EXHIBIT 10.38
Printed in U.S.A
AGREEMENT OF LEASE
AGREEMENT OF LEASE made this 6th day of December 1998 by and between THE
BUNCHER COMPANY (hereinafter called "Landlord"), a Pennsylvania corporation
having its principal place of business in the Allegheny County, Pennsylvania and
X X FOOD SERVICE, INC. (hereinafter called "Tenant"), a corporation having its
principal place of business in the City of Louisville, Jefferson County,
Kentucky.
WHEREAS, Landlord has full right and power to lease pursuant hereto a
certain parcel of land (the "Premises") more particularly described in and/or
shown outlined in red on Exhibit A attached hereto, upon which is erected a
portion of a building and other improvements incidental thereto (which building
portion and other incidential improvements are hereinafter called the
"Improvements"); and
WHEREAS, Landlord desires to lease to Tenant and Tenant desires to take and
hire from Landlord the Premises and the improvements. (The Premises and the
Improvements are sometimes hereinafter collectively called the "Leased
Premises".)
NOW, THEREFORE, WITNESSETH, That Landlord hereby demises and leases unto
Tenant, and Tenant hereby takes and hires from Landlord the Leased Premises,
subject to the terms and conditions hereof.
TERM TO HAVE AND TO HOLD the Leased Premises unto Tenant for a term of five (5)
years and two (2) months commencing at 12:01 A.M. on March 1, 1999 (the
"Commencement Date") and ending at 11:59 P.M. on April 30, 2004; subject
nevertheless, to the following covenants and conditions which Landlord and
Tenant respectively covenant and agree to keep and perform.
RENT
See Rider
Paragraph #2
TAXES 2. Tenant will pay to Landlord on demand and as additional
See Rider rental hereunder all real estate taxes (including taxes
Paragraph #5 levied or assessed in lieu of or as a substitution for real
estate taxes) imposed, assessed or levied upon or against the
Leased Premises during the term of this Lease.
In addition, Tenant will pay to Landlord on demand as
additional rental hereunder, each and every item of expense
in the nature of a tax or imposition for the payment of which
Landlord is or shall become liable by reason by Landlord's
estate or interest in the Leased Premises, or any portion
thereof, including without limiting the generality thereof
all personal property taxes, sales taxes, excise taxes, use
and occupancy taxes, whether or not the same are now
customarily levied or enacted and regardless of whether the
same shall be general or special, foreseen or unforeseen,
provided the same shall be (i) levied or assessed against
Landlord or Tenant in connection with the Leased Premises, or
any portion thereof, or (ii) levied, assessed or imposed
upon, or against, or which shall be measured by, any rents or
rental income, as such, payable to Landlord, provided,
however, that Tenant shall not be obligated hereunder to pay
any of the following:
a. any estate, inheritance, devolution, succession,
transfer, legacy or gift tax which may be imposed
upon or with respect to any transfer of Landlord's
interest in the Leased Premises; or
b. any net income tax levied upon or against Landlord's
income from all sources.
USE 3. Tenant will use and occupy the Leased Premises only for
operating a food and dry goods commissary distribution center
for the manufacture and distribution of dough and related
products, and will not create, permit or maintain any
nuisance thereon. Tenant will not use or occupy or suffer or
permit the Leased Premises or any part thereof to be used or
occupied for (a) any purpose contrary to law or the rules or
regulations of any governmental authority having jurisdiction
over the Leased Premises (b) any purpose which in the
judgment of Landlord is hazardous or detrimental to persons
or property.
MAINTENANCE 4. Tenant will at Tenant's sole cost and expense keep the Leased
AND REPAIR Premises and all equipment and personal property of Landlord
See Rider therein in good order, condition and repair, damage by
Paragraph #3 insured casualty excepted. If Tenant fails or refuses to
keep the Leased Premises in good order, condition and repair
as aforesaid, Landlord may do so, and charge the cost thereof
to Tenant to be collected as additional rental hereunder.
Landlord shall, during the term of this Lease, at its
sole cost and expense and as promptly as is reasonable under
the circumstances, make all needed structural repairs
(exclusive of painting) to the Improvements upon receipt of
notice from Tenant of the need for such repairs, unless the
need for such repairs was caused by the wrongful act or
negligence of Tenant, in which event Tenant shall promptly
make such repairs at Tenant's sole cost and expense.
Structural repairs shall mean only repairs to the roof,
exterior walls, floors, foundations and steel frame of the
Improvements. Structural repairs shall be deemed to be needed
when the failure to make same will result in a hazard to
persons or property and/or cause a major impairment to
Tenant's use of the Leased Premises for the purpose set forth
in section 3 hereof.
ALTERATIONS 5. Tenant will not make or permit to be made any alterations,
improvements and additions to the Leased Premises or any part
thereof except by and with the prior written consent of
Landlord, which consent shall not be unreasonably withheld.
All alterations, improvements and additions to the Leased
Premises shall be made in accordance with all applicable laws
and shall at once when made or installed be deemed to have
attached to the freehold and to have become the property of
Landlord and shall remain for the benefit of Landlord at the
end of the term of this Lease or other expiration of this
Lease in as good order and condition as they were when
installed, reasonable wear and tear and damage insured
casualty excepted; provided, however, if prior to the
termination of this Lease, or within fifteen (15) days
thereafter Landlord so directs by written notice to Tenant.
Tenant shall at Tenant's sole cost and expense promptly
remove the alterations, improvements and additions which were
placed in the Leased Premises by Tenant and which are
designated in said notice and repair any damage occasioned
by such removal and restore the Leased Premises to the
condition in which they were prior to such alterations,
improvements or additions and in default thereof Landlord may
effect said removals and repairs at Tenant's expense. In the
event of making such alterations, improvements and additions
as herein provided. Tenant further will indemnify and save
harmless Landlord form all expense, liens, claims or damages
or injuries to either persons or property arising out of, or
resulting from the undertaking, making or removal of said
alterations, additions and improvements.
