxx, Xxxxxxxx Xxxxxx
and Xxxxx Xxxxxxxx
Witness: By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxx, on behalf of said parties
-------------------------------
-------------------------------
[SIGNATURE PAGE TO LEASE AGREEMENT]
STATE OF )
-------------- )
OF )
----------- --------
On this day of , 1997, before me personally
appeared , to me personally known, who, being
by me duly sworn, did say that he is the of XXXXXXX FOODS,
INC., a Delaware corporation, and that said instrument was signed on behalf of
said corporation by authority of its Board of Directors; and said officer
acknowledged said instrument to be the free act and deed of said corporation.
36
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the ____________ and State aforesaid, the day and year first
above written.
_____________________
Notary Public
(SEAL)
My Commission Expires:
STATE OF _________________ )
)
___________ OF ___________ )
On this ______ day of _____________, 1997, before me personally
appeared XXXXXX X. XXXXXXX, to me personally known, who, being by me duly sworn,
did say that he is a partner of ASA COMPANY, a New Jersey general partnership,
and that said instrument was signed by him as partner on behalf of said general
partnership; and said XXXXXX X. XXXXXXX acknowledged said instrument to be the
free act and deed of said general partnership.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the ____________ and State aforesaid, the day and year first
above written.
___________________________________
Notary Public
(SEAL)
My Commission Expires:
37
EXHIBIT A
DESCRIPTION OF PREMISES
Spain Road, Klingerstown, Pennsylvania (Building: 7,700 sq. ft.; single and 5
floors areas; Land: 00 xxxxx); Xxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx (Xxxx:
2.02 acres); Xxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx; (Xxxxxxxx: Xxxxxxxxx -
Xxxx: 1.1 acres) RD#1, Xxxxxxx Church Road, (Spring Xxxx), Hegins, Pennsylvania
(Building: 18,000 sq. ft.; 1 floor; also contains a residence (400 sq. ft.) -
Land: 209 acres); PA Xxxxx 00, Xxxxxx Xxxx, Xxxxxxxxxxxx (Building: 5,000 sq.
ft.; 1 floor - Land: 2.2377 acres); PA Xxxxx 00, Xxxxxx Xxxx, Xxxxxxxxxxxx
(Building: Residence - Land: 14.7852 acres)
(LEGAL TO FOLLOW)
