Exhibit 10.10
SUBLEASE
between
FOREMOST MGMT., INC.
SUBLESSOR
and
LUIGINO'S, INC.
SUBLESSEE
DATED
as of
September 21, 1993
INDEX
THIS INDEX IS NOT A PART OF THIS LEASE AND IS ONLY FOR CONVENIENCE OF REFERENCE.
Page
ARTICLE I. -- DEFINITIONS................................................. 2
Section 1.1. USE OF DEFINED TERMS...................................... 2
Section 1.2 DEFINITIONS............................................... 2
Section 1.3. CERTAIN REFERENCES........................................ 5
ARTICLE II. -- LEASE OF PROJECT; CONSTRUCTION AND EQUIPPING............... 5
Section 2.1. SUBLEASE TERM AND POSSESSION.............................. 5
Section 2.2. IMPROVEMENT AND EQUIPPING................................. 5
Section 2.3. PLANS AND SPECIFICATIONS.................................. 5
Section 2.4. COMPLETION DATE........................................... 6
Section 2.5. REMEDIES AGAINST CONTRACTORS, SUBCONTRACTORS AND
SURETIES.................................................. 6
Section 2.6. OWNERSHIP OF PROPERTY..................................... 6
ARTICLE III. -- RENT AND ADDITIONAL PAYMENTS.............................. 7
Section 3.1. RENT...................................................... 7
Section 3.2. ADDITIONAL PAYMENTS....................................... 7
Section 3.3. PLACE OF PAYMENTS......................................... 8
Section 3.4. OBLIGATIONS UNCONDITIONAL................................. 8
Section 3.5. PAST DUE RENT AND ADDITIONAL PAYMENTS..................... 8
ARTICLE IV. -- MAINTENANCE AND USE OF PROJECT............................. 8
Section 4.1. COMPLIANCE WITH LEGAL AND INSURANCE
REQUIREMENTS.............................................. 8
Section 4.2. MAINTENANCE AND USE OF PROJECT SITE AND PROJECT
FACILITIES................................................ 9
Section 4.3. ADDITIONS, MODIFICATIONS AND IMPROVEMENTS................. 9
Section 4.4. SUBSTITUTIONS AND REMOVALS................................ 9
Section 4.5. INDEMNIFICATION........................................... 9
ARTICLE V. -- TAXES, MECHANICS' LIENS AND INSURANCE....................... 10
Section 5.1. PAYMENT OF TAXES, AND OTHER GOVERNMENTAL
CHARGES................................................... 10
Section 5.2. MECHANICS' AND OTHER LIENS................................ 11
Section 5.3. INSURANCE................................................. 11
Section 5.4. WORKERS' COMPENSATION COVERAGE............................ 12
Section 5.5. PAYMENT BY SUBLESSOR OR DIRECTOR.......................... 12
ARTICLE VI. -- DAMAGE, DESTRUCTION AND CONDEMNATION....................... 12
Section 6.1. DAMAGE TO OR DESTRUCTION OF PROJECT FACILITIES............ 12
Section 6.2. USE OF INSURANCE PROCEEDS................................. 13
Section 6.3. EMINENT DOMAIN............................................ 13
Section 6.4. PROCEEDS RELATING TO PROJECT EQUIPMENT.................... 13
ARTICLE VII. -- FURTHER REPRESENTATIONS AND AGREEMENTS RESPECTING
THE PROJECT AND THE SUBLESSEE............................. 13
Section 7.1. REPRESENTATIONS OF THE SUBLESSEE.......................... 13
Section 7.2. DOCUMENTS TO BE PROVIDED.................................. 14
Section 7.3. RIGHT OF INSPECTION....................................... 14
Section 7.4. ASSIGNMENT AND SUBLEASING................................. 15
Section 7.5. SUBLESSEE TO MAINTAIN ITS EXISTENCE; SALE OF ASSETS OR
MERGERS................................................... 15
Section 7.8. BOOKS AND RECORDS; FINANCIAL STATEMENTS................... 15
Section 7.7. TITLE OF PROJECT SITE..................................... 16
Section 7.8. NO WARRANTY OF CONDITION OR SUITABILITY................... 17
ARTICLE VIII. -- EVENTS OF DEFAULT AND REMEDIES........................... 17
Section 8.1. EVENTS OF DEFAULT......................................... 17
Section 8.2. REMEDIES ON DEFAULT....................................... 18
Section 8.3. NO REMEDY EXCLUSIVE....................................... 19
Section 8.4. AGREEMENT TO PAY FEES AND EXPENSES........................ 20
Section 8.5. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER................ 20
Section 8.6. NOTICE OF DEFAULT......................................... 20
ARTICLE IX -- MISCELLANEOUS............................................... 20
Section 9.1. OTHER PROVISIONS.......................................... 20
Section 9.2. QUIET ENJOYMENT........................................... 21
Section 9.3. SURRENDER OF PROJECT...................................... 21
Section 9.4. NOTICES................................................... 21
Section 9.9. CAPTIONS.................................................. 21
Section 9.10. GOVERNING LAW............................................. 21
ASSIGNMENT OF SUBLEASE
ACKNOWLEDGMENT AND CONSENT TO ASSIGNMENT
SUBLEASE
THIS SUBLEASE made and entered into effective as of September 21, 1993,
between FOREMOST MGMT., INC. a Ohio corporation, as SUBLESSOR (the "SUBLESSOR")
and LUIGINO'S, INC., a Minnesota corporation, as SUBLESSEE (the "SUBLESSEE"),
under the circumstances summarized in the following recitals (the capitalized
terms not defined in the recitals being used therein as defined in ARTICLE I.
hereof):
A. Pursuant to the ACT and the AGREEMENT, the DIRECTOR will acquire the
PROJECT SITE and make a LOAN to the SUBLESSOR to assist in acquiring
and installing the PROJECT EQUIPMENT in a structure to be constructed
on the b and leased to the SUBLESSEE by the SUBLESSOR.
B. Upon the terms and conditions hereinafter set forth, the SUBLESSOR is
willing to Lease the PROJECT SITE and the PROJECT FACILITIES to the
SUBLESSEE and the SUBLESSEE is willing to Lease the PROJECT SITE and
the PROJECT FACILITIES from the SUBLESSOR.
C. The SUBLESSOR and the SUBLESSEE each have full right and lawful
authority to enter into this SUBLEASE and to perform and observe the
provisions hereof on their respective parts to be performed and
observed.
NOW, THEREFORE, in consideration of the promises and the mutual
representations and agreements hereinafter contained, the parties hereto agree
as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. USE OF DEFINED TERMS. In addition to the words and terms
elsewhere defined in this SUBLEASE, the words and terms set
forth in Section 1.2 hereof shall have the meanings therein
set forth unless the context or use expressly indicates
different meaning or intent. Such definitions shall be equally
applicable to both the singular and plural forms of any of the
words and terms therein defined.
Section 1.2 DEFINITIONS. As used herein:
"ACT" means Chapter 166, Ohio Revised Code, as enacted and
amended pursuant to Section 13 of ARTICLE VIII. of the Ohio
Constitution.
"ADDITIONAL PAYMENTS" means the amounts required to be paid by
the SUBLESSEE pursuant to the provisions of Section 3.2
hereof.
"BONDS" means the State of Ohio Economic Development Revenue
Bonds (Ohio Enterprise Bond Fund),"Series 1993-5 (Foremost
Mgmt, Inc. Project) (Taxable Bonds) authorized by the General
Bond Order and the Series Bond Order.
"COMPLETION DATE" means the Date of Completion of the PROJECT
to be furnished by the SUBLESSEE pursuant to Section 2.4
hereof.