ASSIGNMENT 6. Tenant shall not assign this Lease or sublet the whole or any
TO SUB- part of the Leased Premises or permit any other persons to
LETTING occupy same without the prior written consent of Landlord.
Landlord shall not unreasonably withhold such consent. Any
such assignment or subletting, even with the consent of
Landlord, shall not relieve Tenant from liability for payment
of rent or other sums herein provided or from the obligation
to keep and be bound by the terms, conditions and covenants
of this Lease. The acceptance by Landlord of rent from any
other person shall not be deemed to be a waiver of any of the
provisions of this Lease or to be a consent to the assignment
of this Lease or subletting of the Leased Premises.
Any transfer of this Lease from Tenant by merger,
consolidation or liquidation shall constitute an assignment
of this Lease and shall require the prior written consent of
Landlord, which consent shall not be unreasonably withheld.
An assignment for the benefit of creditors or by operation of
law shall not be effective to transfer any rights to an
assigne without the prior written consent of the Landlord
first having been obtained.
UTILITIES 7. Tenant will pay for all public and private utility
services, including water and sewer rentals, used or consumed
on or in connection with the Leased Premises. Electric and
gas to be separately metered; water and sewer will be
submetered and charges will be billed by Landlord based upon
useage.
INSURANCE 8. During the term of this Lease, Tenant will at Tenant's
sole cost and expense maintain with insurance companies
satisfactory to Landlord comprehensive public liability and
property damage insurance with respect to the Leased
Premises, with minimum limit of $1,000,000 with respect to
the death or injury of one person, and $2,000,000 with
respect to the death or injury of two or more persons and
$250,000 with respect to property damage. Such insurance
coverage shall be endorsed to include the contractual
liability assumed by Tenant under section 9 hereof.
See Rider Prior to the Commencement Date, Tenant shall furnish
Paragraph #4 to Landlord certificates evidencing the comprehensive public
liability insurance and property damage coverage as provided
in this section 8 above, said certificates and policies to
contain the standard 10 day notification clause to Landlord
and Landlord's mortgagee in the event of change of
cancellation of insurance coverage and shall name Landlord as
an additional insured.
INDEMNITY 9. Tenant will protect and save and keep Landlord forever
harmless and indemnified against and from any penalty or
damage or charges imposed for any violation of any law or
ordinance, whether occasioned by the neglect of Tenant or
those holding under Tenant, and Tenant will at all times
protect, indemnify and save and keep harmless Landlord
against and from all claims, loss, cost, damage or expense
arising out of or from any accident or other occurrence on
or about the Leased Premises causing injury to any person
or property whomsoever or whatsoever, and will protect,
indemnify, save and keep harmless Landlord against and from
any and all claims and against and from any and all loss,
cost, damage, or expense arising out of any failure of
Tenant in any respect to comply with and perform all the
requirements and provisions of this Lease.
SURRENDER 10. Tenant will deliver up and surrender to Landlord
possession of the Leased Premises upon expiration of the
term of this Lease or upon the earlier termination of this
Lease, broom clean and in as good condition and repair as
the same shall be at the commencement of the term of this
Lease, ordinary wear and tear and damage by insured casualty
excepted. Tenant hereby waives any notice now or hereafter
required by law with respect to vacating at the termination
of any tenancy.
ACCESS TO 11. Tenant will permit Landlord or Landlord's agent to
LEASED inspect or examine the Leased Premises at any reasonable time
PREMISES and upon reasonable notice (immediately in case of an
emergency) and permit Landlord to make such repairs to the
Leased Premises as Landlord may deem necessary for
preservation of the Leased Premises and which Tenant has
failed so to make without the same being construed as an
eviction of Tenant in whole or in part, and the rent shall in
no wise xxxxx while such repairs, alterations, improvements
or additions are being made by reason of loss or interruption
of the business of Tenant because of the prosecution of such
work.
Landlord shall have the right to enter upon the
Leased Premises at any reasonable time upon reasonable notice
and from time to time during the term of this Lease for the
purpose of exhibiting the same to prospective purchasers and
for a period commencing 180 days prior to the end of the
term of this Lease for the purpose of exhibiting the same to
prospective tenants. During said 180-day period Landlord
may place signs in or upon the Leased Premises to indicate
that same are for rent or sale, which signs shall not be
removed, obliterated or hidden by Tenant.
TENANTS 12. All fixtures, equipment, including equipment that
PROPERTY may be bolted or attached to the Leased Premises and other
property placed or installed in or on the Leased Premises by
Tenant and designed for and used in the conduct of Tenant's
business in the Leased Premises, shall at all times be and
remain the property of Tenant. Tenant will at Tenant's sole
cost and expense remove all such equipment, fixtures and
other property form the Leased Premises prior to the
termination of this Lease and Tenant will at Tenant's cost
and expense repair any and all damage to the Leased Premises
caused or occasioned by the installation or removal of said
fixtures, equipment or other property. Any and all such
equipment, fixtures and other property which shall remain
on the Leased Premises for more than five (5) days after the
termination of this Lease, shall at Landlord's option be
deemed abandoned by Tenant and become the sole property of
Landlord, or may be removed by Landlord in which case Tenant
shall pay or reimburse Landlord for the cost of such removal
and of repairing any and all damage to the Leased Premises
caused thereby.
SIGNS 13. Tenant may install at Tenant's own cost and expense
an appropriate sign or signs on the Leased Premises
referring to Tenant's business or services; provided,
however, that the size, type and location of any such sign
shall comply with all applicable laws and governmental
rules, regulations and restrictions and shall be subject to
Landlord's approval, which approval shall not be unreasonably
withheld.
