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EXHIBIT 10.2
LEASE AGREEMENT
This Lease Agreement, dated as of this 9th day of August, 1996, is by and
among Xxxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxx, not individually but as trustees
of Gato Realty Trust, u/d/t/ dated November 30, 1988 recorded with the Essex
North District Registry of Deeds, as nominee of Gato Realty Corp., a
Massachusetts corporation with a principal address at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxxxxx (hereinafter called "LESSOR") and UniMark Foods, Inc., a
Texas corporation (hereinafter called "LESSEE").
Recitals:
1. Lessor owns that certain parcel of land known as 00 Xxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx (the "LOT") and more
particularly bounded and described on Exhibit A annexed hereto
and by reference made a part hereof, together with the
building (the "BUILDING"), all other improvements presently
situated or hereafter constructed thereon, and together with
such rights of ingress and egress and other rights appurtances
thereto as are set forth on said Exhibit A, which Lot,
Building, improvements and rights are hereinafter collectively
referred to as the "PREMISES."
2. Fruit Salad, Inc., a Massachusetts corporation (hereinafter
called "FSI") was the owner of a leasehold estate affecting
the Premises under a certain lease agreement dated as of the
30th day of November, 1998, executed by FSI, as Lessee, and
Lessor, as landlord. Said lease and all renewals, extensions
and modifications thereof are hereinafter collectively called
the "EXISTING LEASE".
3. FSI and Lessor has terminated all of their rights, title and
interest in the Existing Lease on the terms and subject to the
conditions set forth herein.
Agreements:
1. No Assumption of Liabilities. Landlord expressly acknowledges and
agrees that Lessee assumes no obligations or liabilities, known or unknown, of
FSI under the Existing Lease or from any other source or nature whatsoever.
2. Premises. Lessor does hereby lease to Lessee, and Lessee does hereby
Lease from Lessor the Premises.
3. Term. The initial term of this Lease (the "INITIAL TERM") shall be
for six (6) years, commencing on August 9, 1996 (the "COMMENCEMENT DATE") and
ending on
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August 8, 2002, unless extended or earlier terminated as provided below (the
"LEASE TERM").
4. Rent. Lessee agrees to pay to Lessor rent ("NET RENT") payable, in
advance, in monthly installments on the first day of each calendar month during
the Lease term provided that notwithstanding that the Commencement Date does not
fall on the first day of a calendar month, Lesse shall pay the full amount of
the Net Rent for such month.). All such payments shall be made at Lessor's
mailing address set forth above or at such other place as Lessor shall from time
to time designate in writing. Except as otherwise provided for herein, all Net
Rent and other amounts due under this Lease shall be made without demand, offset
or deduction. Net Rent shall be $18,000 per month.
5. Net Lease. This is intended to be a so-called "Net Lease," and the
Lessee agrees to pay in addition to the rent specified herein, all real estate
taxes, assessments, betterments, water and sewer charges and all other and
charges in the nature thereof accruing against the demised Premises, the cost of
all insurance, and to pay and perform all obligations specified herein, for any
failure of which payments or performance continuing beyond the periods of grace
for which provision is herein made, the Lessor shall, without limiting other
remedies which may be available to Lessor, have the rights herein provided
against the Lessee on account of a failure to pay installments on account of
rent.
6. Option to Extend. Lessee shall have the option, to be exercised as
hereinafter set forth, to extend the Lease Term for two successive periods of
two (2) years each, following the original Lease Term (each of such periods is
hereinafter referred to as the "extended term"), upon the condition that, on the
last date on which Lessee is entitled to exercise this option and on the last
day of the then current term (original or extended), this Lease is in full force
and effect and Lessee is not in material default hereunder. Lessee shall
exercise its option by giving written notice of its election to extend the Lease
Term to Lessor not less than six (6) months prior to the expiration of the then
current Lease Term (original or extended). Upon such exercise, the Lease Term
shall be automatically extended for the two year period of such extended term,
upon the same terms and conditions set forth in this Lease.