"ENGINEER" means an individual or firm qualified to practice
the profession of engineering or architecture under the laws
of the State and acceptable to the SUBLESSOR and who is not a
salaried employee of the SUBLESSEE.
"EVENT OF DEFAULT" means any of the events described as an
Event of Default in Section 8.1 hereof.
"FORCE MAJEURE" means any of the causes, circumstances or
events described as constituting Force Majeure in Section 8.1
hereof.
"INDEPENDENT COUNSEL" means an attorney or a firm of attorneys
duly admitted to practice law before the highest Court of the
State and who is acceptable to the SUBLESSOR.
"INTEREST RATE FOR ADVANCES" means (a) the interest rate borne
by the BONDS, or (b) a rate which is one percent in excess of
the prime or base interest rate then charged by the Trustee
(as defined in the LEASE) in its lending capacity as a bank,
whichever is greater and lawfully chargeable.
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"LEASE" means that certain LEASE between the DIRECTOR OF
DEVELOPMENT OF THE STATE OF OHIO and FOREMOST MGMT., INC.,
dated as of September 21, 1993 (OHIO ENTERPRISE BOND FUND
PROGRAM) pertaining to this PROJECT.
"SUBLEASE ASSIGNMENT" means the SUBLEASE ASSIGNMENT, of even
date herewith, between the SUBLESSOR, the SUBLESSEE and the
DIRECTOR, as from time to time amended or supplemented.
"SUBLEASE TERM" means the period commencing on September 21,
1993, and, unless earlier terminated as herein provided,
ending at the end of fifteen (15) years after the SUBLEASE
PAYMENT COMMENCEMENT DATE.
"SUBLEASE PAYMENT COMMENCEMENT DATE" means June 1, 1994.
"NET PROCEEDS", when used with respect to any insurance
proceeds or condemnation award, means the gross proceeds
thereof less the payment of all expenses, including attorneys'
fees incurred in connection with the collection of such gross
proceeds.
"NOTICE ADDRESS" means:
(a) As to the SUBLESSEE: 000 Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: President
(b) As to the SUBLESSOR: X.X. Xxx 000
000 Xxxx Xxxxxx
Xxxxxxx, Xxxx 00000
Attention: Xxx X. Xxxxxxxxxxxx
(c) As to the DIRECTOR: Department of Development
X.X. Xxx 00000
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000-0000
Attention: Xxxxx Xxxxxxx
or such different Address Notice which is given under Section
9.4 hereof.
"PLANS AND SPECIFICATIONS" means the plans and specifications
describing the improvements to be made to the PROJECT
FACILITIES and the PROJECT EQUIPMENT, as now prepared and as
such may be changed from time to time as provided in Section
2.3 hereof.
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"PROJECT" means the PROJECT SITE, the PROJECT FACILITIES and
the PROJECT EQUIPMENT, together constituting a "PROJECT" as
defined in the ACT.
"PROJECT EQUIPMENT" means the trade fixtures, machinery,
apparatus, furniture, equipment and other personal property
located in or upon, or based at, the PROJECT SITE to be
installed or owned by the SUBLESSOR.
"PROJECT FACILITIES" means all buildings, structures,
additions, improvements, facilities, fixtures, fittings,
machinery, apparatus, installations, furniture, equipment and
other property, now or hereafter located in, upon or under, or
based at, the PROJECT SITE and owned by the SUBLESSOR and the
PROJECT SITE, including the facilities described in EXHIBIT A,
together with any and all additions, modifications and
substitutions thereto.
"PROJECT PURPOSES" means the acquisition of land and the
construction thereon of a facility measuring 149,920 square
feet in that facility to be used for a food processing center,
raw material storage and finished product storage for frozen
food processing.
"PROJECT SITE" means the Real Estate described in EXHIBIT B
attached hereto.
"RENT" means the rent payable pursuant to Section 3.1 hereof.
"REQUIRED PROPERTY INSURANCE COVERAGE" means insurance
insuring the PROJECT FACILITIES against loss or damage by
fire, lightning, vandalism and malicious mischief and all
other perils covered by standard "extended coverage" or "all
risks" Policies, and during the construction period only shall
include Builder's Risk insurance, excluding Workers
Compensation Insurance and Contractors Liability Insurance.
"REQUIRED PUBLIC LIABILITY INSURANCE COVERAGE" means
Comprehensive General Accident and Public Liability Insurance.
"STATE" means the State of Ohio.
"SUBLEASE" means this SUBLEASE as from time to time amended or
supplemented.
"SUBLEASE ASSIGNMENT" means the Assignment of Sublease by
Foremost Mgmt., Inc. (Assignor) to the Director of Development
of the State of Ohio (Assignee), dated September 21, 1993.
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Section 1.3. CERTAIN REFERENCES. The terms "hereof", "hereby", "herein",
"hereto", "hereunder" and similar terms, mean this SUBLEASE.
The term "hereafter" means after, and the term "heretofore"
means before the Date of Delivery of this SUBLEASE. Words of
the masculine gender include the feminine and the neuter, and
when the sense so indicates, words of the neuter gender may
refer to any gender.
ARTICLE II.
LEASE OF PROJECT; CONSTRUCTION AND EQUIPPING
Section 2.1. SUBLEASE TERM AND POSSESSION. Upon and subject to the
provisions herein set forth, the SUBLESSOR does hereby Lease
to the SUBLESSEE, and the SUBLESSEE does hereby Lease from the
SUBLESSOR, the PROJECT SITE and the PROJECT FACILITIES for the
SUBLEASE TERM. Possession of the PROJECT SITE and the PROJECT
FACILITIES shall be delivered by the SUBLESSOR and accepted by
the SUBLESSEE on the commencement of the SUBLEASE TERM.
Section 2.2. IMPROVEMENT AND EQUIPPING. Upon the execution and delivery of
this SUBLEASE, the SUBLESSOR shall, at its own expense,
promptly undertake and complete the improvement of the PROJECT
SITE and the PROJECT FACILITIES, and shall install the PROJECT
EQUIPMENT, in accordance with the PLANS AND SPECIFICATIONS and
in such a manner as to conform with all applicable zoning,
planning, building, environmental and other regulations of
governmental authorities having jurisdiction. In connection
with such work, the SUBLESSOR shall make, execute, acknowledge
and deliver any contracts, orders, receipts, writings and
instructions as may be required and in general to do all
things which may be requested or proper for such construction
and equipping, and shall pay all fees, costs and expenses
incurred in such construction and equipping. The SUBLESSOR
expressly acknowledges and agrees that all wages paid to
laborers and mechanics employed on the PROJECT, in connection
with such work, shall be paid at not less than the prevailing
wages for laborers and mechanics for the class of work called
for by the PROJECT, which wages shall be determined in
accordance with the requirements of Chapter 4115, Ohio Revised
Code, for determination of prevailing wage rates. To the
extent required byss.4115.032, Ohio Revised Code, the
SUBLESSOR shall comply, and shall require compliance by all
contractors or subcontractors working on the PROJECT, with all
applicable requirements of ss.4115.03 through 4115.16, Ohio
Revised Code.
Section 2.3. PLANS AND SPECIFICATIONS. The Plans and Specifications
are at the date hereof on file with the SUBLESSOR and
SUBLESSEE but may be changed from time to time by the
SUBLESSEE provided that the Plans and Specifications shall not
be changed to such an extent that the PROJECT PURPOSES are
such as are not permitted under the ACT.