CONDEMNATION 14. If the Leased Premises or any part thereof shall be
OF THE LEASED taken or condemned either permanently or temporarily for
PREMISES any public use or purpose by any competent authority in
condemnation proceedings or by any right of eminent domain,
the entire compensation award thereof, both leasehold and
reversion, shall belong to the Landlord without any
deduction therefrom for any present or future estate of
Tenant, and Tenant hereby assigns to Landlord all its right,
title and interest to any such award. Tenant, shall,
however, be entitled to claim, prove and receive in such
condemnation proceedings such award as may be allowed for
fixtures and other equipment installed by Tenant and for lost
business or increased cost incurred, but only if such award
shall be in addition to the award for the Leased Premises.
If substantially all of the Leased Premises shall be
taken as aforesaid or if any such taking shall render the
Leased Premises unfit for the conduct of Tenant's business,
then this Lease shall terminate and shall become null and
void from the time possession thereof is required for public
use, and from that date the parties hereto shall be released
from all further obligations hereunder.
If only a portion of the Leased Premises shall be so
taken or condemned, which taking shall not render the Leased
Premises substantially unfit for the conduct of Tenant's
business, then Landlord at its own expense shall repair and
restore the portion not affected by the taking and this
Lease shall continue in full force and effect except that
the rental shall be equitably and proportionately reduced.
DAMAGE OR 15. If, during the term of this Lease, the Improvements
DESTRUCTION are so damaged or destroyed by insured casualty so as to
render the Improvements unfit for occupancy by Tenant for the
purposes set forth in section 3 of this Lease, and if the
Improvements cannot in the sole judgment of Landlord be
repaired, restored or rebuilt within five (5) months from the
happening of such damage or destruction, then Landlord may
terminate this Lease as of the date of such damage by giving
Tenant notice in writing with respect thereto within thirty
(30) days from the date of such happening. In such case,
rental hereunder shall xxxxx as of the date of such damage or
destruction and Landlord shall be entitled to retain all
insurance proceeds resulting from such damage or destruction.
Landlord shall refund to Tenant any unearned rent paid in
advance and Tenant shall as expeditiously as is reasonable
under the circumstances remove such of its property as it is
required to remove under the provisions of section 12 hereof
and shall surrender the Leased Premises to Landlord who may
enter upon and repossess the same, and all further liability
Tenant and Landlord hereunder shall thereupon cease.
In the event any such damage to or destruction of
the Improvements can in the sole judgment of Landlord be
repaired within a period of five (5) months after the
happening thereof, Landlord shall repair, restore or
rebuild the Improvements with all reasonable dispatch, and
this Lease shall not be affected in any manner, except that
the liability of Tenant for rent shall be suspended for the
period during which such repair, restoration or rebuilding
is being made. However, if the damage is such as not to
render the
Improvements totally unfit for the occupancy by Tenant for
the purposes set forth in section 3 of this Lease, Landlord
shall repair the Improvements with reasonable promptness and
rentals hereunder shall xxxxx pro rata to the extent that
portions of the Leased Premises are not available for use by
Tenant. In either situation provided for in this paragraph,
Landlord shall be entitled to receive and retain all
insurance proceeds resulting from such damage or destruction.
(3)
Notwithstanding the foregoing provisions of this
section 15, if the Improvements shall be destroyed or in the
judgment of Landlord substantially damaged by insured
casualty during the last three years of the term of this
Lease, Landlord may within 30 days after the occurrence of
such damage or destruction, cancel and terminate this Lease
by giving written notice to Tenant, and if such notice is
given, this Lease shall expire as of the date of such
destruction with the same effect as though that date was the
date of the expiration of the term of this Lease, rental
hereunder shall xxxxx as of the date of such damage or
destruction, Landlord shall be entitled to retain all
insurance proceeds resulting from such damage or destruction.
Landlord shall refund to Tenant any unearned rent paid in
advance, and Tenant shall as expeditiously as is reasonable
under the circumstances remove such of its property as it is
required to remove under the provisions of section 12 hereof
and shall surrender the Leased Premises to Landlord who may
enter upon and repossess the same, and all further liability
Tenant and Landlord hereunder shall thereupon cease. If this
Lease is not so cancelled and terminated, the provisions of
the foregoing paragraphs of this section 15 shall control.
DEFAULT AND 16. All rights and remedies of Landlord herein
REMEDIES enumerated shall be cumulative, and none shall exclude any
other rights or remedies allowed by law. Tenant covenants and
agrees that if any of the following events of default occur,
that is, if:
a. Tenant shall fail, neglect or refuse to pay any
rent or sums payable hereunder as rent at the times and in
the amount as herein provided, or to pay any other monies
agreed by it to be paid promptly when and as the same shall
become due and payable under the terms hereof, or if Tenant
shall fail to keep and maintain in full force and effect the
insurance required under section 8 of this Lease, and if any
such default should continue for a period of more than 10
days after notice thereof by Landlord to Tenant: or
b. Tenant shall abandon or vacate the Leased
Premises or commit waste thereon, or any execution be issued
against a substantial part of Tenant's assets or bankruptcy,
receivership or in solvency proceedings be instituted by or
against Tenant or an assignment made by Tenant for the
benefit of creditors, or Tenant shall fail, neglect or refuse
to keep and perform any of the other covenants, conditions,
stipulations or agreements herein contained and covenanted
and agreed to be kept and performed by it, and in the event
any such failure, neglect or refusal shall continue for a
period of more than 30 days after notice thereof is given in
writing to Tenant by Landlord, provided, however, that if the
cause for giving such notice involves the making of repairs
or other matters reasonably requiring a longer period of time
than the period of such notice. Tenant shall be deemed to
have complied with such notice so long as it has commenced to
comply with said notice within the period set forth in the
notice and is diligently prosecuting compliance of said
notice or has taken the proper steps or proceedings under the
circumstances to prevent the seizure, destruction, alteration
or other interference with said Leased Premises by reason of
non-compliance with the requirements of any law or ordinance
or with the rules, regulations or directions of any
governmental authority, as the case may be,
then the entire rental for the balance of the
term of this Lease shall at the option of Landlord at once
become due and payable as if by the terms of this Lease it is
payable in advance, and the Tenant does hereby authorize and
fully empower Landlord to cancel or annul this Lease at once
and to re-enter and take possession of the Leased Premises
immediately, without any previous notice of intention to
re-enter, and to remove all persons and their property
therefrom, and to use such assists in effecting and
perfecting such removal of Tenant as may be necessary and
advisable to recover at once first and exclusive possession
of the Leased Premises, without being deemed guilty of any
manner of trespass and without prejudice to any remedies
which might otherwise be used by Landlord, in which event
this Lease shall terminate and Tenant shall indemnify
Landlord against all unavoidable loss of rent which Landlord
may incur by reason of such termination during the residue of
the term of this Lease.
