EXHIBIT 10(b)
AGREEMENT FOR SALE AND
PURCHASE OF REAL ESTATE
This Agreement is made and entered into this 10th day of October, 1996
by and between LINCOLN SNACKS COMPANY, a Delaware corporation, ("Seller")
and XXXXXX X. XXXXXXXX ("Buyer").
In consideration of the mutual covenants contained herein, the parties
agree as follows:
1. Property. Seller hereby agree to sell and convey to Buyer and
Buyer hereby agrees to purchase from Seller upon the terms and conditions
set forth in this Agreement, the following described real estate in
Lancaster County, Nebraska:
Xxxx 0 xxx 0, Xxxxx 0, Xxxxxxx Xxxxxxxxxx Xxxx South, Lincoln,
Lancaster County, Nebraska ("Property").
2. Purchase Price. Buyer agrees to pay Seller the total sum of
Three Hundred Seventy Five Thousand Dollars ($375,000), payable in full in
collected funds at Closing, as defined below.
3. Conditions Precedent for Buyer. Buyer's obligation to purchase
the Property and to pay the Purchase Price are subject to the following
conditions precedent having been satisfied at or prior to the Closing:
(a) Buyer's receipt of commitments for an owners and lenders
A.L.T.A. policy of title insurance issued by State Title Services,
Inc., Lincoln, Nebraska ("Title Company") as agent, pursuant to which
Title Company agrees to insure good and marketable fee simple title to
the Property, free and clear of all liens and encumbrances but subject
to easements and restrictions of record which will not materially
adversely effect Buyer's intended use of the Property to lease to
Seller, in Buyer's sole judgment, and subject to the general
exceptions to the title policy. The title policy shall be in the name
of Buyer for the full amount of the Purchase Price (or of the loan, as
appropriate) upon delivery of a special warranty deed to Buyer from
Seller (with the warranty limited to claims of persons holding by,
through, or under Seller). The cost of the owner's title insurance
premium shall be divided equally between the parties. The cost for
the lender's title insurance premium and any endorsements shall be
paid by Buyer.
(b) Buyer and Seller shall have entered into a Lease for the
Property substantially in the form attached hereto as Exhibit 1.
(c) Buyer shall have exercised its option to purchase, and
shall have closed on the purchase of, Xxx 0, Xxxxx 0, Xxxxxxx
Xxxxxxxxxx Xxxx South, Lincoln, Nebraska.
(d) Buyer shall have obtained a financing commitment for 80% of
the Purchase Price on commercially reasonable terms.
4. Taxes. Seller shall pay 1995 and all prior years taxes and all
special assessments levied against the Property to the date of Closing.
Taxes for 1996 shall be prorated to date of Closing.
5. Closing. Closing shall be held on October 10, 1996, at the
offices of Title Company, 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000, or at
such other time and place as the parties may mutually agree in writing
("Closing"). At closing, adjustments shall be made as necessary for unpaid
taxes, balances due upon any special assessments, title insurance premiums,
the closing agent's fee as described in this Agreement, filing fees (payable
by Buyer), documentary stamps (payable by Seller), and other appropriate
adjustments. The parties agree to close the transaction through Title
Company, and the parties shall each pay 1/2 of the closing agent's fee.
6. Possession and Risk of Loss. Possession of the Property shall
be delivered at Closing. Until Closing, Seller shall bear all risk of loss
to the Property.
7. Seller Warranties. In addition to the representations and
warranties contained elsewhere in this Agreement, Seller hereby represents
and warrants to Buyer, as of the date of this Agreement and as of the
Closing:
(a) The Seller has not granted any right of first refusal or
option to acquire fee title or any title interest to the Property or any
portion thereof or interest therein.
(b) Seller has the lawful right, power, authority and capacity
to consummate the transaction contemplated by this Agreement. The execution
and delivery of this Agreement and Closing does not violate any contract,
agreement, or any instrument to which Seller is a party, any judicial order
or judgement of any nature by which Seller is bound.
(c) The Property is not the subject of a listing agreement and
there are no brokerage or other real estate commissions due and owing as a
result of this Agreement.
The representations and warranties contained in this section shall
survive the Closing and remain in full force and effect.
8. Removal of Rail Trackage. Seller, at Seller's expense, shall
remove all rail trackage presently located at the far east side of the
Property. This shall be accomplished on or before October 30, 1996.
9. Assignment. Buyer may assign this Agreement to an entity in
which Buyer is a principal, partner, member, shareholder or otherwise the
holder of an ownership interest; provided that such assignment shall not
relieve Buyer from his liabilities and obligations hereunder.
10. Disclosure. Seller is hereby notified that the Buyer herein
holds a Nebraska Real Estate license.
11. Environmental Matters. Seller has no actual knowledge that the
Property is not in compliance with applicable environmental laws. Seller
hereby agrees to indemnify and hold Buyer harmless from and against all
claims, damages, liabilities, actions, causes of action and the like to
which Buyer may be subjected to as a result of any environmental condition
existing at the Property as of the Closing. Likewise, Buyer hereby agrees
to indemnify and hold Seller harmless from and against all claims, damages,
liabilities, actions, causes of action and the like to which Seller may be
subjected to as a result of any environmental condition which is created or
exacerbated at the Property after the Closing by any person other than
Seller. These indemnification and hold harmless agreements shall survive
the Closing.
12. Binding Effect. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective heirs, legal
representatives, successors and assigns.
13. Nebraska Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Nebraska.
14. Personal Inspection. This Agreement is based upon Buyer's
personal inspection of the Property, and Seller makes no representations or
warranties whatsoever with respect to the Property other than as set forth
in paragraph 7 above and in the Special Warranty Deed to be delivered at
Closing. Except for said representations and warranties, Buyer is taking
the Property "as is."
15. Default. In the event of a default or breach hereunder by
either party, the other party may pursue such legal and equitable remedies
as may be available to the non-breaching party, including but not limited to
actions for specific performance and/or money damages.
In witness whereof, the parties have executed this Agreement as of the
dates set forth below.
SELLER:
LINCOLN SNACKS COMPANY, a Delaware corporation
By: /s/ Xxxxxxx X. Xxxx, Xx.
Its Executive Vice President and
Chief Operating Officer
and By: /s/ Xxxxxxxx X. Crabs
Its Chief Financial Officer
BUYER:
XXXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
STATE OF NEBRASKA )
) ss
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this 10th day of
October, 1996 by Xxxxxxx X. Xxxx, Xx., the Executive Vice President and
Chief Operating Officer of LINCOLN SNACKS COMPANY, a Delaware corporation,
on behalf of the corporation.
/s/ Xxxxxxx X. Xxxxx
Notary Public
My Commission Expires: 8/11/98
STATE OF NEBRASKA )
) ss
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this 10th day of
October, 1996 by Xxxxxxxx X. Crabs, the Chief Financial Officer of LINCOLN
SNACKS COMPANY, a Delaware corporation, on behalf of the corporation.
/s/ Xxxxxxx X. Xxxxx
Notary Public
My Commission Expires: 8/11/98
STATE OF NEBRASKA )
) ss
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this 10th day
of October, 1996 by Xxxxxx X. Xxxxxxxx.
/s/ Xxxxxxx X. Xxxxx
Notary Public
My Commission Expires: 8/11/98
LEASE
THIS LEASE made and entered into this 10th day of October, 1996, by and
between XXXXXX X. XXXXXXXX, hereinafter called "Lessor", and LINCOLN SNACKS
COMPANY, a Delaware corporation, hereinafter called "Lessee".