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Section 2.4. COMPLETION DATE. Completion of the improvement and equipping
of the PROJECT shall be evidenced to the DIRECTOR and the
SUBLESSOR by a Certificate signed by an authorized Officer of
the SUBLESSEE stating that such work has been:
(i) substantially completed in accordance with the PLANS
AND SPECIFICATIONS and all costs then due and payable
in connection therewith have been paid,
(ii) accomplished in such a manner as to conform with all
applicable zoning, planning, building, environmental
and other regulations of all governmental authorities
having jurisdiction; and,
(iii) accomplished to its satisfaction so as to permit the
use and operation of the PROJECT for the PROJECT
PURPOSES.
The Certificate shall also specify the date by which the
foregoing three (3) events occurred. Notwithstanding the
foregoing, such Certificate shall state that it is given
without prejudice to any rights against third parties which
then exist or may subsequently come into being.
Section 2.5. REMEDIES AGAINST CONTRACTORS, SUBCONTRACTORS AND
SURETIES. In the event of Default of any contractor or
subcontractor under any Contract made by it in connection with
the work described in Section 2.2. hereof, or in the event of
a Breach of Warranty with respect to any materials,
workmanship, or performance guaranty, the SUBLESSOR will
promptly inform SUBLESSEE of the steps it intends to take in
connection with any such Default, either separately or in
conjunction with others, against the contractor or
subcontractor so in Default and against each such surety for
the performance of such Contract. If the SUBLESSEE shall so
inform SUBLESSOR, the SUBLESSEE may, in its own name or, to
the extent lawful, in the name of SUBLESSOR, prosecute or
defend any action or proceeding or take any other action
involving any such contract, subcontractor or surety that the
SUBLESSEE deems reasonably necessary, and in such event
SUBLESSOR hereby agrees to cooperate fully with the SUBLESSEE
and to take all action necessary to effect the substitution of
the SUBLESSEE for SUBLESSOR in any such action or proceeding.
Section 2.6. OWNERSHIP OF PROPERTY. All improvements, modifications
and additions to the PROJECT SITE and the PROJECT FACILITIES
made by the SUBLESSOR shall be and remain the property of the
SUBLESSOR in which SUBLESSEE shall have no interest. All
equipment, and all other personal property and equipment
(including such property which when installed becomes a
fixture) owned or installed by SUBLESSEE in or upon the
PROJECT SITE shall be and remain the property
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of the SUBLESSEE in which the SUBLESSOR shall have no interest
and which shall not be subject to any Lien of MORTGAGE or the
SUBLEASE ASSIGNMENT. The equipment, and such other personal
property and equipment may be purchased by the SUBLESSEE on
Conditional Sale, Installment Purchase or Lease Sale Contract,
or subject to Vendor's Lien or Security Agreement, as security
for the unpaid portion of the purchase price thereof. However,
no such Lien or Security Interest shall attach to any part of
the PROJECT SITE or the PROJECT FACILITIES. The SUBLESSEE
shall pay as due the Purchase Price of, and all costs and
expenses with respect to, the acquisition and installation of
this equipment and any such other personal property and
equipment installed by it pursuant to this Section. The
SUBLESSEE may, at its expense and in its discretion, remove
from the PROJECT SITE and the PROJECT FACILITIES items of
equipment and other personal property and equipment installed
by ft pursuant to this Section provided that the removal of
this equipment during the term of this SUBLEASE shall not be
such as to impair the character or significance of the PROJECT
as furthering the purposes of the ACT. At the expiration or
earlier termination of this SUBLEASE, the SUBLESSEE may, and
at the request of the SUBLESSOR shall, remove all Items of
equipment and other property of the SUBLESSEE. If the removal
of SUBLESSEE'S property causes any damage to the PROJECT SITE
or the PROJECT FACILITIES, the SUBLESSEE shall promptly repair
such damage at Its expense.
ARTICLE III.
RENT AND ADDITIONAL PAYMENTS
Section 3.1. RENT.
(a) $14,940,000.00 payable in installments of $83,000.00
dollars per month starting on the SUBLEASE PAYMENT
COMMENCEMENT DATE and continuing on the same day as each and
every month thereafter for the SUBLEASE TERM.
Section 3.2. ADDITIONAL PAYMENTS. The SUBLESSEE shall pay to the SUBLESSOR
and the DIRECTOR as Additional Payments hereunder, any and all
reasonable and necessary costs and expenses incurred or paid
by the DIRECTOR or by the SUBLESSOR in connection with or
otherwise related to actions taken by the DIRECTOR or the
SUBLESSOR under the SUBLEASE ASSIGNMENT or this SUBLEASE. All
such Additional Payments shall be payable upon WRITTEN DEMAND
therefor, and if not paid, shall theretofore bear interest at
the INTEREST RATE FOR ADVANCES. Costs and expenses of the
DIRECTOR or the SUBLESSOR, for purposes of this Section 32
shall mean and include actual, out-of- pocket costs and
expenses and shall not include overhead or other
administrative expenses.
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Section 3.3. PLACE OF PAYMENTS. The SUBLESSEE shall pay all Rent directly
to the SUBLESSOR notwithstanding the SUBLEASE ASSIGNMENT.
Additional Payments shall be made directly to the person or
entity to whom or to which they are due.
Section 3.4. OBLIGATIONS UNCONDITIONAL. The obligations of the SUBLESSEE to
pay Rent and make Additional Payments shall be absolute and
unconditional and the SUBLESSEE shall make such payments
without abatement, diminution or deduction regardless of any
cause or circumstances whatsoever including, without
limitation, any defense, set-off, recoupment or counterclaim
which the SUBLESSEE may have or assert against the SUBLESSOR,
the DIRECTOR, or any other person.
Section 3.5. PAST DUE RENT AND ADDITIONAL PAYMENTS. If the SUBLESSEE fails
to pay any Rent and additional Payments the amount due and
payable shall continue as an obligation of the SUBLESSEE until
such shall have been fully paid and shall bear interest at the
Interest Rate for Advances.
ARTICLE IV.
MAINTENANCE AND USE OF PROJECT
Section 4.1. COMPLIANCE WITH LEGAL AND INSURANCE REQUIREMENTS. The
SUBLESSEE, at its expense, shall promptly comply with all
Legal Requirements and Insurance Requirements, and shall
procure, maintain and comply with all permits, licenses and
other authorizations required for any use being made of the
PROJECT or any part thereof then being made or anticipated to
be made, and for the proper construction, installation,
operation and maintenance of the PROJECT or any part thereof.
As used in this Section, "LEGAL REQUIREMENTS" means all laws,
statutes, codes, acts, ordinances, judgments, decrees,
injunctions, rules, regulations, permits, licenses,
authorizations, directions and requirements of all
governmental entities, departments, commissions, boards,
courts, authorities and agencies which now or at any time
hereafter may be applicable to the PROJECT or any part
thereof, any use, anticipated use or condition of the PROJECT
or any part thereof.
"INSURANCE REQUIREMENT" means all provisions of any Insurance
Policy covering or applicable to the PROJECT or any part
thereof, all requirements of the Issuer of any such Policy,
and all orders, rules, regulations or other requirements of
the National Board of Fire Underwriters (or any other body
exercising similar functions) applicable to or affecting the
PROJECT or any part thereof. The SUBLESSEE may, at its expense
and after PRIOR NOTICE to the SUBLESSOR and DIRECTOR, by any
appropriate proceedings diligently prosecuted, contest in good
faith any Legal Requirement and postpone compliance therewith
pending the Resolution or Settlement of such contest provided
that such postponement does not,
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in the opinion of Independent Counsel, materially affect the
PROJECT SITE or the PROJECT FACILITIES or subject the PROJECT
SITE or the PROJECT FACILITIES, or any part thereof, to
imminent loss or forfeiture. Any such action by SUBLESSEE
shall be at SUBLESSEE'S cost and expense and at no cost and no
expense to the SUBLESSOR and DIRECTOR.