Landlord may, however, at its option at any time and
after such default or violation of condition or covenant,
re-enter and take possession of the Leased Premises without
such re-entry working a forfeiture of the rents to be paid
and the covenants, agreements and conditions to be kept and
performed by Tenant for the term of this Lease. In such event
Landlord shall have the right, but not the obligation, to
divide or subdivide the Leased Premises in any manner
Landlord may determine and to lease or let the same or
portions hereof for such periods of time and at such rentals
and for such use and upon such covenants and conditions as
Landlord may elect, applying the net rentals from such
letting first to the payment of Landlord's expenses incurred
in dispossessing Tenant and the cost and expense of making
such improvements in the Leased Premises as may be necessary
in order to enable Landlord to re-let the same, and to the
payment of any brokerage commissions or other necessary
expenses of Landlord in connection with such re-letting. The
balance, if any, shall be applied by Landlord from time to
time on account of the payments due or payable by Tenant
hereunder, with the right reserved to Landlord to bring such
action or proceedings for the recovery of any deficits
remaining unpaid as Landlord may deem desirable from time to
time, without being obligated to await the end of the Term
for the final determination of Tenant's account. Any balance
remaining, however, after full payment and liquidation of
Landlord's account as aforesaid shall be paid to Tenant, with
the right reserved to Landlord at any time to give notice in
writing to Tenant of Landlord's election to cancel and
terminate this Lease and the simultaneous payment by Landlord
to Tenant of any credit balance in Tenant's favor that may at
the time be owing to Tenant shall constitute final and
effective cancellation and termination of the Lease and the
obligation hereunder on the part of either party to the
other.
CONFESSION OF 17. For value received and forthwith on every default
JUDGMENT hereunder or on any and every breach of covenant herein.
Tenant hereby empowers any attorney of any court of record
within the United States or elsewhere to appear for Tenant
and with or without declaration filed, confess judgment or a
series of judgments against Tenant and in favor of Landlord,
its successors or assigns of any term in ejectment and/or for
the full sum due by reason of any default hereunder,
including unpaid rent for the balance of the term of this
Lease together with costs of suit and attorney's commission
of $200 for collection. Tenant further authorizes the
issuance of such possessory writs or writs of execution as
Landlord may elect upon any such judgement or judgments, with
release of all errors and without stay of execution and
inquisition, and extension upon any levy of real estate is
hereby waived and condemnation agreed to and the exemption of
any and all property from levy or sale by virtue of any law
now in force or hereinafter enacted is also expressly waived.
HOLD OVER 18. If Tenant with the prior written consent of
Landlord, shall remain in possession of the Leased Premises
after the expiration of the term of this Lease, then Tenant
shall be deemed a tenant of the Leased Premises from month to
month at the same rental and subject to all of the terms and
provisions hereof, except only as to the term of this Lease.
QUIET ENJOY- 19. If Tenant pays rental and other charges herein
MENT provided and shall perform all of the covenants and
agreements herein stipulated to be performed on the Tenant's
part. Tenant shall, at all times during the term of this
Lease, have the peaceable and quiet enjoyment and possession
of the Leased Premises without any manner of hindrance from
Landlord or any persons lawfully claiming through Landlord,
except as to any portion of the Leased Premises as may be
taken under the power of eminent domain.
NOTICES 20. All notices, demands and requests which may be or
are required to be given hereunder shall be given in writing
and shall be deemed to have been duly given as of the date of
mailing if sent by postage prepaid, first class. United
States registered or certified mail, return receipt
requested, to each of the parties at the following places, or
to such other places as either party hereto may for itself
designate in writing from time to time for the purpose of
receiving notices hereunder:
X X Food Service, Inc.
THE BUNCHER COMPANY -------------------------------
c/o Buncher Management Agency, Inc. P. O. Box 99900
------------------------------------- -------------------------------
0000 Xxxxxxx Xxxxxx/X. X. Xxx 00000 Xxxxxxxxxx, XX 00000-0000
------------------------------------- -------------------------------
Xxxxxxxxxx, XX 00000-0000
------------------------------------- -------------------------------
MARGINAL 21. Marginal notes used herein are for the purpose of
NOTES convenience only and shall not be used in construing this
Lease.
ENTIRE 22. This Lease constitutes and contains the entire and only
AGREEMENT agreement between the parties, and supersedes and cancels any
and all pre-existing agreements and understandings between the
parties, relating to the subject matter hereof. No
representation inducement, promise, condition or warranty not
set forth herein has been made or relied upon by either party.
SUBORDINATION 23. This Lease is subject and subordinate to all ground or
underlying leases and to all mortgages which may now or
hereafter affect the Leased Premises, and to all renewals,
modifications, consolidations, replacements and extensions
thereof. This clause shall be self-operative and no further
instrument of subordination shall be required; however, in
confirmation of such subordination Tenant shall execute
promptly any certificate to that effect upon request by
Landlord. Tenant hereby constitutes and appoints Landlord as
Tenant's attorney-in-fact to execute any such certificate or
certificates for and on behalf of Tenant.