7. Option to Purchase. Lessee shall have the option, to be exercised as
hereinafter set forth, to purchase the Premises for its fair market value (as
determined below) at the Time of Exercise (as defined below), less any
Capitalized Lessee Advances (as defined below) (the "PURCHASE PRICE"). Lessee
may exercise its option to purchase the Premises at any time during the 9th year
of this Lease (the "TIME OF EXERCISE") by giving written notice of its election
to purchase the Premises at any time during the 10th year of this Lease. This
written notice of its election shall set forth the total amount of all
Capitalized Lessee Advances and with such notice shall be included true copies
of all
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contracts and paid invoices evidencing such Capitalized Lessee Advances.
"CAPITALIZED LESSEE ADVANCES" means an amount equal to the sum of (a) all cost
and expenses incurred by Lessee as a result of Lessor's failure to maintain and
replace the Premises' roof, maintenance of the Premises' foundation and
structural members of the exterior walls, and (b) any costs, expenses, loss,
damage or liability incurred by Lessee with respect to any Environmental Law
(as hereinafter defined) because of the release or existence of any Hazardous
Substance on the Premises prior to the date hereof, which amount is be to
increased at an annual compounded at rate of 7 percent from the date that such
cost, expenses loss, damage or liability incurred by Lessee was incurred by
Lessee until the Time of Exercise. As such cost and expenses are incurred and
paid by Lesse, Lessee shall provide Lessor with copies of all paid invoices
relating thereto.
Within 15 days after receipt of such notice from Lessee, Lessor shall
deliver to Lessee a statement containing a proposed Purchase Price for the
Premises, based upon the sum of the then fair market value of the Premises and
the amount Capitalized Lessee Advances.
Within 15 days after receipt of such statement from Lessor, Lessee
shall give written notice to Lessor that Lessee (i) accepts the purchase price
proposed by Lessor or (ii) rejects the purchase price proposed by Lessor and
desires to seek determination of the fair market value of the Premises by
appraisal and the amount of the Capitalized Lessee Advances.
Within fifteen (15) days of receipt of such request for appraisal from
Lessee, Lessor shall appoint and give notice to Lessee of a duly qualified,
disinterested appraiser or appraisal firm recognized competence in the greater
Lawrence area (the fees of such appraiser to be paid by Lessor) and Lessee shall
also appoint and give notice to Lessor of a duly qualified, disinterested
appraiser or appraisal firm of recognized competence in the greater Lawrence
area (the fees of such appraiser to be paid by Lessee). If the two appraisers
are unable to agree on a fair market value and amount of Capitalized Lessee
Advances within thirty (30) days of their appointment, the two appraisers so
appointed by Lessor and Lessee shall, within ten days, choose a third such
appraiser of comparable qualifications. The fees of such third appraiser shall
be divided equally between the parties.
The three appraisers so selected or a majority of them shall determine
the fair market value of the Premises based upon property values comparable to
the Premises in the greater Lawrence area on or about the Time of Exercise and
the amount of Capitalized Lessee Advances. The appraisers shall promptly notify
the parties of the fair market value
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so determined, and in any event no later than the date that is thirty
(30) days after the appointment of the third appraiser. Such determined value
shall be binding upon Lessor and Lessee.
On the closing date, Lessor shall deliver such deeds, documents and
agreements that will vest good and marketable fee simple title to all the
Premises free and clear of all encumbrances, liens, charges or other
restrictions of any kind or character, excepting easements granted by Lessor's
predecessor in title to Lawrence Gas Company and to New England Telephone and
Telegraph Company. The closing date, time and place shall be established by
written notice from Lessee to Lessor delivered not less than 90 days prior
thereto.
No agreement between the Lessor and the Lessee shall be deemed or
otherwise construed as modifying or otherwise limiting the rights and remedies
of Xxxxxxxx Savings Bank, a mortgagee respecting the Premises, and the Lessor
and Lessee acknowledge and agree that there is no obligation on the part of
Xxxxxxxx Savings Bank, either express or implied, to release or otherwise modify
its mortgage respecting the Premises absent payment in full of all liabilities
secured thereby or unless otherwise agree in writing by Xxxxxxxx Savings Bank.