TERMS
1. PREMISES LEASED: Subject to the terms and conditions herein
contained, the Lessor hereby leases to the Lessee and Lessee hereby leases
from Lessor the following described property:
50,000 square feet of space in the to-be-constructed commercial
building comprising an estimated 87,040 square feet ("Building"), plus
the surrounding area as all shown on the site plan attached hereto as
Exhibit A (said 50,000 square feet and said surrounding area are
hereinafter sometimes collectively referred to as, the "Premises") to
be located upon Xxxx 0 xxx 0, Xxxxx 0, Xxxxxxx Xxxxxxxxxx Xxxx South,
Lincoln, Lancaster County, Nebraska ("Property"). A map of Lincoln
Industrial Park South is attached hereto as Exhibit B.
2. CONSTRUCTION OF COMMERCIAL BUILDING: Lessor agrees to cause to be
constructed on the Property certain improvements including a commercial
building to be used as a warehousing and distribution facility
("Improvements"). The Improvements shall include: (i) an above ground
tunnel connecting the Building to the adjacent building to the north located
on Xxx 0, Xxxxx 0, Xxxxxxx Xxxxxxxxxx Xxxx, which is owned by Lessee
("Lessee's Adjacent Property"); (ii) 24' clear structure height; (iii) three
dock doors; and (iv) heating and air conditioning. The Improvements shall
be constructed pursuant to certain plans ("Plans"), copies of which are
attached hereto as Exhibit C, and general specifications ("Specs") attached
hereto as Exhibit D, which Plans and Specs have been agreed to by both
parties. No modifications shall be made to the Plans and Specs except by
written change order pursuant to paragraph 28 of this Lease. Lessor agrees to
complete the Building in full compliance with the Plans and Specs so that it
is ready for occupancy by Lessee on or before June 1, 1997.
3. TERM: The term of this lease shall be ten (10) years from the
later of June 1, 1997, or the first day of the month when the Building is
completed in full compliance with the Plans and Specs and ready for
occupancy by Lessee (the "Commencement Date"), unless sooner terminated as
hereinafter provided, and subject to extension per the renewal options
herein below. As used herein, the word "term" means the original ten (10)
year term and all extended term(s) per exercise of the renewal options.
Both the term and rent payments under this Lease shall start on the
Commencement Date. In the event Lessee shall take possession of the
Premises on a day other than the first day of the month, then rent shall be
immediately paid for such fractional month prorated on the basis of a thirty
(30) day month. The ten-year term of the Lease shall be computed from the
Commencement Date.
4. RENTAL:
4.1 Base Rental: For the term of this Lease, Lessee shall pay to
Lessor basic rent in the aggregate amount of $2,525,000, payable in
monthly installments as set forth below, in advance on the first day
of each month throughout the term of this Lease.
Building Portion Building Portion Monthly Rent
Lease Years Total Sq.Ft. Rent/Sq.Ft. for entire Premises
------------- ---------------- ---------------- -------------------
1 through 5 50,000 $4.80 $20,000.00
6 through 10 50,000 $5.30 $22,083.33
If the monthly rental as established herein is not received by Lessor
on or before the 15th day of each calendar month, Lessee agrees to pay
the Lessor a late charge of five percent (5%), or such amount as
applicable law may allow, on each monthly rental received after the
15th day of the month.
4.2 Adjustments to Rent: In the event the Building is not completed
in full compliance with the Plans and Specs or is not ready for
occupancy by June 1, 1997, then Lessor shall provide Lessee with a
rental credit of $20,000.00 for each full or partial month from and
including June, 1997, during which such situation exists.
Additionally, irrespective of the Commencement Date, Lessor agrees
that Lessee shall receive a further rental credit in the amount of 50%
of the payments Lessee makes to Xxxxxxxx Properties with respect to
its lease of property at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx,
from and including July, 1997, until the termination of such lease
with Xxxxxxxx Properties.
5. REPAIR AND MAINTENANCE:
5.1 Maintenance and Repairs by Lessor: Lessor, at its sole cost and
expense and subject to the provisions of Section 5.2, shall perform
during the term of this Lease all necessary replacements, maintenance,
and repairs with respect to all of the following portions of the
Premises:
(A) The structure and exterior of Lessor's building including,
without limitation, the roof and roof membrane, walls, floors,
foundations, supports, roof vents, drains and downspouts;
(B) The substructure, all periodic repaving and any patching
and pothole maintenance of the yard, parking, drive and other
hard-surfaced areas of the Premises, together with curbs and
walkways; and
(C) The mechanical and utility systems serving the Premises,
including without limitation, heating, ventilating, air
conditioning, lighting, electrical, plumbing, gas, water supply,
sanitary sewers and septic systems, storm sewers and storm water
drainage systems, and sprinkler systems (sometimes collectively
referred to herein as the "Mechanical and Utility Systems"),
windows, doors, and overhead doors. To the extent that the
costs of replacing, maintaining, and/or repairing the same shall
exceed One Thousand Dollars ($1,000) for any item or event or
the aggregate costs of replacing, repairing and/or maintaining
said items shall exceed Five Thousand Dollars ($5,000) for any
twelve (12) month period of the term of this Lease, the Lessee
shall be responsible for all such costs up to and including such
threshold amounts and shall undertake such repairs when such
costs are estimated to not exceed such threshold limits and
Lessor shall undertake such maintenance and repairs in all other
situations, and the parties shall xxxx and reimburse each other
on the basis of such thresholds and undertakings and actual
costs. If Lessor fails to perform its maintenance, replacement,
and/or repair obligations within fifteen (15) days after
Lessor's receipt from Lessee of notice of the need therefor,
then Lessee shall have the right upon three (3) business days
notice to Lessor to perform all or part of such maintenance and
repairs at the sole cost and expense of Lessor, and Lessor shall
reimburse Lessee for such reasonable cost and expenses within
thirty (30) days after Lessee's delivery to Lessor of an invoice
therefor.
5.2 Maintenance and Repairs by Lessee: Lessee, at its sole costs
and expense, during the term of this Lease shall keep the Premises in
a clean and orderly condition, shall mow the landscaped areas of the
Premises and remove snow, as necessary, from the parking, yard and
drive areas of the Premises, shall perform all maintenance and repair
to the Premises occasioned by Lessee's negligence or misconduct, and
shall perform those maintenance and repairs and bear those threshold
costs with respect to those items set forth in Section 5.1(C). If
Lessee fails to perform its maintenance and repair obligations within
fifteen (15) days after Lessor's delivery to Lessee of notice of the
need therefor, then Lessor shall have the right upon three (3)
business days notice to Lessee to perform all or part of such
maintenance and repairs at the sole cost and expense of Lessee, and
Lessee shall reimburse Lessor for such cost and expenses within thirty
(30) days after Lessor's delivery to Lessee of an invoice therefor.
6. ADDITIONAL RENT: Lessee hereby covenants and agrees to pay the
basic rent hereby reserved as and when due, and also all sums of money,
charges and other amounts required to be paid by Lessee, either to Lessor or
to another person, under this lease which charges or amounts shall be
considered "rent" in addition to the rent provided for herein.