LIMITATION OF 24. Notwithstanding the provisions hereof, the term "Landlord"
LANDLORD as used in this Lease means only the holder, for the time
being, of Landlord's interest under this Lease so that in the
event of any transfer of title to the Leased Premises to a
party assuming Landlord's obligations hereunder Landlord shall
be and hereby is entirely freed and relieved of all obligations
of Landlord hereunder accruing after such transfer, and it
shall be deemed without further agreement between the parties
that such grantee, transferee or assignee has assumed and
agreed to observe and perform all obligations of Landlord
hereunder arising during the period it is the holder of
Landlord's interest hereunder.
FORCE 25. Landlord shall not be liable to Tenant and shall not be in
MAJEURE default under this Lease in any manner by reason of delay in
performance of any covenant or condition in this Lease, if any
such delay is caused by present or future governmental
regulations, restrictions, strikes, lockouts, unusual
unavailability of materials or labor, severe adverse weather
conditions, or by any other reason or reasons, whether similar
or not to foregoing, which delays are beyond the reasonable
control of Landlord, provided that Landlord shall use
Landlord's best efforts to overcome the same.
ATTACHMENTS 26. Attached to this Lease and made a part hereof, and
initialed on behalf of both parties simultaneously with the
execution of this Lease, are Exhibits A through B inclusive,
and Rider pages 1 through 16 inclusive.
GOVERNING 27. This Lease shall be construed, governed and enforced in
LAW accordance with the laws of the Commonwealth of Pennsylvania.
SEPARABILITY 28. If any term or provision of this Lease, or the application
thereof to any party or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to parties or
circumstances other than those as to which it is invalid or
unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
CUMULATIVE 29. The specified remedies to which Landlord or Tenant may
REMEDIES resort under the terms of this Lease are cumulative and are not
intended to be exclusive of any other remedies or means or
redress to which Landlord or Tenant may be lawfully entitled in
case of any breach by Landlord or Tenant of any provision of
this Lease. Failure of Landlord or Tenant to insist in any one
or more cases upon the strict performance of any of the
covenants of this Lease shall not be construed as a waiver or a
relinquishment for the future of such covenant. A receipt by
Landlord of rent with knowledge of the breach of any covenant
hereof shall not be deemed a waiver of such breach, and no
waiver by Landlord or any provision of this Lease shall be
deemed to have been made unless expressed in writing and signed
by Landlord. In addition to the other remedies in this Lease
provided, Landlord or Tenant shall be entitled to the restraint
by injunction of the violation, or attempted or threatened
violation, of any of the covenants, conditions or provisions
of this Lease. Nothing in this Lease shall give either party
the right to terminate this Lease except as otherwise
specifically set forth in this Lease.
AMENDMENTS 30. This Lease may be amended, modified, renewed, extended,
cancelled or terminated only by a written instrument duly
executed by both of the parties hereto.
PROVISIONS 31. All the provisions of this Lease, insofar as they are
CONSTRUED AS applicable to either or both of the parties hereto, shall be
COVENANTS taken and construed as the covenant or covenants of such party
or parties respectively to do or perform the thing or act
specified or not to do the act or thing inhibited.
BINDING 32. The provisions of this Lease shall be binding upon and
EFFECT shall inure to the benefit of the parties hereto and their
respective successors and assigns: subject, nevertheless, to
the restrictions on assignment by Tenant as set forth in
section 6 hereof and to the provisions of section 24 hereof.
RESERVATIONS 33. Landlord reserves for itself and all tenants, the use of
ROADS AND access roads and of utilities, and the right to make additional
UTILITIES connections, as Landlord may deem necessary, without
unreasonable interference with the operations of Tenant.
34. Acceptance of possession of the Leased Premises or opening
the same for business shall be conclusive evidence that the
Leased Premises are and were in good order and condition on the
Commencement Date.
35. Tenant shall have the non-exclusive right to the use of
the driveway area shaded in yellow on Exhibit A attached hereto
which driveway may be used in common with Landlord, Tenant and
other tenants and their employees, invitees and business
visitors for pedestrian and vehicular traffic.
This Lease is made by virtue and in pursuance of a resolution
of the Board of Directors of Tenant, adopted at a meeting
thereof duly called and held on the ____ day of
_________________, 19__, a full quorum of said Board being
present and acting throughout, authorizing and directing the
same to be made and done.
WITNESS the due execution hereof.
ATTEST: THE BUNCHER COMPANY
/s/ Xxxxxxx Xxxxxxx By /s/ X. Xxxxxxxx
---------------------------- ----------------------------
Exec. V.P. and Secretary President
[Corporate Seal]
ATTEST: X. X. FOOD SERVICE, INC.
By /s/ Xxxxxx X. Xxxxxx 9/17/98
---------------------------- ----------------------------
RIDER TO
AGREEMENT OF LEASE DATED
DECEMBER 6, 1998 BY AND BETWEEN
THE BUNCHER COMPANY, AS LANDLORD, AND
X X FOOD SERVICE, INC., AS TENANT
This Rider is attached to and made a part of the Agreement of Lease
referred to above. To the extent any inconsistencies exist between the
provisions of this Rider and the foregoing printed portions of the Agreement of
Lease referred to above, the provisions of this Rider shall govern. All terms
defined in the foregoing printed provisions of the Agreement of Lease shall have
the same meaning herein as in the foregoing printed provisions unless otherwise
set forth herein. The term "this Lease" shall mean the foregoing printed
provisions as modified, amended and/or supplemented by this Rider.