8. Use of Premises. Lessor acknowledges and agrees that, during the
Lease Term, Lessee may use the Premises for the processing, making, packaging
and distribution of fruit, vegetables and other consumer products as well as any
and all other uses permitted under the then applicable zoning regulations of the
City of Xxxxxxxx. Lessor acknowledges and agrees that, during the Lease Term,
Lessee shall assume and maintain exclusive control of, and enjoy exclusive
access to, the Premises and that Lessor and its representatives shall have no
rights of access to the Premises without the prior written approval of Lessee,
provided that upon written request of Lessor, Lessee shall permit, from time to
time, an independent inspector for Lessor, but acceptable to Lesse or which may
designated by Lessee, to inspect the condition of the Premises.
9. Maintenance and Repair. Lessee shall, at its own expense at all
times keep each and every part (including, without limitation, each and every
structural part of any structure thereon) of the Premises reasonably neat, clean
and in a safe and sanitary condition, and shall maintain and keep each and every
part (including, without limitation, each and every structural part of any
structure thereon) of the Premises in a good and safe state of repair and in
material compliance with all governmental orders, regulations and laws. During
the term hereof, there shall be no obligation on the part of Lessor to do or
cause to be done any maintenance or repairs to the Premises or to make any
expenditures for maintenance or repair of the Premises, except for maintenance
and replacement of the Premises' roof, maintenance of the Premises' foundation
and structural members of the
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exterior walls. In the event that Lessor fails to maintain and replace the
Premises' roof, maintain of the Premises' foundation and structural members of
the exterior walls, Lessee may perform such maintenance and repairs. All cost
incurred in connection with such maintenance and repairs shall be treated as
Capitalized Lease Advances. Consistent with the foregoing, Lessee shall, during
the term hereof, keep the Premises in the condition in which they now are or may
hereafter (in conformity with the provisions hereof) be put and shall, at the
expiration or termination of such term, peacefully yield up and deliver to
Lessor the Premises in such condition.
10. Construction and Alteration. Lessee shall have the right to
construct and install on the Premises such improvements and alterations as
Lessee may elect. but in compliance with all applicable laws, rules and
regulations.
11. Insurance Lessee shall maintain (i) commercial general liability
insurance, including personal injury and property damage in the amount as Lessee
shall determine to be appropriate and (ii) fire and extended coverage insurance
in the amount as Lessee shall determine to be appropriate, subject to the
approval of such coverages by Xxxxxxxx Savings Bank. Lessee, Lessor and Xxxxxxxx
Savings Bank shall be named as additional insureds/loss payees, as their
interest may appear, in such policies and, with respect to the fire and extended
coverage policy, Xxxxxxxx Savings Bank shall also be named as first mortgagee.
Lessor agrees that any loss payable under such fire and extended coverage policy
shall be payable jointly to Lesse and Xxxxxxxx Savings Bank. Lessor and Lessee
agree that in the event of damage or destruction to the Premises as provided in
Section 12 below, insurance proceeds shall be used for restoration of the
Premises unless the parties otherwise agree.
12. Damage or Destruction of Premises. In the event the Premises, the
Building or any other improvement constructed thereon shall, due to any cause
whatsoever, be damaged or destroyed during the term hereof, Lessee shall
promptly cause the Premises or improvements to be promptly repaired and restored
to a condition substantially equivalent to that existing immediately preceding
such damage or destruction. Such repair or restoration shall be solely at
Lessee's expense; but limited to insurance proceeds actually received; except
that, promptly after repairs and restoration have been completed, and other
applicable requirements of Section 11 have been satisfied, and subject to the
rights of Xxxxxxxx Savings Bank, Lessor shall deliver all insurance proceeds
held by it to Lessee as required by said Section 11 in reimbursement of the
costs of such repairs and restoration. If Lessee shall not, within a reasonable
period of time after such damage or destruction complete all repairs and
restoration then Lessor may, at its election (but without limiting any other
rights and remedies which it may have), cause such repairs and restoration to be
made and pay for all costs and expenses of the same out of insurance proceeds
paid Lessor in which event Lessor
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shall, after completion of such repair or restoration, deliver to Xxxxxxxx
Savings Bank any excess of the amount necessary to satisfy the mortgage
respecting the Premises.