7. UTILITIES: Except as shown on the Plans and Specs, Lessor shall
not be required to furnish to the Lessee any utility connections or services
of any kind. The Lessee shall pay all charges for all utilities, including
gas, electricity, light, heat, power, water, sewer, cable and telephone,
used or supplied upon or in connection with the Premises and shall indemnify
the Lessor against any liability on account thereof.
8. EASEMENTS: The parties acknowledge and agree that the Premises
will be subject to the attached easements and all existing easements of
record, and no other easements.
9. CONDITION OF PREMISES: Provided Lessor and Lessee then agree on
the condition of the Premises and effect of acceptance, Lessee and Lessor
shall enter into an Addendum to this Lease, in the form attached hereto,
concerning condition of and Lessee's acceptance of the Premises upon
Lessee's taking possession of the Premises upon completion of construction
and at the Commencement Date.
10. RESTRICTIONS ON ASSIGNMENT, SUBLETTING:
10.1 By Lessee. Lessee agrees not to assign or in any manner
transfer this Lease or any estate or interest therein without the
previous written consent of Lessor which consent shall not be
unreasonably withheld or delayed; and, not to sublet the Premises or
any part or parts thereof or allow anyone to come in with, through or
under Lessee without like consent. Consent by the Lessor to one
assignment of this Lease or to one subletting or to any other
occupancy of said Premises shall not operate to exhaust the Lessor's
right hereunder.
10.2 By Lessor. Lessor intends to assign this Lease to South
Industrial Park LLC, a Nebraska limited liability company having as
members Pine Lake Partners, L.L.C., Xxx-Xxx Investment Co., L.L.C.,
Xxx Xxxxxxx, and Xxxx Xxxxxxxxx. Notwithstanding such assignment,
Xxxxxx X. Xxxxxxxx as the original Lessor shall remain responsible for
his liabilities and obligations which arise hereunder during the
period of one year after the Commencement Date. Thereafter, this
Lease shall be freely assignable by Lessor to the purchaser in a sale
of the Property in an arms length transaction where the purchaser
assumes in writing the Landlord's obligations hereunder for the
benefit of Tenant, and the effect of any such assignment shall be to
release the assignor from liabilities and obligations arising
hereunder from and after the date of such assignment.
11. RESTRICTIONS ON USE: The Lessee shall use and occupy the Premises
for a warehousing and distribution facility related purposes, and for and no
other purpose. Lessor represents and warrants that upon completion of the
Building in accordance with the Plans and Specs Lessee's use of the Premises
as a warehousing and distribution facility for its business will not violate
or conflict with any existing zoning laws, covenants, parking requirements,
or other governmental restrictions with respect to the Premises, as
completed. The Lessee shall not use the Premises nor permit them to be used
for any unlawful business or purpose whatsoever. Lessee shall not keep or
store in or about the Premises anything which will increase the rate of
insurance on the Building, nor permit any change in occupancy or any
transfer of this Lease by operation of law or otherwise, nor make any
alterations, additions or improvements, without the written consent of the
Lessor first obtained. Lessee will not invalidate any policies of insurance
now or hereafter in force with respect to said Building and will pay all
extra insurance premiums if any, required on account of extra risk caused by
the Lessee's use of the Premises. Lessor is aware of the nature of Lessee's
business and contemplated use of the Premises and the insurance has been
calculated accordingly, and the business and contemplated use will not
result in any extra insurance premiums to be paid by Lessee. Any
construction, remodeling, additions, improvements or fixtures, except
movable office furniture and trade fixtures, shall be made or installed by
the Lessee upon the Premises only after the Lessor has given written consent
hereto which shall not be unreasonably withheld or delayed, and may be
removed by Lessee upon termination of this Lease provided Lessee can remove
the same without damaging the Premises or, if damage results, Lessee repairs
such damage at its sole cost. Lessee agrees to pay promptly for any work
done or material furnished in or about the Premises and not to suffer or
permit any lien to attach to the Premises and Lessee further agrees to cause
any such lien or any claims therefor to be released promptly; provided,
however, that in the event Lessee contests any such claim, Lessee may
withhold payment and allow a lien to attach provided Lessee agrees to
indemnify and secure Lessor to Lessor's satisfaction. Notice is hereby
given that no construction or other liens sought to be taken or attached to
the Premises or the Building of which the Premises is a part shall in any
manner affect the right, title or interest of the Lessor therein, and that
Lessee shall have no authority from Lessor to permit or create any such
lien. No items of any kind shall be stored or left for any period of time
outside of the confines of the Premises without the prior written consent of
Lessor. Lessee shall maintain a constant temperature of no less than 35
degrees Fahrenheit in the Premises.
Hazardous Substances: The term "Hazardous Substances" as used in this
Lease, shall mean pollutants, containments, 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 federal, state or local law or ordinance relating to
pollution or the protection of the environment. Lessee hereby agrees that
(i) no activity will be conducted on the Premises that will produce any
Hazardous Substance, except for such activities that are part of the
ordinary course of Lessee's business ( the "Permitted Activities"), provided
said Permitted Activities are conducted in accordance with all Environmental
Laws; (ii) the Premises will not be used in any manner for the storage of
any Hazardous Substances, except for the storage of such materials that are
used in the ordinary course of Lessee's business (the "Permitted
Materials"), provided such Permitted Materials are properly stored in a
manner and location meeting all Environmental Laws and (iii) Lessee will not
permit any Hazardous Substances to be brought onto the Premises, except for
Permitted Materials, and if so brought, the same be immediately removed,
with proper disposal, and all required cleanup procedures shall be
diligently undertaken pursuant to all Environmental Laws. If, at any time
during or after the term of this Lease, the Premises is found to have been
so contaminated by Lessee or subjected to any of said conditions created by
Lessee, then Lessee shall indemnify, defend, and hold Lessor harmless from
all claims, demands, actions, liabilities, costs, expenses, damages and
obligations of any nature, including reasonable attorneys' fees, arising
from or as a result of such conditions or use of the Premises by Lessee. If
at any time during or after the term of this Lease the Premises is found to
have been contaminated by the acts and/or omissions of Lessor, Lessor's
agents, Lessor's other tenants, and/or any third party, or if any existing
environmental condition is worsened through the acts and/or omissions of
Lessor, Lessor's Agents, Lessor's other tenants, and/or any third party,
then and in any such event Lessor shall indemnify, defend, and hold Lessee
harmless from all claims, demands, actions, liabilities, costs, expenses,
damages and obligations of any nature, including reasonable attorneys' fees,
arising from or as a result of such contamination and/or environmental
condition. The foregoing indemnifications and warranties shall survive the
termination or expiration of this Lease.
12. COMPLIANCE WITH LAW: After its initial occupancy of the Premises,
the Lessee shall accomplish any remodeling with respect to the Premises
(including any plans relating thereto), and shall operate its business in a
manner which shall be in compliance with all applicable laws, ordinances,
rules and regulations of the city, county, state and federal government and
any department thereof, will not permit the Premises to be used for any
unlawful purpose, and will protect the Lessor and save Lessor and the
Premises harmless from any and all fines and penalties that may result from
or be due to any breach by Lessee of the foregoing which result in any
infractions of or non-compliance with such laws, ordinances, rules and
regulations. Lessor represents and warrants to Lessee that upon the
Commencement Date the Building and the Premises shall be in compliance with
all applicable laws, ordinances, rules and regulations of the city, county,
state and federal government and any department thereof and the Building and
the Premises may be used by Lessee for the purposes stated in paragraph 11
above, and Lessor hereby agrees to protect the Lessee and save Lessee
harmless from any and all fines and penalties that may result from or be due
to any breach by Lessor of the foregoing which result in any infractions of
or non-compliance with such laws, ordinances, rules and regulations.