Section 4.2. MAINTENANCE AND USE OF PROJECT SITE AND PROJECT FACILITIES.
The SUBLESSEE, at its expense, will keep the PROJECT SITE and
PROJECT FACILITIES in good order and condition (ordinary wear
and tear excepted) and will make all necessary or appropriate
repairs, replacements and renewals thereof, interior,
exterior, structural and nonstructural, ordinary and
extraordinary, foreseen and unforeseen. The SUBLESSEE will not
do, or permit to be done, any act or thing which might
materially impair the value of the PROJECT SITE and PROJECT
FACILITIES or usefulness, will not commit or permit any waste
of the PROJECT and will not permit any unlawful occupation,
business or trade to be conducted on the PROJECT SITE. The
SUBLESSEE shall also, at its own expense, promptly comply with
all rights of way or use, privileges, franchises, servitudes,
licenses, easements, tenements, hereditaments and appurtenance
forming a part of the PROJECT and all instruments creating or
evidencing the same, in each case, to the extent compliance
therewith is required of the SUBLESSEE under the terms
thereof.
Section 4.3. ADDITIONS, MODIFICATIONS AND IMPROVEMENTS. The SUBLESSEE
may from time to time in its discretion and at its expense,
make any additions, modifications or improvements to the
PROJECT FACILITIES which it may deem desirable for its
business purposes provided that no such additions,
modifications or improvements shall, in the opinion of an
Engineer, adversely affect the structural integrity or
strength of any improvements constituting a part of the
PROJECT FACILITIES or materially interfere with the use and
operation thereof. All additions, modifications and
improvements so made by the SUBLESSEE shall become or be
deemed to constitute a part of the PROJECT FACILITIES.
Section 4.4. SUBSTITUTIONS AND REMOVALS. In any instance where the
SUBLESSEE, in its reasonable discretion, determines that any
item of personal property constituting a part of the PROJECT
FACILITIES shall have become inadequate, obsolete, worn-out,
unsuitable, undesirable or unnecessary or should be replaced,
the SUBLESSEE may remove such items with the consent of the
SUBLESSOR and the DIRECTOR or if the SUBLESSEE substitutes and
installs other items of property having equal or greater value
(but not necessarily the same function) in the operation of
the PROJECT FACILITIES, which such substituted property shall
be free from all Liens and encumbrances and shall become part
of the PROJECT FACILITIES.
Section 4.5. INDEMNIFICATION. The SUBLESSEE releases the SUBLESSOR and the
DIRECTOR from, agrees that they shall not be liable for and
indemnifies the
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SUBLESSOR and DIRECTOR against all liabilities, obligations,
claims, damages, penalties, causes of action, costs and
expenses (including, without limitation, reasonable attorneys'
fees and expenses except as may be limited by law or judicial
order or decision entered in any action brought to recover
moneys under this Section) imposed upon, incurred by or
asserted against either on account of:
(a) ownership of any interest in the PROJECT or any part
thereof,
(b) any accident, injury to or death of person or loss of
or damage to property occurring on or about the
PROJECT or any part thereof or the adjoining
sidewalks, curbs, vaults and vault space, if any,
streets or ways,
(c) any use, disuse or condition of the PROJECT or any
part thereof, or the adjoining sidewalks, curbs,
vaults and vault space, if any, streets or ways,
(d) any failure on the part of the SUBLESSEE to perform
or comply with any of the terms hereof, or
(e) the performance of any labor or services or the
furnishing of any materials or other property in
respect of the PROJECT or any part thereof.
(f) any violation of a duty owed or violation thereof by
SUBLESSEE set out in Section 3.10 and 5.2 of the
LEASE except that which is beyond the control of
SUBLESSEE.
In case any action, suit or proceeding is brought against the
SUBLESSOR or DIRECTOR for any such reason, the SUBLESSEE, upon
the request of the SUBLESSOR or DIRECTOR, will at the
SUBLESSEE'S expense, cause such action, suit or proceeding to
be resisted and defended. Any amounts payable to the SUBLESSOR
under this Section which are not paid within ten (10) days
after WRITTEN DEMAND therefor shall bear interest at the
Interest Rate for Advances from the Date of such Demand. The
obligations of the SUBLESSEE under this Section shall survive
any termination of the this SUBLEASE.
ARTICLE V.
TAXES, MECHANICS' LIENS AND INSURANCE
Section 5.1. PAYMENT OF TAXES, AND OTHER GOVERNMENTAL CHARGES. The
SUBLESSEE shall pay, promptly when due, and before penalty or
interest accrue thereon all taxes, assessments, whether
general or special, all other governmental charges and all
public or private utility charges of any kind whatsoever
foreseen or unforeseen, ordinary or extraordinary, that now or
may hereafter at any time be assessed, levied or imposed
against or with respect to the PROJECT (including,
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without limitation, any taxes levied upon or with respect to
the revenues, income or profit of the SUBLESSEE from the
PROJECT) which, if not paid, may become or be made a Lien on
the PROJECT SITE or the PROJECT FACILITIES, or any part
thereof or a charge on such revenues, income and profits.
Notwithstanding the preceding Paragraph the SUBLESSEE
may, at its expense and after PRIOR WRITTEN NOTICE to
the SUBLESSOR and DIRECTOR, and by appropriate
proceedings diligently prosecuted, contest in good
faith the validity or amount of any such taxes,
assessments and other charges, and after Notice to
the SUBLESSOR and the DIRECTOR may, during the period
of contest, permit the items so contested to remain
unpaid. However, if at any time the SUBLESSOR or
DIRECTOR shall notify the SUBLESSEE that, in the
opinion of Independent Counsel, by nonpayment of any
such items as to any part of the PROJECT SITE or the
PROJECT FACILITIES will be materially affected or the
PROJECT SITE or the PROJECT FACILITIES or any part
thereof will be subject to imminent loss or
forfeiture, the SUBLESSEE shall promptly pay such
taxes, assessments or charges. During the period when
the taxes, assessments or other charges so contested
remain unpaid, the SUBLESSEE shall set aside on its
Books adequate reserves with respect to such taxes,
assessments or charges.
Section 5.2. MECHANICS' AND OTHER LIENS. The SUBLESSEE shall not permit any
mechanics' or other liens to be filed or exist against the
PROJECT SITE or PROJECT FACILITIES by reason of work, labor,
services or materials supplied or claimed to have been
supplied to, for or in connection with the PROJECT or to the
SUBLESSEE. If any such Lien shall at any time be filed, the
SUBLESSEE shall, within thirty (30) days after Notice of the
filing thereof but subject to the right to contest hereinafter
set forth, cause the same to be discharged of record by
payment, deposit bond, Order of a Court of competent
jurisdiction or otherwise. Notwithstanding the foregoing, the
SUBLESSEE shall have the right, at its own expense, and after
PRIOR NOTICE to the SUBLESSOR and the DIRECTOR and by
appropriate proceedings duly instituted and diligently
prosecuted, contest in good faith the validity or the amount
of any such Lien. However, if the DIRECTOR or the SUBLESSOR
shall notify the SUBLESSEE that, in the opinion of Independent
Counsel, by nonpayment of any such items will be materially
affected or the PROJECT SITE or the PROJECT FACILITIES or any
part thereof will be subject to imminent loss or forfeiture,
the SUBLESSEE shall promptly cause such Lien to be discharged
of record.
Section 5.3. INSURANCE. The SUBLESSEE shall keep the PROJECT FACILITIES
continuously insured with Required Property Insurance Coverage
in an amount at least equal to the replacement value under
this SUBLEASE for the Term hereof.