13. Utilities, Taxes and Assessments.
A. Utilities. Lessee shall pay in addition to the Net Rent for
all water, meter charges, fuel, gas, oil, heat, light, power, sewer
service charges, and any other utilities which may be furnished to or
used by Lessee in or about the Premises during the term hereof.
B. Taxes and Assessments. Lessee covenants to pay and
discharge punctually as and when the same shall become due and payable
without penalty, all real estate taxes, water charges and governmental
impositions and charges in the nature of real estate taxes of every
kind and description, and each and every installment thereof, which,
during the Lease Term, are charged, levied, etc. for or upon, or become
due and payable with respect to or become liens upon, the Premises and
each and every part thereof, or any tax levied, assessed or imposed
instead of and in lieu of the foregoing, together with interest and
penalties thereon, pursuant to present or future law, rules,
regulation, etc. of all governmental authorities. Lessee shall make
payment of such real estate taxes to Lessor within thirty (30) days
after the presentation by the Lessor to the Lessee of a copy of the
relevant xxxx rendered to the Lessor.
Lessee shall have the right, at its own cost and expense after
giving prior written notice of its intention so to do to Lessor and
after depositing with Lessor security which is adequate in Lessor's
judgment to pay amounts which may finally be adjudged to be due from
Lessor on account of real estate tax relief proceedings, to initiate
and prosecute any proceedings permitted by law for the purpose of
obtaining abatement or reduction of any real estate taxes assessed
against the Premises so long as Lessee's occupancy or Lessor's title to
the Premises will not be disturbed or threatened thereby. With respect
to any fiscal period of the taxing authority entirely or partially
included in the term of this Lease, if required by law, Lessee may take
such action in the name of the Lessor, who shall cooperate with Lessee
to such extent Lessee may reasonably require, to the end that such
proceedings may be brought to a successful conclusion; provided,
however, that Lessee, upon making any request for assistance or
cooperation by Lessor, shall indemnify and save Lessor harmless from
all loss, costs, expenses or charges with respect to such proceedings.
Any reduction or abatement effected by such proceedings shall accrue to
the benefit of Lessee and Lessor as their respective interests may
appear according to their respective contributions to the taxes
involved in any such proceedings and in the event any such taxes are
abated or reduced, the expenses incurred in connection therewith (but
not
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the amount of any costs, interest charges or penalties relating to
untimely payment of any real estate taxes which shall, notwithstanding
such respective contributions be borne entirely by Lessee) shall be
borne between Lessor and Lessee in proportion to the benefit obtained
respectively by reason of such reduction or abatement.
In any event, Lessee expressly agrees that it will, forthwith
after a final determination of any proceedings initiated for the
purpose of securing an abatement or reduction of real estate taxes, as
aforesaid, pay the amount of any charges which may have been the
subject of such proceedings, together with any interest and penalties,
and costs and charges which may be payable in connection therewith.
Lessee shall pay all taxes which may be lawfully charged,
assessed or imposed upon the personal property (fixtures and equipment)
located upon the Premises, and Lessee shall pay all license fees which
may be lawfully imposed upon the business of Lessee conducted upon the
Premises.
Except as aforesaid, if Lessee fails to pay any taxes,
assessments or other governmental charges levied against the Premises
as the become due, Lessor shall have the right, in addition to any
other remedies available to Lessor, to pay such taxes, assessments or
other governmental charges levied against the Premises as they become
due, and the amount so paid or expended shall be immediately due from
Lessee to Lessor upon demand, as additional rent.
Lessee shall provide Xxxxxxxx Savings Bank with copies of all paid tax
bills or other written evidence of payment as and when payments are made to the
City of Xxxxxxxx as reasonably requested by Xxxxxxxx Savings Bank.
14. Representations and Indemnity. Lessor represents, warrants and
agrees as follows:
(A) This Lease Agreement is a valid and legally binding obligation of
Lessor, enforceable in accordance with its terms, except as limited by
bankruptcy, insolvency and similar laws affecting creditors generally.