13. TERMINATION PRIVILEGES UPON DAMAGE BY FIRE OR OTHER CASUALTY: In
case the Premises, or any part thereof, shall at any time be destroyed or
damaged by fire or other casualty, without the fault of the Lessee, so that
the same shall be unfit for use or occupancy, then the rent hereby reserved,
or a fair and just proportion thereof, according to the nature and extent of
the damage sustained in loss of use or occupancy, shall be suspended, cease
to be payable and so continue until the Premises shall be rebuilt or made
fit for use and occupancy. If such damage to the Premises or to the building
in which the Premises are situated is to the extent of fifty percent (50%)
or more, or, if in the judgment of either the Lessor or Lessee, the Premises
have been damaged to the extent that they can no longer be utilized as an
integrated whole, then this Lease may be terminated at the election of
either the Lessor or the Lessee, notice of which election, if exercised,
shall be given to the other party in writing within forty-five (45) days
from the date of casualty. In the event that the building on the Premises
is totally destroyed or work to put the Premises in tenantable condition is
not commenced within forty-five (45) days from the time of such damage and
continued thereafter, with reasonable diligence, all things being
considered, then this Lease may be terminated at the election of the Lessee,
notice of which election, if exercised, must be given in writing within
ninety (90) days from the date of casualty or at any time thereafter during
the period of repair if the work to put the Premises in tenantable condition
is not being pursued with reasonable diligence.
14. INSURANCE:
14.1 Lessor shall maintain, at Lessee's expense, at all times during
the term of this Lease, fire and extended coverage insurance on the
Building and improvements on the Premises in an amount adequate to
cover the cost of replacement, as determined from time to time by
Lessor and Lessee, in the event of loss. Lessee shall pay such
insurance premium within ten (10) days after demand therefor by
Lessor. A copy of an invoice from the insurance company shall be
sufficient evidence of the amount of any such premium.
14.2 During the term of this lease, the Lessee shall, at its own
expense and with a company satisfactory to Lessor, provide and
maintain in full force and effect an insurance policy or policies
protecting the Lessor and Lessee and their officers and employees
against any loss, liability or expense from personal injury, death,
property damage or otherwise arising or occurring upon or in
connection with the Premises or by reason of the Lessee's operations
upon or occupancy of the Premises, whether the same occurs or the
cause arises on or off the Premises. The Lessor shall be an
additional insured under such policy or policies. Such insurance
shall be written by responsible insurance companies satisfactory to
the Lessor and shall be in an amount not less than $500,000 for
injuries to any one person, not less than $1,000,000 for injuries to
more than one person arising out of any one accident or occurrence,
and not less than $100,000 for damage to property. Certificates of
insurance showing compliance with the foregoing requirements shall be
furnished by the Lessee to the Lessor upon Lessor's request. Such
certificates shall state that policies will not be canceled nor
altered without at least ten (10) days prior written notice to the
Lessor.
15. DENIAL OF SUBROGATION RIGHTS: Neither the Lessor nor the Lessee
shall be liable to the other for any business interruption or any loss or
damage to property or injury to or death of persons occurring on the
Premises or the adjoining property, or in any manner growing out of or
connected with the Lessee's use and occupancy of the Premises, or the
condition thereof, or of the adjoining property, whether or not caused by
the negligence or other fault of the Lessor or the Lessee or of their
respective agents, employees, subtenants licensees or assignees; provided,
however that this release shall apply only to the extent that such business
interruption, loss or damage to property or injury to or death of persons is
covered by insurance, regardless of whether such insurance is payable to or
protects the Lessor or the Lessee or both. Nothing in this paragraph shall
be construed to impose any other or greater liability upon either the Lessor
or the Lessee than would have existed in the absence of this paragraph.
16. CONDEMNATION OF PREMISES: In the event that the whole of the
Premises shall be condemned or taken in any manner for any public or any
quasi-public use, this lease shall terminate as of the date of vesting of
title. In the event that a portion of the Premises is condemned or taken by
eminent domain proceedings so as to render the Premises substantially
unusable, then in such event, Lessee shall have the right to cancel and
terminate this agreement as of the date of such taking upon giving to Lessor
notice in writing of such election within thirty (30) days after the receipt
by Lessee from Lessor of written notice of such appropriation or taking. In
the event that only a part of the Premises shall be so condemned or taken
and such taking shall not render the Premises substantially unusable, then,
effective as of the date of vesting of title, the rent hereunder for such
part shall be equitably abated and this lease shall continue as to such part
not so taken. In the event that only a part of the Building shall be so
condemned or taken, then if substantial structural alteration or
reconstruction of the Building shall, in the reasonable opinion of Lessor be
necessary or appropriate as a result of such condemnation or taking, Lessor
may, at its option, terminate this lease and the term herein granted as of
the date of such vesting of title by notifying Lessee in writing within
sixty (60) days following the vesting of title. Any termination hereunder
shall be without prejudice to the rights of either the Lessor or the Lessee
to recover compensation from such public authority for any loss or damages
caused by such taking. Neither Lessor nor Lessee shall have any right in or
to any award made to the other by such public authority; provided, however,
to the extent that Lessee is not allowed by local law to make a recovery
against such public authority, Lessor shall receive such condemnation award
and Lessee hereby expressly assigns to Lessor any and all right, title and
interest in and to such award.
17. PAYMENT OF TAXES: During the term of this Lease and any
extension or renewal thereof, the Lessee shall pay, prior to delinquency,
directly to the taxing authority, as additional rent hereunder, all real
estate taxes and special assessments becoming due and payable during each
year with respect to the Premises. Upon receipt of a tax statement from the
taxing authority, Lessor shall forward such payment to Lessee for payment.
Lessee shall provide Lessor proof of payment of all such taxes and
assessments, prior to dates on which such payments would otherwise become
delinquent. If this Lease or any extension or renewal thereof shall
terminate on a date other than the last day of the calendar year, then such
tax payment shall be prorated for that portion of the calendar year which
shall have elapsed up to and including such termination date.