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The SUBLESSEE shall keep and maintain in force and comply with
all insurance requirements of SUBLESSOR on behalf of SUBLESSOR
as set forth in Sections 5.4, 5.5, 5.6, 5.7 and 5.8 of the
LEASE. The SUBLESSOR shall be covered in the same manner and
respects as the DIRECTOR and TRUSTEE therein.
During the PROJECT construction period it shall be the
obligation, responsibility and liability of the SUBLESSOR to
keep, maintain and pay for Contractors General Liability
Insurance and Workers' Compensation Insurance in statutory and
reasonable amounts pertaining to its activities and others
performing services for and/or at the direction and instance
of SUBLESSOR.
Section 5.4. WORKERS' COMPENSATION COVERAGE. The SUBLESSEE shall maintain,
or cause to be maintained in connection with the PROJECT, any
Workers' Compensation Coverage required by the applicable laws
of the State pertaining to its activities.
Section 5.5. PAYMENT BY SUBLESSOR OR DIRECTOR. If the SUBLESSEE fails to
(i) pay taxes, assessments and other governmental or
utility charges as required by Section 5.1. hereof,
(ii) pay or discharge mechanics' or other Liens as
required by Section 5.2. hereof,
(iii) maintain and keep in force the Insurance required by
Section 5.3. hereof or
(iv) maintain required Workers' Compensation Coverage as
required by Section 5.4. hereof, the SUBLESSOR or the
DIRECTOR may (but shall not be obligated to) Advance
Funds to pay any such required charges of items. Any
Funds so advanced shall be payable an WRITTEN DEMAND
therefor and shall bear interest from the Date of
Advancement at the Interest Rate for Advances.
ARTICLE VI.
DAMAGE, DESTRUCTION AND CONDEMNATION
Section 6.1. DAMAGE TO OR DESTRUCTION OF PROJECT FACILITIES. In case of any
damage to or destruction of the PROJECT FACILITIES or any part
thereof, the SUBLESSEE will promptly give WRITTEN NOTICE
thereof to the SUBLESSOR and the DIRECTOR generally describing
the nature and extent of such damage or destruction. There
shall be no abatement or diminution of Rent and the SUBLESSEE
shall, whether or not the Net Proceeds of Insurance, if any,
received on Account of such damage or destruction shall be
sufficient for such purpose, promptly commence and complete,
or cause to be commenced and
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completed, repair or restoration of the PROJECT FACILITIES as
nearly as practicable to the value, condition and character
thereof existing immediately PRIOR to such damage or
destruction, with such changes or alterations, however, as the
SUBLESSEE may deem necessary for proper operation of the
PROJECT and consistent with the PROJECT PURPOSES.
Section 6.2. USE OF INSURANCE PROCEEDS. In connection with the repair or
restoration of the PROJECT FACILITIES pursuant to Section 6.1.
hereof. Net Proceeds of Required Property Insurance Coverage
of Twenty-Five Thousand and No/100's ($25,000.00) Dollars or
less shall be paid to the SUBLESSEE for application in
accordance with Section 5.3. of this SUBLEASE. Any such Net
Proceeds in excess of Twenty-Five Thousand and No/100's
($25,000.00) Dollars shall be paid to and held by the
SUBLESSOR and applied pursuant to Section 6.1. of this
SUBLEASE.
Section 6.3. EMINENT DOMAIN. If Title to or the temporary use of the
PROJECT SITE or the PROJECT FACILITIES, or any part thereof,
shall be taken under the exercise of the power of Eminent
Domain by any governmental body or by any person, firm or
corporation acting under governmental body or by any person,
firm or corporation acting under any governmental authority,
the SUBLESSEE will promptly give WRITTEN NOTICE thereof to the
SUBLESSOR and the DIRECTOR describing the nature and extent of
such taking. Any Net Proceeds received from any award made in
such Eminent Domain proceedings with respect to the PROJECT
SITE and the PROJECT FACILITIES shall be paid to SUBLESSOR.
Section 6.4. PROCEEDS RELATING TO PROJECT EQUIPMENT. All Insurance proceeds
and all awards made in connection with Eminent Domain
proceedings paid or payable by reason of damage, destruction
or the taking of equipment and other property of the SUBLESSEE
shall be the property of and shall be paid to the SUBLESSEE.
ARTICLE VII.
FURTHER REPRESENTATIONS AND AGREEMENTS
RESPECTING THE PROJECT AND THE SUBLESSEE
Section 7.1. REPRESENTATIONS OF THE SUBLESSEE. The SUBLESSEE warrants and
represents as follows:
(a) It is duty incorporated, and is in good standing
under the Laws of the State of its Incorporation and
duly qualified to do business in the State, and will
remain so qualified.
(b) The financing assistance provided by the DIRECTOR
under the ACT, the BONDS and the Terms of the
SUBLEASE,
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(i) have induced the SUBLESSEE to locate within
the City of Xxxxxxx, Ohio that business of
the SUBLESSEE to be conducted by use of the
PROJECT; and
(ii) will carry out and give effect to the public
purposes of the ACT.
(c) The improvement of the PROJECT FACILITIES and the
installation of the PROJECT EQUIPMENT in accordance
with the Plans and Specifications will be
accomplished and the PROJECT will be utilized and
maintained in such manner as to conform with all
applicable zoning, planning, building, environmental
and other regulations of all governmental authorities
having jurisdiction of the PROJECT.
(d) The SUBLESSEE has full power and authority to execute
and deliver this SUBLEASE and the ASSIGNMENT and to
carry out the transactions provided for herein. This
SUBLEASE and the ASSIGNMENT have by proper corporate
action been duty authorized, executed and delivered
by the SUBLESSEE and all steps necessary have been
taken to constitute this SUBLEASE and the ASSIGNMENT,
a valid and binding obligation of the SUBLESSEE.
(e) The execution, delivery and performance by the
SUBLESSEE of this b and the ASSIGNMENT and the
consummation of the transactions contemplated hereby
and thereby will not violate any provision of law or
regulation applicable to the SUBLESSEE or of any Writ
or Decree of any Court or governmental
instrumentality, or of the Articles of Incorporation
or the By- Laws of the SUBLESSEE or of any MORTGAGE,
indenture, contract, agreement or other undertaking
to which the SUBLESSEE is party or which purports to
be binding upon the SUBLESSEE or upon any of its
assets.
Section 7.2. DOCUMENTS TO BE PROVIDED. The SUBLESSEE shall file with the
SUBLESSOR during the first two (2) weeks of the Calendar Month
succeeding each Anniversary of the Completion Date, commencing
with the month succeeding the First Anniversary of the
Completion Date, a Certificate setting forth the description
of each item of personal property or fixtures which has become
a part of the PROJECT FACILITIES and of any additions,
remodeling, modification or improvements to the PROJECT
FACILITIES which have been made during the twelve (12)
Calendar Months preceding the first of the month in which such
Certificate is filed.
Section 7.3. RIGHT OF INSPECTION. Subject to reasonable security and safety
regulation and upon reasonable Notice, the SUBLESSOR and the
DIRECTOR and their respective
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agents, shall have the right at any time during normal
business hours to inspect the PROJECT.
Section 7.4. ASSIGNMENT AND SUBLEASING. This SUBLEASE may not be assigned
in whole or in part by the SUBLESSEE, nor may the PROJECT SITE
or the PROJECT FACILITIES be Subleased in whole or in part by
the SUBLESSEE without the PRIOR WRITTEN APPROVAL of the
SUBLESSOR and the DIRECTOR.