The execution, delivery and performance of this Lease Agreement has
been duly authorized by and will not violate any applicable federal or
state law, any order of any court or government agency. The execution,
delivery and performance of this Agreement will not result in any
breach of or default under the terms of any agreement by which Lessor
or any of its respective assets may be bound. No consent, approval or
authorization of, or registration or filing with any governmental
authority or other regulatory agency, is required for the validity of
the execution and delivery by Lessor of this Lease Agreement.
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B) Lessor has good and marketable title to the Premises, free and clear
of all encumbrances, liens, charges or other restrictions of any kind
or character, except for that certain mortgage in favor of Xxxxxxxx
Savings Bank and the easements referenced in Section 7 hereof. To the
best of Lessor's knowledge, (I) none of such of buildings, structures
and appurtenances (or any equipment therein), nor the operation or
maintenance thereof, violates any restrictive covenant or any provision
of any federal, state or municipal law, by-law, ordinance, rule or
regulation or encroaches on any property owned by others; (ii) no
condemnation proceeding is pending or threatened that would preclude or
impair the use of any such property by Lesse for the purposes for which
it is currently used; and (iii) Lessor is, and always was, in
compliance in all material respects with all applicable laws,
regulations, orders, judgments and decrees.
(C) Lessor shall not be liable to Lessee or to any person, firm or
corporation whatsoever for any injury to, or death of, any person, or
for any loss of, or damage to property (including property of Lessee)
occurring in or about the Premises, except as arising from any
negligent or wilful act or omission by Lessor. Lessee agrees to defend
(with counsel of Lessor's selection), indemnify and save Lessor
harmless from all costs, loss, damage, liability or expense arising out
of or resulting from any actual or alleged injury to or death of any
person, or from any actual or alleged loss of or damage to property
caused by, or resulting from, any occurrence of or about the Premises,
or caused by or resulting from any act or omission or admission,
whether negligent or otherwise, of Lessee, any officer, agent,
employee, contractor, guest, invitee, customer or visitor of Lessee in
or about the Premises. This indemnity and hold harmless agreement
expressly includes all legal fees and expenses incurred in, or in
connection with, the defense of any actual or threatened legal action
with respect to any claim as to which Lessee has hereby indemnified
Lessor.
(D) Lessor agrees to indemnify and hold the Lessee and its affiliates,
officers, directors and agents harmless from damages, losses or
expenses suffered or paid, directly or indirectly, as a result of any
and all claims, demands, suits, causes of action, proceedings,
judgments and liabilities, including reasonable counsel fees incurred
in litigation or otherwise, assessed, incurred or sustained by or
against any of them with respect to or arising out (a) the breach of
any representation or warranty set forth herein, (b) any negligent act,
omission or wilful misconduct by Lessor, (c) the violation of any Law
by Lessor pertaining to the Premises or (d) resulting from the release
or existence of any Hazardous Substance on the Premises prior to the
date hereof. As used herein, Law shall mean all federal, state, and
local laws, rules, and regulations; all court orders, governmental
directives, and governmental orders; and all restrictive covenants
affecting the Premises, and "LAW" shall mean any of the foregoing.
Lessor acknowledges and agrees that in the event that Lessee is
required
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to take any action or incurs any loss, damage or liability with respect
to any Law, including, but not limited to, any Environmental Law
because of the release or existence of any Hazardous Substance on the
Premises prior to the date hereof, Lessee shall be entitled to
capitalize such amounts as Capitalized Lesse Advances as set forth in
Section 7. The term "HAZARDOUS SUBSTANCES", as used in this Lease,
shall mean pollutants, contaminants, toxic or hazardous wastes, or any
other substances, the removal of which is required or the use of which
is restricted, prohibited or penalized by any "ENVIRONMENTAL LAW",
which term shall mean any Law relating to health, pollution, or
protection of the environment.
15. Liens. Except for those existing liens in favor of Xxxxxxxx Savings
Bank and the City of Xxxxxxxx, Lessor shall at all times during the term hereof
keep the Premises free from any liens, claims or encumbrances.