18. DEFAULT, BANKRUPTCY, ETC: Should a petition in bankruptcy be
filed by the Lessee, whether for reorganization, rehabilitation or
otherwise, or should the Lessee be adjudged bankrupt or insolvent by any
court, or should a trustee or receiver in bankruptcy or a receiver of any
property of the Lessee be appointed in any suit or proceeding by or against
the Lessee, this Lease shall automatically terminate unless the Lessor shall
waive such termination provision in writing delivered to the Lessee within
thirty days after the date when Lessor has received notice of such
occurrence. Should default be made by the Lessee in the payment of rental
herein reserved, or any part thereof or any other payments provided herein
to be made, when and as herein provided, or should Lessee make default in
performing, fulfilling, keeping or observing any of the Lessee's other
covenants, conditions, provisions or agreements herein contained, or should
the Premises become vacant or abandoned, or should this Lease by operation
of law pass to any person other than the Lessee, or should the leasehold
interest be levied upon under execution, and should any of such
conditions/defaults continue for fifteen (15) days after Lessor gives Lessee
written notice of such conditions/defaults and request that the same be
cured, then and in such event, the Lessor may, if the Lessor so desires,
after such demand and notice to the Lessee declare this Lease terminated and
reenter the Premises without further notice or demand and hold and enjoy the
same thenceforth as if this Lease had not been made, without prejudice,
however, to any right of action or remedy of the Lessor in respect to any
breach by the Lessee of any of the covenants herein contained, including,
but not limited to, all of those remedies set forth hereinafter. Also in
such event, whether or not Lessor has elected to terminate this Lease as
provided herein, the Lessor shall nevertheless have and is hereby given the
right to reenter the Premises, with or without legal process, and to remove
the Lessee's signs and all property and effects of the Lessee or others, and
if the Lessor so desires, to relet the Premises or any part thereof upon
such terms, to such person or persons and for such period or periods as may
seem proper to the Lessor. In case of such reletting, the Lessee shall be
liable to the Lessor for the difference between the rents and payments
herein reserved and agreed upon for the residue of the entire stipulated
term of this Lease and the net rent for such residue of the term realized by
the Lessor by such reletting, such net rent to be determined by deducting
from the entire rent received by Lessor from such reletting the expenses of
recovering possession, reletting, altering and repairing the Premises and
collecting rent therefrom; and the Lessee hereby agrees to pay such
deficiency each month as the same may accrue, the Lessee to pay to the
Lessor, within five (5) days after the expiration of each month during such
residue of the term, the difference between the rent and payment for said
month as fixed by this Lease and the net amount realized by the Lessor from
the Premises during said month. At Lessor's option, and at any time after
the occurrence of an event of default as hereinbefore specified and a
failure to timely cure, whether or not the Lessor has collected any
additional rentals or monthly deficiencies after the occurrence of such
event of default, and whether or not the Lessor has elected to terminate
this Lease, the Lessor shall be entitled to recover from the Lessee, and the
Lessee shall pay to the Lessor, on demand, as and for liquidated and agreed
to final damages for the Lessee's default, an amount equal to the difference
between the rent and additional rent reserved hereunder for the unexpired
portion of the Lease term and the then fair and reasonable rental value of
the leased property for the same period. In the computation of such damages,
the difference between any installment of rent becoming due hereunder after
the date of termination and the fair and reasonable rental value of the
leased property for the period for which such installment was payable shall
be discounted to the date of termination at the rate of four percent (4%)
per annum. If the Premises or any part thereof is relet by the Lessor for
the unexpired term of this Lease, or any part thereof, in an arms length
transaction, before presentation of proof of such liquidated damages to any
court, commission, or tribunal, the amount of rent reserved upon such
reletting shall be deemed prima facie to be the fair and reasonable rental
value for the part of the whole of the leased Premises so relet during the
term of the reletting period.
In the event Lessor makes default in performing, fulfilling, keeping
or observing any of Lessor's covenants, conditions, provisions or agreements
herein contained and such default continues for fifteen (15) days after
Lessee gives Lessor written notice of such default and requests that the
same be cured, then Lessee may resort to any and all legal remedies or
combination of remedies which Lessee may desire to assert including but not
limited to one or more of the following: (a) contract to have a third party
perform such covenant, condition, provision or agreement that is in need of
performance and charge to Lessor any cost that Lessee incurs with respect
thereto (such charge may be in the form of a deduction from rental
payments), and/or (b) terminate this Lease, whereupon any advance rent
payments shall be immediately refunded (subject to reduction by Lessor for
any physical damages caused by Lessee to the Premises) and Lessee shall be
relieved of all further obligations and responsibilities with respect hereto
(including without limitation Lessee's obligations to pay any additional
rent), and/or (c) require Lessor to correct any failure by specific
performance, and/or (d) bring an action against Lessor for damages, and/or
(e) obtain an abatement in Lessee's rent (commensurate with the value of
loss occasioned by the default) from the first date of such failure or
default by Lessor.
19. REMEDIES REGARDING ADDITIONAL PAYMENTS: All taxes, insurance
premiums, costs and expenses which the Lessee assumes or agrees to pay
hereunder shall constitute contractual obligations of Lessee hereunder, and
in the event of nonpayment the Lessor shall have all of the rights and
remedies herein provided for in the case of nonpayment of rent or breach of
condition, and may consolidate such obligations or pursue remedies
individually.
20. SIGNS AND OTHER IDENTIFICATION: Lessee shall not place or erect
any signs or identifying marks, insignia or advertising on or about the
Premises or the Building except in conformity with local sign ordinances,
and upon the prior written consent of Lessor, which consent shall not be
unreasonably withheld or delayed. Any sign or identification shall be at
Lessee's expense. In the event Lessee shall place or caused to be placed
any sign, identifying marks, trade xxxx, insignia or advertising on or about
the Premises or the Building and if the same do not comply with the terms
and provisions of this Paragraph, Lessor shall have the right and power to
remove the same at Lessee's expense. Any damage caused to the Premises or
the Building as a result of the installation of such non-conforming item, or
the subsequent removal thereof by Lessor, shall be the responsibility and
obligation of Lessee and Lessee shall immediately reimburse Lessor in an
amount sufficient to repair such damage.
21. SUBORDINATION AND CONSENT: Upon Lessor's request, Lessee shall
make a limited subordination of Lessee's rights hereunder to the lien of any
mortgage, deed of trust, or other security document which is a lien against
the Premises; provided, however, that Lessee's obligation to provide such
limited subordination shall be conditioned upon and subject to Lessee
receiving an agreement in proper form for recording from such security
interest holder (hereafter the "holder"), for said holder and its successors
and assigns, whereby said holder agrees that in the event of a default under
such mortgage, deed of trust, or other security document, for so long as
Lessee shall not have failed to timely cure a default hereunder as would
permit Lessor to terminate this Lease: (a) such holder (and its successors
and assigns) shall not cut off or terminate this Lease (including without
limitation any of the extended terms herein provided), and (b) the holder
(and its successors and assigns) shall not disturb Lessee in its possession
or use of the Premises, and (c) despite such mortgage, deed of trust, or
other security document, and any default by Lessor and/or liquidation or
foreclosure thereunder, this Lease and Lessee's rights and occupancy
hereunder shall continue in full force and effect and shall be unimpaired
and unaffected, and therefore not terminated, modified, diminished, or
disturbed in any way whatsoever by any reason thereof. Lessee agrees that
upon Lessor's request the said limited subordination shall also provide that
for so long as Lessor shall not have failed to timely cure a default
hereunder, then upon the holder obtaining the rights of Lessor hereunder the
Lessee shall attorn to the holder and the holder shall be obligated to
Lessee hereunder.
22. SURRENDER INVALID UNLESS WRITTEN: No surrender of the Premises
for the remainder of the term hereunder shall be binding upon the Lessor
unless accepted by the Lessor in writing. Without limiting the generality of
the foregoing, it is agreed that the receipt or acceptance of the keys to
the Premises by the Lessor shall not constitute an acceptance of a surrender
of the Premises.
23. HOLDING OVER: If the Lessee shall remain in possession of the
Premises after the expiration of the term of this lease, such possession
shall be as a month-to-month tenant only. During such month-to-month
tenancy, unless otherwise agreed in writing by Lessor, rent shall be payable
at one and one-half times the rate as that in effect during the last month
of the preceding term, and the provisions of this Lease shall otherwise be
applicable.
24. WAIVER: One or more waivers of any provision of this lease by
either party shall not be construed as a waiver of a subsequent breach of
the same provision, and either party's consent or approval to or of any act
by the other requiring such consent or approval shall not be deemed to waive
or render unnecessary consent or approval to or of any subsequent similar
act by the other.