1. COMPLETION: (A). Landlord shall use Landlord's best efforts to
substantially complete, at Landlord's cost and expense, the tenant improvements
described on Exhibit B attached hereto and made a part hereof (the "Tenant
Improvements") prior to the Commencement Date. If the Tenant Improvements are
not so completed, this Lease shall remain in full force and effect except that
rental, tax, insurance and utility payments for water and sewage and other sums
due as additional rental under this Lease shall not commence until the seventh
(7th) day (hereinafter known as the "Beginning Date") after Landlord has
provided written notice to Tenant ("Letter Amendment") setting forth (i) that
the Tenant Improvements are substantially completed and the Leased Premises are
ready for occupancy, (ii) that a certificate of occupancy has been issued by New
Sewickley Township, (iii) the actual Beginning Date, the actual Commencement
Date and expiration date of the term of this Lease, and (iv) subject to
paragraph 2 of this Rider, the dates and amounts of the rental payments due
hereunder. The Letter Amendment when issued as provided herein shall be
incorporated into and made a part of this Lease. If the Beginning Date is other
than the first day of a month, Tenant shall pay to Landlord as rental the sum
of $649.42 for each day from the Beginning Date to the first day of the month
following the Beginning Date, and the initial term shall run for a full sixty-
two (62) months from the first day of the month following the Beginning Date so
as to end on the last day of the sixty-second (62nd) full month after the
Beginning Date.
(B). If the Tenant Improvements are substantially completed more than
seven (7) days prior to the scheduled Commencement Date, the Beginning Date
shall be the seventh (7th) day after Tenant has been notified that the Tenant
Improvements are so completed and there shall be no change in the Commencement
Date or the expiration date as set forth in the printed portion of this Lease.
Tenant shall pay to Landlord as rental for the Leased Premises the sum of
$649.42 for each day from the Beginning Date to the Commencement Date.
All terms and conditions of this Lease shall be effective from the
Beginning Date as though the term of this Lease had commenced on the
Beginning Date except that the expiration date of the initial term shall
be as provided above in this paragraph.
2. RENTAL: Tenant shall pay to Landlord as rental for the Leased
Premises the following amounts at the following times:
A. On the first day of the first full calendar month of the
initial term of this Lease following the Beginning Date, if
applicable, Tenant shall pay to Landlord as rental for the
Leased Premises the per diem rental, if any, as set forth in
paragraphs 1 (A) or 1 (B) of this Rider.
B. Except for the payment of Tenant's pro rata share of real
estate taxes, insurance premiums, utility charges for water and
sewage and other sums due as additional rental, the first and
second full months of the term of this Lease shall be rent
free.
C. Beginning on May 1, 1999, or on the first day of the third
(3rd) full calendar month of the initial term of this Lease
(i.e., the third (3rd) full calendar month following the
Beginning Date), if applicable, and on the first day of each
calendar month thereafter until the first day of the
twenty-seventh (27th) full calendar month of the initial term
of this Lease, Tenant shall pay to Landlord as monthly rental
for the Leased Premises the amount of $19,753.17.
D. Beginning on the first day of the twenty-seventh (27th) full
calendar month of the initial term of this Lease and on the
first day of each calendar month thereafter until the first day
of the thirty-ninth (39th) full calendar month of the initial
term of this Lease, Tenant shall pay to Landlord as monthly
rental for the Leased Premises the amount of $20,826.71.
E. Beginning on the first day of the thirty-ninth (39th) full
calendar month of the initial term of this lease and on the
first day of each calendar month thereafter during the
remaining balance of the initial term, Tenant shall pay to
Landlord as monthly rental for the Leased premises the amount
of $21,900.25.
The rentals under paragraphs 2 C, D and E above shall be payable in
advance, without demand, deduction or set off. All rentals and other sums
payable hereunder shall be paid to Landlord's agent, Buncher Management
Agency, Inc., 5600 Forward
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Avenue, P. X. Xxx #00000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 or at such other
place or to such other person as may be designated by Landlord in writing.
3. MAINTENANCE AND REPAIR: During the term of this Lease, Tenant, at its
sole cost and expense, shall procure a satisfactory maintenance contract with
an authorized service company for the HVAC equipment serving the Leased
Premises and keep records of service to the HVAC system for Landlord's review.
Landlord will assign to Tenant at the commencement of the term of this
Lease, the benefits of all assignable manufacturer's warranties, if any,
covering the equipment serving the Leased Premises and will grant to Tenant a
one (1) year warranty of the workmanship and materials for work in the Leased
Premises performed by Landlord from any defects unless caused by lack of
maintenance by Tenant or any act or negligence of Tenant or those acting under
Tenant.
Tenant understands and acknowledges that the Leased Premises is a part of
a commerce park being developed by Landlord. Landlord reserves the right to
institute reasonable rules and regulations governing the maintenance of the
Leased Premises and the commerce park which Tenant agrees to observe.
In addition to Tenant's obligation for maintenance and repair of the
Leased Premises as set forth in the first paragraph of section 4 of the printed
portion of this Lease, Tenant shall, at Tenant's sole cost and expense, comply
with all governmental laws and regulations, including but not limited to local,
state, federal administrative requirements and regulations, relating to
Tenant's use and occupancy of the Leased Premises and the business conducted
therein and thereon including without limitations compliance with laws relating
to accessibility to, usability by and discrimination against disabled
individuals.
4. INSURANCE: Tenant and Landlord agree that the Leased Premises is a
portion of Landlord's building (the "Building"), more particularly shown on
Exhibit A attached hereto.
Landlord shall maintain fire and extended coverage insurance on the
Building for its replacement value in such amounts as Landlord may from time to
time reasonably determine. Within ten (10) days after Landlord provides to
Tenant supporting documentation of the reasonable cost of insuring the Building,
Tenant will pay to Landlord as additional rental hereunder, Tenant's pro rata
share of the insurance premium paid or payable by Landlord for so insuring the
Building. Tenant's pro rata share of such insurance premium shall be based on
the number of square feet of space in the Building portion of the Leased
Premises to the number of square feet of space in the Building as the same may
exist from time to time. As currently calculated, Tenant's pro
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rata share is determined as follows: i.e., 51,530 square feet divided by 113,082
square feet or 45.60%. In addition, Tenant shall be liable for any increase in
such insurance premiums resulting from Tenant's use of the Leased Premises.