16. Eminent Domain. If a portion of the Premises is taken by any
private or governmental authority under the power of eminent domain and the
remaining portion thereof in Lessee's opinion, reasonably exercised in view of
the then relevant facts, is Lessee able for the use permitted by this Lease or
can be rendered so by remodeling or reconstructing so much of the Premises as
remains, the Lease shall continue in full force and effect as to the remainder
of said Premises and all of the terms herein provided shall continue in effect.
The award shall be paid to the Lessor and Xxxxxxxx Savings Bank and any
mortgagee designated by the Lessor until such remodeling or reconstruction has
been completed and, the net amount shall be then paid over to Lessee. If all or
any part of the Premises is so taken and this Lease is not continued as above
provided, the award shall be paid to the Lessor or any mortgagee designated by
the Lessor and the Lease shall terminate as of the date of the taking, with no
recourse of either Lessor or Lessee against the other.
17. Quiet Enjoyment. Provided Lessee has materially performed its
obligations under this Lease, Lessee shall peaceably and quietly hold and enjoy
the Premises for the Term, without hindrance from Lessor or any party claiming
by, through, or under Lessor, but not otherwise.
18. MISCELLANEOUS.
(A) Words of any gender used in this Lease shall include any other
gender, and words in the singular shall include the plural,
unless the context otherwise requires. The captions inserted in
this Lease are for convenience only and in no way affect the
interpretation of this Lease. The following terms shall have the
following meanings: "AFFILIATE" shall mean any person or entity
which, directly or indirectly, controls, is controlled by, or is
under common control with the party in question.
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(B) Without the prior written approval of Lessee, Lessor may not
transfer and assign, in whole or in part, its rights and
obligations in the Premises that are the subject of this Lease.
The Lessee acknowledges and agrees that this Lease is being
assigned to Xxxxxxxx Savings Bank as additional collateral
securing the Lessor's obligations to Xxxxxxxx Savings Bank
(C) This Lease constitutes the entire agreement of the Lessor and
Lessee with respect to the subject matter of this Lease, and
contains all of the covenants and agreements of Lessor and Lessee
with respect thereto. This Lease may not be altered, changed or
amended except by an instrument in writing signed by both parties
hereto. So long as Xxxxxxxx Savings bank holds a mortgage on the
Premises, the Lessor and the Lessee covenant and agree that no
amendments or modifications to this Lease shall be made without
providing a copy of the proposed changes to Xxxxxxxx Savings Bank
at least thirty (30) days prior to the intended effective date of
any such change and without first obtaining the express written
consent and authorization of Xxxxxxxx Savings Bank, which consent
shall not be unreasonably withheld, conditioned, or delayed. So
long as Xxxxxxxx Savings bank holds a mortgage on the Premises,
notwithstanding anything herein to the contrary, the Lessor and
the Lessee acknowledge and agree that they shall make no
amendment or modification to this Lease at any time which would
reduce the Eighteen Thousand ($18,000) Dollar amount of the
monthly Net Rent.
(D) If any provision of this Lease is illegal, invalid or
unenforceable, then the remainder of this Lease shall not be
affected thereby, and in lieu of each such provision, there shall
be added, as a part of this Lease, a provision as similar in
terms to such illegal, invalid or unenforceable clause or
provision as may be possible and be legal, valid and enforceable.
(E) All references in this Lease to "THE DATE HEREOF" or similar
references shall be deemed to refer to the last date, in point of
time, on which all parties hereto have executed this Lease.
(F) On the date hereof, Lessee will pay to Lessor $150,000 as an
inducement to enter into this Lease.
(G) So long as Xxxxxxxx Savings bank holds a mortgage on the
Premises, the Lessee may not assign the Lessee's rights as lessee
to any third party without the prior written consent and
authorization of Xxxxxxxx Savings Bank, which consent shall not
be unreasonably withheld, conditioned, or delayed.