25. NOTICES: Any and all notices or demands required or permitted to
be given hereunder shall be deemed to be property served if hand delivered,
or if sent by registered or certified mail, postage prepaid, or by facsimile
with transmission confirmed, addressed or sent to the Lessor at
XXXXXX X. XXXXXXXX
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
FAX 000-000-0000
or addressed to the Lessee at
LINCOLN SNACKS COMPANY, a Delaware corporation
Attention: Xxxxxxxx Crabs, VP and C.F.O.
0 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
FAX 000-000-0000
or at such other address or addresses as either party may hereafter
designate in writing to the other. Any notice or demand so mailed shall be
effective for all purposes at the time of deposit thereof in the United
State mail, or at the time of facsimile confirmation.
26. DISCLOSURE: Lessee is hereby notified that the Lessor herein
holds a Nebraska Real Estate license.
27. NO OTHER AGREEMENTS: This lease and the Real Estate Purchase
Agreement for the Property executed in connection herewith contain the
entire understanding and agreement of the parties, and supersede all prior
understandings and agreements.
28. MODIFICATIONS:
28.1 Modifications to Lease. This Lease cannot be revised, adjusted
or modified unless in writing signed by both parties. If the
completion of construction is delayed by general strikes, then, and in
such event, the time of completion of construction and the
Commencement Date of the Lease shall be extended for an additional
period equal to the amount of time lost due to such delay. Lessor
shall at the time of such delay, if any, notify Lessee in writing the
amount of additional time necessary in which to complete construction.
All other causes for delay are at Lessor's risk.
28.2 Modifications or Alterations to Premises. After the
Commencement Date, Lessee may, at Lessee's own cost and expense, make
reasonable modifications or alterations to the interior or exterior of
the Premises, after having first obtained the consent of Lessor, which
consent shall not be unreasonably withheld.
29. INDEMNIFICATION: Lessee shall indemnify, defend, and hold
harmless, Lessor at Lessee's expense, against all claims, expenses and
liabilities, including but not limited to reasonable attorneys' fees
incurred in successfully pursuing any of Lessor's legal remedies hereunder
or in defending himself in legal proceedings of any kind, arising from (a)
failure of Lessee to perform any covenant required to be performed by Lessee
hereunder; (b) any accident, injury or damage which shall happen in or about
the Premises on or after the Commencement Date and is caused by Lessee; and
(c) any negligent act or omission or willful misconduct by Lessee, or its
agents, contractors, employees or licensees.
Lessor shall indemnify, defend, and hold harmless, Lessee at Lessor's
expense, against all claims, expenses and liabilities, including but not
limited to reasonable attorneys' fees incurred in successfully pursuing any
of Lessee's legal remedies hereunder or in defending itself in legal
proceedings of any kind, arising from (a) failure of Lessor to perform any
covenant required to be performed by Lessor hereunder; (b) any accident,
injury or damage which shall happen in or about the Premises on or after the
Commencement Date and is caused by Lessor; and (c) any negligent act or
omission or willful misconduct by Lessor, or his agents, contractors,
employees or licensees.
30. EXPLANATORY PROVISIONS: The provisions of this lease shall be
binding upon, inure to the benefit of and apply to the respective heirs,
executors, administrators, successors and assigns of the parties hereto. The
masculine pronoun, wherever used, shall include the feminine and neuter, and
the singular shall include the plural. Headings are given to the paragraphs
of this lease solely as a convenience to facilitate reference and shall not
be deemed material or relevant to the construction of the lease or any
provision thereof.
31. EXHIBITS: All Exhibits attached to this Lease are incorporated
in this Lease by reference.
32. CONTINGENCY: This Lease is expressly contingent upon the Lessor
closing on or before October 10, 1996: (i) on the purchase of Xxx 0, Xxxxx
0, Xxxxxxx Xxxxxxxxxx Xxxx South, Lincoln, Nebraska, and (ii) on the
purchase of Xxxx 0 xxx 0, Xxxxx 0, Xxxxxxx Xxxxxxxxxx Xxxx South, Lincoln,
Nebraska.
33. QUIET ENJOYMENT: Except as otherwise provided herein, for so
long as Lessee has not failed to timely cure a default hereunder as would
permit Lessor to terminate this Lease, then during the term hereof Lessee
may peaceably and quietly enjoy the leased property without any disturbance
from the Lessor, or any other person claiming through or under the Lessor.
34. MEMORANDUM OF LEASE. Lessor and Lessee agree that a Memorandum
of Lease may be filed by either of them with the Lancaster County Register
of Deeds. Lessor and Lessee each agree to sign a Memorandum of Lease if
requested to do so by the other.
35. RENEWAL OPTIONS.
35.1 Years 11-15. Provided that there is no uncured default then
existing under the terms and conditions of this Lease, Lessee shall
have the option to extend the original term of this Lease for an
additional five (5) years from the expiration of the original term,
with such extended term (the "11-15 Year Term") to be subject to the
same conditions and provisions as set forth herein, except as to rent.
If Lessee desires to exercise this option it shall give Lessor written
notice of such intention at least one hundred eighty (180) days prior
to the termination of the original ten (10)-year term. If no such
notice is given, then this Lease shall expire upon the expiration of
the original ten (10)-Year Term, unless sooner terminated in
accordance with the provisions herein. The monthly rent for each of
the months during the 11-15 Year Term shall be in an amount equal to
Twenty Thousand and 00/100 Dollars ($20,000.00) times a fraction, the
numerator of which is the Cost of Living Index for the last month of
the original ten (10)-year term, and the denominator of which is the
Cost of Living Index for the first month of the original ten (10)-Year
Term. For purposes of this Lease, the term "Cost of Living Index"
shall mean that index shown in the Consumer Price Index as the U.S.
City Average for all Urban Consumers published by the Bureau of Labor
Statistics, United States Department of Labor.
35.2 Years 16-20. Provided the option described in Section 35.1 was
exercised and that there is no uncured default then existing under the
terms and conditions of this Lease, Lessee shall have the option to
further extend the term of this Lease for an additional five (5) years
from the expiration of the 11-15 Year Term, with such extended term
(the "16-20 Year Term") to be subject to the same conditions and
provisions as set forth herein, except as to rent. If Lessee desires
to exercise this option it shall give Lessor written notice of such
intention at least one hundred eighty (180) days prior to the
termination of the 11-15 Year Term. If no such notice is given, then
this Lease shall expire upon the expiration of the 11-15 Year Term,
unless sooner terminated in accordance with the provisions herein.
The monthly rent for each of the months during the 16-20 Year Term
shall be in an amount equal to Twenty Thousand and 00/100 Dollars
($20,000.00) times a fraction, the numerator of which is the Cost of
Living Index for the last month of the 11-15 Year Term, and the
denominator of which is the Cost of Living Index for the first month
of the original ten (10) Year Term.
36. DISCLOSURE. Lessee is hereby notified that Lessor holds a
Nebraska Real Estate License. Lessor also conducts real estate business in
the name of Xxx-Xxx Investment Co., L.L.C. ("Xxx-Xxx"), a Nebraska limited
liability company having the following two members: Lessor and Xxxxxxxx X.
Xxxxx, who also holds a Nebraska Real Estate License. Subject to the terms
herein, Xxx-Xxx may acquire an interest in the property that is the subject
of this Lease, or in this Lease.