Section 7.5. SUBLESSEE TO MAINTAIN ITS EXISTENCE; SALE OF ASSETS OR
MERGERS. The SUBLESSEE shall do all things necessary to
preserve and keep in full force and effect its existence,
rights and franchises, except as otherwise permitted by this
Section 7.5.. In particular, the SUBLESSEE shall not without
the PRIOR APPROVAL of the SUBLESSOR and DIRECTOR (which
approval shall not be unreasonably withheld):
(a) sell, transfer or otherwise dispose of all, or
substantially all, of its assets;
(b) consolidate with or merge into any other entity;
or
(c) permit one (1) or more other entities to
consolidate with or merge into it. The preceding restrictions
shall not apply, however, to a transaction if both of the
following conditions are met:
(i) the transferee or the surviving or resulting entity
has a net worth, determined in accordance with
generally accepted accounting principles consistently
applied, equal to or greater than the net worth of
the SUBLESSEE immediately PRIOR to such
consolidation, merger, sale, transfer or disposition;
and,
(ii) the transferee or the surviving or resulting entity,
if other than the SUBLESSEE, by proper Written
Instrument satisfactory to the SUBLESSOR and the
DIRECTOR, irrevocably and unconditionally assumes the
obligation to perform and observe the agreements and
obligations of the SUBLESSEE under this SUBLEASE.
Section 7.8. BOOKS AND RECORDS; FINANCIAL STATEMENTS. The SUBLESSEE shall
keep true and proper Books of Records and Accounts in which
full and correct entries are made of all its business
Transactions, and shall reflect in its Financial Statements
adequate accruals and appropriations to reserves, all in
accordance with generally accepted accounting principles. The
SUBLESSEE shall deliver to the SUBLESSOR and the DIRECTOR
copies of the follow:
(a) within forty-five (45) days after the end of each
Quarterly period of each Fiscal Year of the
SUBLESSEE, Balance Sheet of the SUBLESSEE in the
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same form and substance as the SUBLESSOR is required
to furnish to the DIRECTOR pursuant to Section 7.7(e)
of the LEASE.
(b) within ninety (90) days after the and of each Fiscal
Year of the SUBLESSEE, Balance Sheet of the SUBLESSEE
as at the end of such year and Statements of Income
and retained earnings of the LESSEE for such year,
setting forth in comparative form the corresponding
figures as at the end of or for the previous Fiscal
Year, all in reasonable detail and accompanied by an
opinion thereon of the regular Independent Certified
Public Accountants selected by the SUBLESSEE, stating
that such Balance Sheets and Financial Statements
have been prepared in accordance with generally
accepted accounting principles consistently applied
and that the Audit by such Accountants in connection
with such Balance Sheets and Financial Statements has
been made in accordance with generally accepted
auditing standards in accordance with the same
provisions contained in Section 7.7(j) of the LEASE;
(c) all reports and certificates as specified in Section
7.4 of the LEASE respecting SUBLESSEE;
(d) promptly upon receipt thereof, copies of all Reports
submitted to the SUBLESSEE by Independent Certified
Public Accountants in connection with any annual,
interim or Special Audit of the Records of the
SUBLESSEE made by such Accountants; and
(e) as soon as available, copies of all Financial
Statements, Reports, Notices and Proxy Statements
sent by the SUBLESSEE to its Shareholders, generally,
and of all regular and periodic Reports and all
Registration Statements (other than on form S-8)
filed by the SUBLESSEE with any securities exchange
or with the Securities and Exchange Commission or any
successor agency.
The DIRECTOR and the SUBLESSOR shall, to the extent
permitted by law, maintain the confidentiality of all
Financial Statements, Reports and other information
submitted by the SUBLESSEE pursuant to this Section.
Section 7.7. TITLE OF PROJECT SITE. The SUBLESSOR and SUBLESSEE have
obtained Written evidence as to the status of Title to the
PROJECT SITE as of the Date of Acquisition thereof by the
DIRECTOR. The SUBLESSOR and SUBLESSEE agree that Title is
satisfactory and that all defects in and Liens and
encumbrances on such Title, as set forth in such evidence of
exclusions from coverage and exceptions, do not impair the
SUBLESSEE'S use or the value of the PROJECT SITE and the
PROJECT FACILITIES.
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Section 7.8. NO WARRANTY OF CONDITION OR SUITABILITY. SUBLESSOR does not
make any warranty, either express or implied, as to the
suitability or utilization of the PROJECT SITE or the PROJECT
FACILITIES for the PROJECT PURPOSES, or as to the condition of
the PROJECT SITE or the PROJECT FACILITIES or that they are or
will be suitable for the SUBLESSEE'S purposes or needs.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
Section 8.1. EVENTS OF DEFAULT. Any one (1) or more of the following events
shall be an "EVENT OF DEFAULT" under the SUBLEASE:
(a) any EVENT OF DEFAULT of SUBLESSEE as defined in
Section 9.1 of the LEASE;
(b) The SUBLESSEE fails to pay when due any payments of
Rent on or Prior to the Date on which any such
payment is due and payable and continuing for more
than ten (10) days thereafter;
(c) The SUBLESSEE fails to observe or perform any term,
covenant or agreement, on the SUBLESSEE'S part to be
observed or performed under this SUBLEASE, and the
continuation of such failure for thirty (30) days
after WRITTEN NOTICE of such failure is given to the
SUBLESSEE by the SUBLESSOR or the DIRECTOR, or for
such longer period as the SUBLESSOR and the DIRECTOR
may agree to in Writing; provided, that if the
failure is other than the payment of money and is of
such nature that it cannot be corrected within the
applicable period, such failure shall not constitute
an Event of Default so long as the SUBLESSEE
institutes curative action within the applicable
period and diligently pursues such action to
completion;
(d) The SUBLESSEE shall:
(i) admit in Writing its inability to pay its
debts generally as they become due;
(ii) have an Order for Relief entered in any case
commenced by or against it under the Federal
Bankruptcy laws, as now or hereafter are in
effect;
(iii) commence a proceeding under any other
Federal or State Bankruptcy, insolvency,
reorganization or other similar law, or have
such a proceeding commenced against it and
either have an Order of
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Insolvency or Reorganization entered against
it or have the proceeding remain undismissed
and unstayed for ninety (90) days;
(iv) made an Assignment for the benefit of
creditors; or
(v) have a Receiver or Trustee appointed for ft
or for the whole or any substantial part of
its property; or
(e) The SUBLESSEE, or its permitted Assign or Subleasee,
shall suspend or discontinue operation of the PROJECT
for a period longer than one hundred eighty (180)
days other than by reason of Force Majeure.
Notwithstanding the foregoing, 1, by reason of Force
Majeure the SUBLESSEE is unable to perform or observe
any agreement, term or condition hereof, other than
any obligation to pay Rent or make Additional
Payments or other payments required hereunder, the
SUBLESSEE shall not be deemed in Default during the
continuance of such inability. However, the SUBLESSEE
shall promptly give Notice to the SUBLESSOR and the
DIRECTOR of the existence of an Event of Force
Majeure and shall use best efforts to remove the
effects thereof; provided that the Settlement of
Strikes or other industrial disturbances shall be
entirely at the sole discretion of the SUBLESSEE.
The term "FORCE MAJEURE" shall mean, without limitation, the
following:
(i) acts of God; strikes, lockouts or other
industrial disturbances; acts of public
enemies; orders or restraints of any kind of
the government of the United States or of
the State or any part of their departments;
agencies, political subdivisions or
officials, or any civil or military
authority; insurrections; civil
disturbances; riots; epidemics; landslides;
lightening; earthquakes; fires; hurricanes;
tornados; storms; droughts: floods; arrests,
restraint of government and people;
explosions, breakage; malfunction or
accident to facilities, machinery,
transmission pipes or canals; partial or
entire failure of utilities; shortages of
labor, materials, supplies or
transportation; or
(ii) any other cause, circumstance or event not
reasonably within the control of the
SUBLESSEE.