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19. NOTICES. Each provision of this instrument or of any applicable Laws
and other requirements with reference to the sending, mailing or delivering of
notice or the making of any payment hereunder shall be deemed to be complied
with when and if the following steps are taken:
(A) All rent shall be payable to Xxxxxxxx Savings Bank at the address
for Xxxxxxxx Savings Bank set forth below or at such other
address as Xxxxxxxx Savings Bank may specify from time to time by
written notice delivered in accordance herewith. Lessee's
obligation to pay rent shall not be deemed satisfied until such
rent has been actually received by Xxxxxxxx Savings Bank.
(B) All payments required to be made by Lessor to Lessee hereunder
shall be payable to Lessee at the address set forth below, or at
such other address within the continental United States as Lessee
may specify from time to time by written notice delivered in
accordance herewith. Notwithstanding anything herein to the
contrary, the Lessee acknowledges and agrees that at all times
the Lessee shall be obligated to make the Eighteen Thousand
($18,000) Dollar monthly Net Rent payment, without reduction,
setoff, or abatement of any kind, during the term of this Lease.
(D) Any written notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered upon the
earlier to occur of (1) tender of delivery (in the case of a
hand-delivered notice), (2) deposit in the United States Mail,
postage prepaid, Certified Mail, or (3) receipt by facsimile
transmission, in each case, addressed to the parties hereto at
the respective addresses set out below, or at such other address
as they have theretofore specified by written notice delivered in
accordance herewith. If Lessor has attempted to deliver notice to
Lessee at Lessee's address reflected on Lessor's books but such
notice was returned or acceptance thereof was refused, then
Lessor may post such notice in or on the Premises, which notice
shall be deemed delivered to Lessee upon the posting thereof.
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20. ARBITRATION. Either Lessor or Lessee may require that any dispute under
this Lease be submitted to arbitration pursuant to this Section. To the extent
the provisions of this Section vary from or are inconsistent with the Commercial
Arbitration Rules of the American Arbitration Association or any other
arbitration tribunal, the provisions of this Section shall govern. All
arbitrations shall occur at a location in Dallas, Texas chosen by the
arbitrators and shall be conducted pursuant to the Commercial Arbitration Rules
of the American Arbitration Association (or any successor organization, or if no
such successor organization exists, then from an organization composed of
persons of similar professional qualifications). The party desiring arbitration
shall give notice to that effect to the other party and simultaneously therewith
also shall give notice to the director of the Dallas, Texas regional office of
the American Arbitration Association (or any successor organization, or if no
such successor organization exists, then to an organization composed of persons
of similar professional qualifications), requesting such organization to select,
as soon as possible but in any event within the next 30 days, three arbitrators
with, if reasonably possible, recognized expertise in the subject matter of the
arbitration. At the request of either party, the arbitrators shall authorize the
service of subpoenas for the production of documents or attendance of witnesses.
Within 30 days after their appointment, the arbitrators so chosen shall hold a
hearing at which each party may submit evidence, be heard and cross-examine
witnesses, with each party having at least ten days advance notice of the
hearing. The hearing shall be conducted such that each of Lessor and Lessee
shall have reasonably adequate time to present oral evidence or argument, but
either party may present whatever written evidence it deems appropriate prior to
the hearing (with copies of any such written evidence being sent to the other
party). In the event of the failure, refusal or inability of any arbitrator to
act, a new arbitrator shall be appointed in his stead, which appointment shall
be made in the same manner as hereinbefore provided. The decision of the
arbitrators so chosen shall be given within a period of 30 days after the
conclusion of such hearing, and shall be accompanied by conclusions of law and
findings of fact. The decision in which any two arbitrators so appointed and
acting hereunder concur shall in all cases be binding and conclusive upon the
parties and shall be the basis for a judgment entered in any court of competent
jurisdiction. The fees and expenses of arbitration under this Section shall be
apportioned to Lessor and Lessee in such a manner as decided by the arbitrators.