Tenant shall be responsible for insuring against any loss to Tenant's own
fixtures and contents in or about the Leased Premises. If the Leased Premises is
damaged as a result of an insured risk, Tenant shall be responsible for its
proportionate share of the deductible portion of Landlord's insurance coverage
which deductible is currently $1,000.00.
In addition to the insurance requirements set forth in section 8 of the
printed portion of this Lease, Tenant shall maintain during the term of this
Lease or any extension thereof worker's compensation and employer's liability
insurance at the statutory limits on its employees at the Leased Premises and
shall indemnify and hold harmless Landlord from and against any and all expenses
connected with claims made by Tenant's employees for injuries incurred at the
Leased Premises.
5. TAXES: The parties hereto acknowledge that the assessment for real
estate taxes for the Leased Premises is included in the assessment for all
buildings and the entire land area (collectively hereinafter called the
"Property") of which the Leased Premises is a part. The Property is more
particularly identified on the tax records as Parcel Number 69-165-0155-000.
Tenant shall pay to Landlord its allocated share of the real estate taxes
on the Property as the same shall be determined by Landlord from time to time
during the term of the Lease. Landlord shall provide Tenant at the time of
invoice, supporting documentation of Tenant's allocable share of the real estate
taxes.
Upon the execution of this Lease by the parties hereto, Landlord shall
make application to Beaver County and to the Freedom Area School District for an
abatement of real estate taxes under the existing regulations of each named body
pursuant to the Local Economic Revitalization Tax Assistance Act. Tenant may
terminate this Lease if Landlord has not received a letter by January 1, 1999
from the solicitor or other officials of Beaver County and Freedom Area School
District notifying Landlord that the Leased Premises qualifies for the said tax
abatement; provided however, Landlord may elect, at its option to pay the amount
of real estate tax that would have abated if the abatement for the Leased
Premises has been granted. As used herein the tax abatement percentage allocable
to the Leased Premised shall be as set forth in Buncher Management Agency,
Inc.'s letter to Tenant dated June 18, 1998.
6. HAZARDOUS SUBSTANCES: Tenant shall not cause, permit or allow any
Hazardous Substance to be generated, emitted, discharged, released or disposed
of, on, in or from the Leased premises by Tenant, Tenant's agents, employees,
contractors, invitees or those
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holding under Tenant. Tenant shall comply with all Environmental Laws governing
or relating to the generation, transportation, use, storage, emission,
discharge, release, threatened release or disposal of Hazardous Substances with
respect to the use and occupancy of the Leased Premises or the condition
thereof. Without limitation of the foregoing, if Tenant causes, permits or
allows the emission, discharge, release, threatened release or disposal of any
Hazardous Substance from, on or in the Leased Premises (hereinafter called the
"Contamination") in violation of any Environmental Laws, Tenant shall promptly,
at its sole cost and expense, take any and all actions necessary to remediate
and/or remove Contamination and to comply with the Environmental Laws.
Tenant shall defend, indemnify and hold Landlord harmless from and against
all claims, damages, remedial or removal actions or obligations, fines,
judgments, liens, penalties, costs, expenses, diminished property value, lost
or diminished rental revenue, liabilities or losses of any kind asserted
against, or suffered or incurred by, Tenant and/or Landlord resulting directly
or indirectly from the presence, generation, transportation, use, storage,
emission, discharge, release, threatened release or disposal of Hazardous
Substances on, in or from the Leased Premises, provided, however, that Tenant's
indemnity hereunder shall not extend to Contamination existing on the Leased
Premises prior to the date of this Lease and for Contamination of the Leased
Premises directly attributable to or Contamination caused by Landlord or any
unrelated third party without the consent or knowledge of Tenant or under
Tenant's control. The provisions of the foregoing sentence shall survive the
termination of this Lease.
As used herein, the term "Hazardous Substance" or "Hazardous Substances",
shall mean any and all substances or materials which are defined as or listed
as "hazardous materials", "toxic substances", "hazardous air pollutants",
"toxic pollutants", "pollutants", and/or "contaminants" as those terms are
used, defined or listed under any Environmental Laws. As used herein the term
"Hazardous Substance" shall also include any petroleum product, including
gasoline, diesel fuel, motor oil and waste oil.
As used herein the term "Environmental Laws" shall mean any federal, state
or local law, statute, ordinance, rule, order, regulation, injunction, writ or
decree now or hereafter existing which governs or otherwise relates to the
generation, transportation, use, storage, emission, discharge, release,
threatened release or disposal of Hazardous Substances including, without
limitation, the Resource, Conservation and Recovery Act, the Comprehensive
Environmental Response Compensation and Liability Act, the Hazardous Materials
Transportation Act, the Toxic Substances Control Act, the Clean Air Act and the
Clean Water Act.
Landlord represents and warrants that to Landlord's best knowledge and
belief, the Leased Premises contains no Hazardous
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Substance.
7. ROLL OVER TERM: Unless Tenant notifies Landlord more than six (6)
months prior to the expiration of the initial term, that it does not desire to
extend the term of this Lease for a Roll Over Term, (as defined herein) the term
of this Lease will automatically extend for an additional term of five (5) years
(the "Roll Over Term"). The Roll Over Term shall be on the same terms and
conditions set forth in this Lease except that the monthly rental for the Roll
Over Term shall be determined pursuant to the following formulas:
Monthly rental for the Roll Over Term shall equal $20,826.71 times a
fraction the numerator of which is the CPI in effect on February 1, 1999
plus 75% of the amount by which the CPI in effect on the expiration of the
initial term exceeds the CPI for February 1, 1999 and the denominator of
which is the CPI for February 1, 1999.