37. PRORATIONS. To the extent Lessee is responsible to make payment
hereunder with respect to any expense which is typically billed with respect
to the entire Property (i.e., real estate taxes, insurance, non-separately
metered utilities, mowing, snow removal, etc.), then Lessee's share of such
expense shall be 57.4% (50,000/87,040) of the total cost and the balance at
42.6% shall be paid by Lessor or Lessor's other tenant at the Property.
IN WITNESS WHEREOF, the parties hereto have executed this lease on the dates
set forth below.
LESSOR
/s/ Xxxxxx X. Xxxxxxxx Date: 10/10/96
XXXXXX X. XXXXXXXX
Witness:/s/ Christie Schwartzhopf Xxxxxxx Date: 10/10/96
LESSEE
LINCOLN SNACKS COMPANY, a Delaware corporation
By: /s/ Xxxxxxx X. Xxxx, Xx. Date: 10/10/96
Its Executive Vice President and Chief Operating Officer
and By:/s/ Xxxxxxxx X. Crabs Date: 10/10/96
Its Chief Financial Officer
ADDENDUM TO LEASE
THIS ADDENDUM, made and entered into this ________ day of
____________________,1997, is to that certain Lease dated , 1996 by
and between XXXXXX X. XXXXXXXX, hereinafter called "Lessor", and LINCOLN
SNACKS COMPANY, a Delaware corporation, hereinafter called "Lessee".
Capitalized terms in the Lease shall have the same meanings herein. When
fully executed, this Addendum shall form a part of the Lease.
The parties agree as follows.
1. CONDITION OF PREMISES; ACCEPTANCE BY LESSEE: The Lessee has
examined the Premises and is satisfied with the physical condition thereof,
including its fitness for Lessee's intended purpose, except as noted on the
attached Exhibit 1. Lessee's taking possession of the Premises upon
completion of construction and at the Commencement Date shall be conclusive
evidence, together with this Addendum, of its receipt thereof in good and
satisfactory order and repair, except as noted on the attached Exhibit 1.
Lessee acknowledges that no representation as to the condition or repair of
the Premises has been made by or on behalf of the Lessor, except as noted on
the attached Exhibit 1, and likewise acknowledges that no agreement or
promise to decorate, alter, repair or improve the Premises including all
equipment and appurtenances, either before or after the execution hereof,
has been made by or on behalf of the Lessor, except as noted on the attached
Exhibit 1. The occupancy by Lessee of the leased Premises shall constitute
an acknowledgment by Lessee that the leased Premises are in the condition
called for by the Lease and that Lessor has performed all of the Lessor's
work with respect thereto and that all construction and/or remodeling
required in accordance with the terms of the Lease have been fully and
satisfactorily completed in accordance with the terms thereof except as
noted on the attached Exhibit 1.
2. CONTRACTOR'S ONE-YEAR WARRANTY FOR WORKMANSHIP: Lessor's
general contractor, Xxxxxxx Construction Co., Inc. makes a one-year warranty
for workmanship on its work in connection with construction of the
Improvements. Lessor agrees to pass through to Lessee the benefits of such
warranty to the extent and for the duration of the warranty.
IN WITNESS WHEREOF, the parties hereto have executed this Addendum on the
dates set forth below.
LESSOR
Date:
XXXXXX X. XXXXXXXX
Witness: Date:
LESSEE
LINCOLN SNACKS COMPANY, a Delaware corporation
By: Date:
,
Attest: Date:
LIST OF EXHIBITS
Exhibit A Site Plan showing Premises
Description: Site Plan of premises showing 50,000
square feet of space in the to-be-constructed
commercial building comprising an estimated 87,040
square feet, plus the surrounding area as all shown
to be located upon Xxxx 0 xxx 0, Xxxxx 0, Xxxxxxx
Xxxxxxxxxx Xxxx South, Lincoln, Lancaster County,
Nebraska.
Exhibit B Map of Lincoln Industrial Park South
Description: Map of Lincoln Industrial Park South.
Exhibit C Plans
Special conditions as listed on next page.
Exhibit D Specifications
Description: General specifications of floor plan.
LINCOLN SNACK WAREHOUSE
October 4, 1996
EXHIBIT C
SPECIAL CONDITIONS INCLUDED:
1. Building sets at elevation 1216.5 FFE.
2. Dock high south wall.
3. Pre-engineered metal building structure.
4. Paving at south for truck access.
5. Landscaping and lawn irrigation.
6. Six inch (6") concrete slab-on-grade with rebar.
7. Exit doors per code.
8. Four (4) entry doors.
9. Drywall demising wall at 50,000 S.F. xxxx.
10. Restroom and office in 50,000 S.F. area.
11. Six (6) dock levelors.
12. Semi-rigid epoxy floor joints.
13. Water and fire services to building, sewer and storm water service to
building.
14. Direct-fixed, rooftop units with air conditioning for 50,000 S.F.
area.
15. Infra-red heater at docks.
16. Three-phase electric service.
17. High-pressure sodium warehouse lighting.
18. Exit lights per code.
19. Convenience outlets.
20. Fire sprinkler system for Product Mfg. By Lincoln Snack.
21. Connector Link to existing building.
FIRE LANE AND ACCESS EASEMENT
THIS AGREEMENT is made effective the 10th day of October, 1996 by and
between LINCOLN SNACKS COMPANY, a Delaware corporation ("Grantor"), and
XXXXXX X. XXXXXXXX ("Grantee").
RECITALS
WHEREAS, Grantor is the owner of the following described property
("Subject Property"):
Xxx 0, Xxxxx 0, Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxx Xxxxxx, Nebraska
WHEREAS, Grantee is the owner of adjoining property, having purchased
such property from Grantor on the effective date hereof, described as:
Xxxx 0 xxx 0, Xxxxx 0, Xxxxxxx Xxxxxxxxxx Xxxx
South, Lincoln, Lancaster County, Nebraska
("Warehouse Property")
WHEREAS, Grantee intends to construct on Grantee's property a
warehouse ("Building"), a portion of which will be leased back to
Grantor, that will be set back 20' from the north property line of the
Warehouse Property;
WHEREAS, a 60' wide lane is required by City of Lincoln building codes
for emergency/fire access on the north side of the Building; and
Grantor has agreed to grant an easement for that purpose;
NOW, THEREFORE, in consideration of and incorporating the foregoing
Recitals, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree:
TERMS
1. Grant of Easement. Grantor hereby grants to Grantee a perpetual
access easement over the south 40' of the Subject Property, as shown on
Exhibit "A", attached hereto and incorporated herein by this reference. No
above-ground structure shall be constructed on the property reserved for
such easement. In addition to providing access to the Warehouse Property,
such property may be used by emergency personnel and vehicles in the event
of a fire or other emergency.
2. Maintenance. The property that is the subject of the easement
granted herein shall be maintained at the expense of Grantor.
3. Binding Effect. This Easement shall run with the land and shall
be binding upon the parties' heirs, successors and assigns.
GRANTEE: GRANTOR:
XXXXXX X. XXXXXXXX LINCOLN SNACKS COMPANY,
a Delaware corporation
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxx, Xx.
Xxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxx, Xx.
STATE OF NEBRASKA )
) ss
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this 10th day
of October, 1996 by Xxxxxx X. Xxxxxxxx.