Lessor and Lessee may at any time by mutual written agreement discontinue
arbitration proceedings and themselves agree upon any such matter submitted to
arbitration. So long as there is no event of default by the Lessee hereunder,
and the Lessee makes all rental payments in an amount at least in the amount of
the Eighteen Thousand ($18,000) Dollar Net Rent as and when due hereunder, then
Xxxxxxxx Savings Bank shall recognize the Lessee as lessee during the term of
this Lease, but not otherwise. In no event shall Xxxxxxxx Savings Bank be bound
to any option to purchase the Premises or any other right of first refusal as
set forth in this lease or as otherwise agreed between the Lessor and the
Lessee, unless the proceeds from same are sufficient to satisfy in full all
liabilities of the Lessor to Xxxxxxxx Savings Bank that are secured by that
certain Commercial Mortgage dated November 30, 1988, as amended, given
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to Xxxxxxxx Savings Bank and respecting the Premises, and such proceeds are
actually paid to Xxxxxxxx Savings Bank. In no event shall Xxxxxxxx Savings Bank
be bound to the Arbitration provisions set forth herein.
21. The Lessor and the Lessee each acknowledges and agrees that the
occurrence of any event of default under this Lease, whether by the Lessor or
the Lessee, shall constitute an Event of Default under the Assignment of Leases
and Rents dated August ___, 1996 between the Lessor and Xxxxxxxx Saving Bank and
further shall constitute an event of default under that certain Commercial
Mortgage dated November 30, 1988, as amended, given to Xxxxxxxx Savings Bank and
respecting the Premises, upon which event of default Xxxxxxxx Savings Bank may
exercise all and singular its rights and remedies, including, without
limitation, foreclosure of said Commercial Mortgage. Nothing contained in this
Lease Agreement, including, without limitation, the execution of this Lease
Agreement by Xxxxxxxx Savings Bank, shall be deemed or otherwise construed as an
amendment or modification of the terms and conditions of said Commercial
Mortgage, the Assignment of Leases and Rents, and/or any other loan documents
evidencing the Liabilities of the Lessor to Xxxxxxxx Savings Bank, all and
singular of which remain in full force and effect.
22. The Lessee shall:
(A) not store (except in compliance with all laws, ordinances,
and regulations pertaining thereto), or dispose of any hazardous
material or oil on the Premises, or on any other site or vessel owned,
occupied, or operated either by the Lessee, or by any person for whose
conduct the Lessee is responsible;
(B) neither directly nor indirectly transport or arrange for the
transport of any Hazardous Material;
(C) take all such action, to assess, contain, and remove any such
hazardous material or oil on the Premises resulting from the Lessee's
breach hereunder;
(D) provided Xxxxxxxx Savings Bank with immediate written notice
upon (i) the Lessee's obtaining knowledge of any potential or known
release, or threat of release, of any hazardous material or oil on
(whether from the Premises or from another property offsite of the
Premises) or from the Premises, or any other site of vessel owned,
occupied, or operated by the Lessee or by any person for whose conduct
the Lessee is responsible or whose liability may result in a lien
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on the Premises; (ii) the Lessee's receipt of any notice to such
effect from any incurrence of any expense or less by such governmental
authority; and (iii) the Lessee's obtaining knowledge of any
incurrence of any expense or loss by such governmental authority in
connection with the assessment, containment, or removal of any
hazardous material or oil for which expense or loss the Lessee may be
liable or for which expense a lien may be imposed on the Premises; and
(E) comply with all laws, judgments, decrees, orders, rules, and
regulations pertaining to environmental matters relating to the use,
storage, containment, and removal of hazardous materials or oil,
including, without limitation, those arising under Massachusetts
General Laws Chapter 21E, as amended, and any other federal, state or
local statute, rule, regulation, ordinance, or decree.
Notwithstanding anything to the contrary in this agreement, Lessee shall have no
obligation or liability to either Lessor or Xxxxxxxx Savings Bank of any kind or
nature whatsoever because of a the release or existence of any Hazardous
Substance or oil on the Premises prior to the date hereof.
EXECUTED by Lessee on August 9, 1996.
LESSEE:
UNIMARK FOODS, INC.
By: _____________________________
Name: Xxxx Xxxxx
Title: President
EXECUTED by Lessor on August 9, 1996.
LESSOR:
By: ______________________________
Name:____________________________
Title: ____________________________
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