Notwithstanding the result of the above calculation, the monthly rental
for the Roll over Term shall not be less than $21,900.25.
The CPI, as referred to herein, means the Consumer Price Index for all
Urban Consumers 1993-95=100 relating to the United States City Average for All
Items, as issued by the Bureau of Labor Statistics of the United States
Department of Labor, or any successor to the function thereof. In the event of
the conversion of the CPI to a different standard reference base or any other
revision thereof, the determination hereunder shall be made with the use of such
Bureau of Labor Statistics or successor to the functions thereof or in the
absence of the publication of such conversion factor, such formula or table as
the parties shall mutually designate.
Notwithstanding the above, if PJ Food Service Inc., itself is not in full
possession of the Leased Premises at the commencement of the Roll Over Term,
Landlord may, at its option, terminate this Lease as of the last day of the
initial term.
8. BROKERAGE: Except as provided below, Landlord and Tenant each hereby
warrants to the other that no real estate broker has been involved in this
transaction on its behalf and that no finder's fees or real estate commissions
have been earned by any third party. Tenant agrees to indemnify Landlord and
Landlord hereby agrees to indemnify Tenant for any liability or claims for
commissions or fees arising from a breach of this warranty. The only real estate
broker involved in this transaction is Oxford Realty Services, Inc. whose
commissions or fees with respect to the this transaction, shall be paid by
Landlord in accordance with that certain letter dated September 23, 1998.
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9. PARKING: Tenant shall have the exclusive right to the use of
the parking areas located within the Leased Premises as shown outlined
in red on Exhibit A attached hereto. Tenant shall have the non-
exclusive right to such additional parking, if available as determined
by Landlord, in the Common Area Parking, as defined herein and shown
shaded in orange on Exhibit A attached hereto, located on the
Property.
10. COMMON AREA MAINTENANCE: A. Landlord shall, at its sole cost
and expense (i) maintain in reasonably good condition and repair, when
necessary as determined by Landlord, the driveway shown shaded in
yellow on Exhibit A and the parking lots shown shaded in orange on
Exhibit A (the "Common Area Parking") attached hereto (ii) snow plow
and/or salt the aforementioned driveways and Common Area Parking when
necessary as determined by Landlord and (iii) maintain the landscape
areas located within the Property, within Tenant's Leased Premises and
in the leased premises of other tenants in the Building. The driveway,
the Common Area Parking and the landscape areas are collectively
hereinafter called the "Common Areas".
Tenant shall pay to Landlord a monthly charge (the "CAM Charge"),
as reasonably determined from time to time by Landlord, being Tenant's
allocable share of the Common Area Expense, as hereinafter defined. As
used herein, "Common Area Expenses" shall mean all reasonable costs
and expenses incurred by Landlord of whatever nature for maintaining
the Common Area including but not limited to a reasonable reserve for
the replacement of the asphalt surfaces of the Common Areas. All
capital repairs and replacements shall be amortized in accordance with
GAAP and as so amortized shall be considered a Common Area Expense.
Beginning on the Commencement Date, Tenant shall pay to Landlord,
as additional rental, a CAM Charge of $644.13 per month (said amount
being Landlord's estimate of the monthly Common Area Expenses
allocable to Tenant for the year 1999). The CAM Charge shall be
subject to adjustment at the end of each calendar year during the term
of the Lease based upon the actual Common Area Expenses incurred by
Landlord during the previous calendar year and an estimate of Common
Area Expenses for the ensuing calendar year.
Landlord shall provide Tenant within sixty (60) days after each
calendar year proper documentation to support said CAM Charge and the
Common Area Expenses.
B. ADJUSTMENT MECHANISM: During each calendar year following the
first calendar year, but no later than sixty (60) days following each
calendar year, Landlord shall submit a statement supported by
reasonable documentation setting forth the amount of the Common Area
Expenses and Tenant's allocable share of the Common Area Expenses and
the difference if any between the amount actually owed by Tenant and
the amount actually paid by Tenant in accordance
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with this paragraph 10. Landlord agrees to keep books and records documenting
Common Area Expenses. Tenant shall have the right for a period of one (1) year
after Landlord has submitted said statements, at Tenant's cost, to inspect
Landlord's statement of Common Area Expenses after reasonable notice during
normal operating hours. If Tenant owes Landlord the difference, Tenant shall
pay the difference as additional rental within thirty (30) days of billing by
Landlord. If Landlord owes Tenant the difference, Landlord shall pay Tenant the
difference. Tenant's covenant to pay Tenant's allocable share of the Common
Area Expenses for the term of this Lease or any extension thereof shall survive
the expiration or early termination of this Lease.
11. CONDITION PRECEDENT: A. As a condition precedent to the effectiveness
of this Lease, Tenant shall at or prior to the execution and delivery of this
Lease to Landlord by Tenant, deliver to Landlord an irrevocable and
unconditional Letter of Credit from a financial institution acceptable to
Landlord in the amount of $150,000 as security for Tenant's obligations under
this Lease. Provided Tenant is not in default under this Lease, the amount of
the Letter of Credit may be reduced by $50,000 on each anniversary date of the
term of this Lease. Landlord shall have the right to draw upon said Letter of
Credit to cover any default in the payment of monthly rental or additional
rental due Landlord under this Lease.
WITNESS the due execution hereof as of the date of the foregoing Agreement
of Lease.
ATTEST: THE BUNCHER COMPANY
Xxxxxxx Xxxxxxx X. Xxxxxxxx
------------------------------- ------------------------------
Exec. V.P. and Secretary President
(Corporate Seal)
ATTEST: X X FOOD SERVICE, INC.
Xxxxxx X. Xxxxxx 9-17-98
------------------------------- ------------------------------
(Corporate Seal)
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