Section 8.2. REMEDIES ON DEFAULT. Whenever an Event of Default shall have
happened and be subsisting, any one (1) or more of the
following remedial steps may be taken:
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(a) The SUBLESSOR may, with the consent of the DIRECTOR,
and shall at the request of the DIRECTOR, declare all
installments of Rent, together with any Additional
Payments and other amounts payable hereunder to be
immediately due and payable, whereupon the same shall
become immediately due and payable;
(b) The SUBLESSOR may re-enter and take possession of the
PROJECT SITE and the PROJECT FACILITIES without
terminating this SUBLEASE and SUBLEASE the PROJECT
SITE and the PROJECT FACILITIES for the Account of
the SUBLESSEE holding the SUBLESSEE liable for the
difference between the Rent and other amounts payable
by such Subleasee in such Subleasing and the Rent,
Additional Payments and other amounts payable by the
SUBLESSEE hereunder;
(c) The SUBLESSOR may terminate this SUBLEASE, exclude
the SUBLESSEE from possession of the PROJECT SITE and
the PROJECT FACILITIES and lease the PROJECT SITE and
the PROJECT FACILITIES to another, but holding the
SUBLESSEE liable for all Rent, Additional Payments
and other amounts payable hereunder up to the
effective date of such Subleasing;
(d) The SUBLESSOR and the DIRECTOR may have access to,
inspect, examine and make copies of the Books and
Record, Accounts, and Financial Data of the SUBLESSEE
pertaining to the PROJECT;
(e) The SUBLESSOR or the DIRECTOR may pursue all remedies
now or hereafter existing at law or in equity to
collect all the amounts then due and thereafter to
become due under this SUBLEASE, or to enforce the
performance and observance of any other obligation or
agreement of the SUBLESSEE, under this SUBLEASE.
Any amounts collected as or applicable to Rent and any other
amounts which would be applicable to payment of principal of
or interest on the NOTE collected pursuant to action taken
under this Section shall be paid to the DIRECTOR.
Section 8.3. NO REMEDY EXCLUSIVE. No remedy conferred or reserved by this
SUBLEASE is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy
given under this SUBLEASE or now or hereafter existing at law,
in equity or by statute. No delay or omission to exercise any
right or power accruing upon any Default shall impair any such
right or power or shall be construed to be a waiver thereof,
but any such rights and power may be exercised from time to
time and as often as may be deemed expedient. In order to
entitle the SUBLESSOR or the
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DIRECTOR to exercise any remedy reserved to it in this
ARTICLE, it shall not be necessary to give any Notice, other
than such Notice as may be expressly provided for herein or
required by law.
Section 8.4. AGREEMENT TO PAY FEES AND EXPENSES. If an Event of Default
should occur and the SUBLESSOR or the DIRECTOR should incur
expenses, including attorneys' fees, in connection with the
enforcement of this SUBLEASE or the collection of sums due,
the SUBLESSEE shall reimburse the SUBLESSOR and the DIRECTOR,
as applicable, for the expenses so incurred upon Demand. If
any such expenses are not so reimbursed, the amount thereof,
together with interest thereon from the Date of Demand for
payment at the Interest Rate for Advances, shall, to the
extent permitted by law, be reimbursed and in any action
brought to collect such sums, the SUBLESSOR or the DIRECTOR,
as applicable, shall be entitled to seek recovery of such
expenses in such action except as limited by law or by
Judicial Order or decision entered in such proceedings.
Section 8.5. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. No failure by
the SUBLESSOR or the DIRECTOR to insist upon strict
performance by the SUBLESSEE of any provision hereof shall
constitute a waiver of such failure to strictly perform and no
express waiver shall be deemed to apply to any other existing
or subsequent failure by the SUBLESSEE to observe or comply
with any provision hereof.
Section 8.6. NOTICE OF DEFAULT. The SUBLESSEE shall notify the
SUBLESSOR and the DIRECTOR immediately if it becomes aware of
the occurrence of any Event of Default hereunder or of any
fact, condition or event which, with the giving of Notice or
passage of time or both, would become an Event of Default.
ARTICLE IX
MISCELLANEOUS
Section 9.1. OTHER PROVISIONS. The SUBLESSEE agrees to be bound by and
adhere to all terms and conditions required to be performed by
it pursuant to the terms and conditions contained in that
certain LEASE between DIRECTOR OF DEVELOPMENT OF THE STATE OF
OHIO and FOREMOST MGMT., INC., dated as of September 21, 1993
(OHIO ENTERPRISE BOND FUND PROGRAM) pertaining to this
PROJECT, including but not limited to fulfilling the
obligation to furnish a Letter of Credit in Section 3.2 (c) or
parts (a) or (b) thereof and Section 7.9 of the LEASE.
SUBLESSEE shall provide for any construction cost overruns,
furnish a Xxxx X. Xxxxxxxx Personal Guaranty of this Sublease
and in return all tax abatements received by SUBLESSOR in
connection with this PROJECT shall all be passed through and
returned to SUBLESSEE.
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Section 9.2. QUIET ENJOYMENT. The SUBLESSOR covenants with the
SUBLESSEE that, upon the payment of Rent and Additional
Payments and the performance and observance of the other
covenants and agreements on its part to be performed and
observed hereunder, the SUBLESSEE shall and may peaceably and
quietly have, hold and enjoy the PROJECT SITE and the PROJECT
FACILITIES without hindrance from any person whomsoever.
Section 9.3. SURRENDER OF PROJECT. Upon the termination or expiration
of this SUBLEASE, the SUBLESSEE shall surrender peaceably and
promptly possession of the PROJECT SITE and the PROJECT
FACILITIES, leaving same in good condition and repair
(ordinary wear and tear excepted).
Section 9.4. NOTICES. All Notices, Certificates, requests or other
communications hereunder shall be in Writing and be deemed to
be sufficiently given when
A PAGE OF TEXT IS MISSING
invalid or unenforceable, such determination shall not affect
any other provision, covenant, obligation or agreement, each
of which shall be construed and enforced as if such invalid or
unenforceable portion were not contained herein. Nor shall
such invalidity or un enforceability affect any valid and
enforceable application thereof, and each such provision,
covenant, obligation or agreement shall be deemed to be
effective, operative, made, entered into or taken in the
manner and to the full extent permitted by law.
Section 9.9. CAPTIONS. The captions and headings in this SUBLEASE shall be
solely for convenience of reference and in no way define,
limit or describe the scope or intent of any provisions or
Sections of this SUBLEASE.
Section 9.10. GOVERNING LAW. This SUBLEASE shall be deemed to be a CONTRACT
made under the laws of the State and for all purposes shall be
governed by and construed in accordance with the law of the
State.
IN WITNESS WHEREOF, the SUBLESSOR and the SUBLESSEE have caused this
SUBLEASE to be duly executed in their respective names, all as of the Date
hereinbefore written.
Signed and acknowledged FOREMOST MGMT., INC.
in the presence of SUBLESSOR
/s/ Witness BY: /s/ Xxxx X. Xxxxxxxxxxxx
--------------------- -----------------------------
Xxxx X. Xxxxxxxxxxxx
ITS: President
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/s/ Witness
---------------------
Witnesses as to Foremost Mgmt., Inc.
Signed and acknowledged LUIGINO'S, INC.
in the presence of SUBLESSEE
/s/ Witness BY: /s/ Xxxxxx X. Xxxxx
--------------------- -----------------------------
Xxxxxx X. Xxxxx
ITS: Executive Vice President of
/s/ Witness Operations
---------------------
Witnesses as to Luigino's, Inc.