/s/ Xxxxxxx X. Xxxxx
Notary Public
My Commission Expires: 8/11/98
STATE OF NEBRASKA )
) ss
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this 10th day
of October, 1996 by Xxxxxxx X. Xxxx, Xx., the Executive Vice President and
Chief Operating Officer of LINCOLN SNACKS COMPANY, a Delaware corporation,
on behalf of the corporation.
/s/ Xxxxxxx X. Xxxxx
Notary Public
My Commission Expires: 8/11/98
FIRE LANE AND ACCESS EASEMENT EXHIBITS:
Description Exhibit A: Emergency Fire Access Easement over the South
Forty and No Tenths (40.0) feet of Xxx 0, Xxxxx
0, Xxxxxxx Xxxxxxxxxx Xxxx.
ACCESS EASEMENT
THIS AGREEMENT is made effective the 10th day of October, 1996 by and
between LINCOLN SNACKS COMPANY, a Delaware corporation ("Grantor"), and
XXXXXX X. XXXXXXXX ("Grantee").
RECITALS
WHEREAS, Grantor is the owner of the following described property
("Subject Property"):
Xxx 0, Xxxxx 0, Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxxx,
Xxxxxxxxx Xxxxxx, Nebraska
WHEREAS, Grantee is the owner of adjoining property, having purchased
such property from Grantor on the effective date hereof, described as:
Xxxx 0 xxx 0, Xxxxx 0, Xxxxxxx Xxxxxxxxxx Xxxx
South, Lincoln, Lancaster County, Nebraska
("Warehouse Property")
WHEREAS, Grantee intends to construct on Grantee's property a
warehouse ("Building"), a portion of which will be leased back to
Grantor, that will be set back 20' from the north property line of the
Warehouse Property;
WHEREAS, depending upon the future uses of the Building, additional
parking may be needed on the north side of the Building, to which
access will be necessary over and across the Subject Property and
Grantor has agreed to grant an easement for that purpose;
NOW, THEREFORE, in consideration of and incorporating the foregoing
Recitals, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree:
TERMS
1. Grant of Easement. Grantor hereby grants to Grantee a perpetual
common access easement, for the benefit of the Warehouse Property, over and
across the cross-hatched area on the Subject Property, as shown on Exhibit
"A", attached hereto and incorporated herein by this reference. It is the
intent and purpose of this easement to provide access to any future parking
areas along the north side of the Building on the Warehouse Property. Such
parking shall be for the use of all motor vehicles, but shall not be used
for parking semi-trailers.
2. Maintenance. The property that is the subject of the easement
granted herein shall be maintained at the expense of Grantor.
3. Binding Effect. This Easement shall run with the land and shall
be binding upon the parties' heirs, successors and assigns.
GRANTEE: GRANTOR:
XXXXXX X. XXXXXXXX LINCOLN SNACKS COMPANY,
a Delaware corporation
/s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxx, Xx.
Xxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxx, Xx.
STATE OF NEBRASKA )
) ss
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this 10th day
of October, 1996 by Xxxxxx X. Xxxxxxxx.
/s/ Xxxxxxx X. Xxxxx
Notary Public
My Commission Expires: 8/11/98
STATE OF NEBRASKA )
) ss
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this 10th day
of October, 1996 by Xxxxxxx X. Xxxx, Xx., the Executive Vice President and
Chief Operating Officer of LINCOLN SNACKS COMPANY, a Delaware corporation,
on behalf of the corporation.
/s/ Xxxxxxx X. Xxxxx
Notary Public
My Commission Expires: 8/11/98
ACCESS EASEMENT EXHIBITS:
Description Exhibit A: DESCRIPTION of a Common Access Easement for
Ingress and Egress on a part of Xxx 0, Xxxxx 0,
Xxxxxxx Xxxxxxxxxx Xxxx, more particularly
described as follows:
Referring to the Southwest corner of said Lot 8,
thence in a Northerly direction along the West
line of said Lot 8, a distance of Eighty-Nine and
No Tenths (89.0) feet. Thence in an Easterly
direction parallel to the South line of said Lot
8, a distance of One Hundred and No Tenths
(100.0) feet. Thence in a Southerly direction,
parallel to the West line of said Lot 8, a
distance of Forty-Nine and No Tenths (49.0) feet.
Thence in an Easterly direction, parallel to the
South line of said Lot 8, a distance of Three
Hundred Thirty and No Tenths (330.0) feet.
Thence in a Southerly direction, parallel to the
West line of said Lot 8, a distance of Forty and
No Tenths (40.0) feet to a point on the South
line of said Lot 8. Thence in a Westerly
direction along the South line of said Lot 8, a
distance of Four Hundred Thirty and No Tenths
(430.0) feet to the Point of Beginning.
DECLARATION OF RECIPROCAL EASEMENTS
THIS DECLARATION OF RECIPROCAL EASEMENTS is made effective the 10th
day of October, 1996 by XXXXXX X. XXXXXXXX ("Declarant").
RECITALS
WHEREAS, Declarant has on the effective date hereof, purchased the
following described property ("Subject Property"):
Xxxx 0, 0, xxx 0, Xxxxx 0, Xxxxxxx Industrial Park
South, Lincoln, Lancaster County, Nebraska
WHEREAS, Declarant intends to begin construction immediately of a
warehouse ("First Building") on Lots 1 and 2, and Declarant intends to
construct a commercial building on Lot 3 in the future ("Second Building"),
all as shown on Exhibit "A" attached hereto and incorporated herein by this
reference;
WHEREAS, Declarant desires by this Declaration to assure access to
both the First Building and the Second Building, and to assure sufficient
space for large trucks to dock and turn in the area located between the
First Building and the Second Building;
NOW, THEREFORE, in consideration of and incorporating the foregoing
Recitals, Declarant hereby grants the easements described herein.
TERMS
1. Grant of Easement. Declarant hereby grants and creates a
perpetual and reciprocal common access easement to and from South 19th
Street, for the benefit of the owners and occupants of the Subject Property
from time to time, located on the N. 35' of the South 62.5' of Lot 2 of the
Subject Property, as shown on Exhibit "B" attached hereto and incorporated
herein by this reference ("Easement Area"). It is the intent and purpose of
this easement to provide for vehicular access both to and from South 19th
Street, and over and across the Easement Area for commercial purposes
associated with the First Building and the Second Building.
2. Maintenance. The property that is the subject of the easement
granted herein shall be maintained at the expense of the owner of Lot 2 of
the Subject Property, who may, at such owner's option, allocate and assess
such maintenance costs to the respective owners of the Lots comprising the
Subject Property.
3. Binding Effect. This Easement shall run with the land and shall
be binding upon the parties' heirs, successors and assigns.
DECLARANT:
XXXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
STATE OF NEBRASKA )
) ss
COUNTY OF LANCASTER )
The foregoing instrument was acknowledged before me this 10th day
of October, 1996 by Xxxxxx X. Xxxxxxxx.
/s/ Xxxxxxx X. Xxxxx
Notary Public
My Commission Expires: 8/11/98
DECLARATION OF RECIPROCAL EASEMENTS EXHIBITS:
Description Exhibit A: To-be-constructed warehouse ("First Building") on
Lots 1 and 2, and to-be-constructed commercial
building on Lot 3 ("Second Building") as shown.
Description Exhibit B: Common Access Easement over the North Thirty-Five
and No Tenths (35.0) feet of the South Sixty-Two
and Five Tenths (62.5) feet of Xxx 0, Xxxxx 0,
Xxxxxxx Xxxxxxxxxx Xxxx Xxxxx.