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STATE OF OHIO )
) ss.
County of Franklin )
On this 20th day of September, 1993, before me, a Notary Public, in and
for said County and State, personally appeared Xxxx X. Xxxxxxxxxxxx, the
President of FOREMOST MGMT., INC., who acknowledged that he did sign said
SUBLEASE on behalf of said Corporation with due authorization thereof and that
the same is his free act and deed in signing as an Officer of said Corporation
and on behalf of said Corporation, and the free act and deed of said
Corporation.
/s/ Notary Public
----------------------------
(SEAL) Notary Public
[Notary Stamp]
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STATE OF OHIO )
) ss.
County of Franklin )
On this 20th day of September, 1993, before me a Notary Public, in and
for said County and State, personally appeared Xxxxxx X. Xxxxx, the Executive
Vice President of LUIGINO'S, INC., who acknowledged that he did sign said
SUBLEASE on behalf of said Corporation with due authorization thereof and that
the same is his free act and deed in signing as an Officer of said Corporation
and on behalf of said Corporation, and the free act and deed of said
Corporation.
/s/ Notary Public
----------------------------
(SEAL) Notary Public
[Notary Stamp]
This Instrument Prepared By: Xxxxx X. Xxxxxxx
Attorney at Law
Attorney Registration No. 17826
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000-0000
(000) 000-0000
o Filed without exhibits. Such exhibits will be filed with the Commission
upon request.
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ASSIGNMENT OF SUBLEASE
THIS ASSIGNMENT OF SUBLEASE (the "ASSIGNMENT") is made and entered into
this 21st day of September, 1993, and from FOREMOST MGMT., INC. ("ASSIGNOR"), an
Ohio corporation, 000 Xxxx Xxxxxx, Xxxxxxx, Xxxx, 00000, to the DIRECTOR OF
DEVELOPMENT OF THE STATE OF OHIO ("ASSIGNEE"), 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxx, 00000-0000, under the following circumstances:
A. Pursuant to Section 13, Article VIII of the Ohio Constitution and
Chapter 166 of the Ohio Revised Code, and a LOAN AGREEMENT (the
"AGREEMENT") of even date herewith, between ASSIGNEE as Lender and
ASSIGNOR as Borrower, in which the ASSIGNEE has made a LOAN (the
"LOAN") to ASSIGNOR in the principal amount of Two Million and No/100's
($2,000,000.00) Dollars; and a LEASE of even date herewith, between
ASSIGNEE as LESSOR and ASSIGNOR as LESSEE, in connection with the sale
of $8,100,000 of Bonds used, for the purpose of acquiring certain
property in connection with the PROJECT as defined in the AGREEMENT,
including the real estate described in EXHIBIT A attached hereto (the
"SUBLEASED PREMISES").
B. By the AGREEMENT and as further evidenced by the NOTE of ASSIGNOR (the
"NOTE") delivered thereunder, and the LEASE and documents related
thereto ASSIGNOR has agreed to repay the LOAN by making payments (the
"LOAN PAYMENTS") at the times and in the amounts set forth in the NOTE
and to make the payments required by the LEASE.
C. ASSIGNOR has entered into a SUBLEASE as SUBLESSOR effective as of
September 21, 1993, (the "SUBLEASE") with LUIGINO'S, INC., (the
"SUBLESSEE") covering the SUBLEASED PREMISES, a SUBLEASE having been
filed for record in the Xxxxxxx County, Ohio Recorder's Office on
September 20, 1993, as Instrument No. 174317 in Lease Volume 39, Page
319.
D. By this ASSIGNMENT, ASSIGNOR intends to assign the SUBLEASE and the
Rentals and other payments payable thereunder to ASSIGNEE as security
for it obligations under the AGREEMENT, the NOTE and the LEASE.
NOW, THEREFORE, in consideration of the LOAN and the LEASE and for
other valuable considerations received, and to secure the payment of LOAN
PAYMENTS and LEASE PAYMENTS and the performance and observance by ASSIGNOR of
its other obligations set forth in the AGREEMENT, the NOTE, the LEASE and this
ASSIGNMENT, ASSIGNOR does hereby grant, sell, transfer, set over, deliver and
assign unto ASSIGNEE, the SUBLEASE, together with the absolute, present and
continuing right to all Rents and Payments due or to become due thereunder.
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Section: 1. REPRESENTATIONS AND WARRANTIES. ASSIGNOR represents and
warrants to ASSIGNEE that:
(a) it has delivered to ASSIGNEE a true, executed
Counterpart of the SUBLEASE;
(b) it has full authority and right to ASSIGN the
SUBLEASE as herein provided;
(c) it has made no other ASSIGNMENT OF THE SUBLEASE or of
any Rents or Payments Payable thereunder; and,
(d) no payments under the SUBLEASE have been assigned,
encumbered, waived, released, discharged or
compromised.
Section 2. PERFORMANCE BY ASSIGNOR. ASSIGNOR covenants and agrees that it
will perform and observe, duly and punctually, any and all of
its obligation and duties as SUBLESSOR under the SUBLEASE in
accordance with the terms thereof.
Section 3. PROHIBITED ACTS. ASSIGNOR covenants and agrees that it will
not, without the PRIOR WRITTEN CONSENT of ASSIGNEE:
(a) receive, collect, waive, discount, set-off,
compromise or agree to any reduction of or deduction
from any rents or payments under the SUBLEASE.
(b) pledge, assign, encumber or MORTGAGE the SUBLEASE;
(c) agree to any cancellation, termination, amendment or
modification of the SUBLEASE, or
(d) agree to any ASSIGNMENT or further SUBLEASE of the
SUBLEASE by the SUBLESSEE except as expressly
authorized by the SUBLEASE.
Section 4. COLLECTION AND RECEIPT OF RENTS. ASSIGNEE shall have, by
virtue of this ASSIGNMENT, the absolute, present and
continuing right to receive and collect any and all payments
of "RENT", as defined in the SUBLEASE, and all other amounts
payable thereunder directly from the SUBLESSEE; however, the
failure of ASSIGNEE to receive such payments shall not relieve
ASSIGNOR from any of its obligations under the AGREEMENT, or
the NOTE, or the LEASE; and provided further that ASSIGNEE
shall not exercise its right hereunder to require all amounts
payable under the Sublease to be paid directly to ASSIGNEE
until an Event of Default has occurred under the Lease or
Sublease; and provided further that ASSIGNEE shall not
exercise its right hereunder to require all amounts payable
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under the Sublease to be paid directly to ASSIGNEE until an
Event of Default has occurred under the LEASE or SUBLEASE.
Section 5. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT. The
SUBLEASE is and shall remain subject and subordinate to the
LEASE between ASSIGNOR and ASSIGNEE, however, ASSIGNEE agrees,
by its acceptance of this ASSIGNMENT, that
(a) as long as the SUBLEASE is in full force and effect
and shall not have been terminated pursuant to any
conditions or limitations contained therein or
pursuant to law;
(b) the SUBLESSEE shall not be in Default in the Payment
of Rent under the SUBLEASE or in the performance and
observance of its obligations thereunder; and,
(c) the SUBLESSEE agrees to attorn to ASSIGNEE when
ASSIGNEE is in possession of the SUBLEASED PREMISES,
then ASSIGNEE will not take action to terminate the
SUBLEASE or interfere with or interrupt the
SUBLESSEE'S possession and use at the SUBLEASED
PREMISES in connection with any action taken under
this ASSIGNMENT including Foreclosure.
Section 6. ENFORCEMENT OF SUBLEASE AND SUBLEASE GUARANTY. ASSIGNEE
shall have the right, but not the obligation, to enforce, by
all available remedies, the SUBLEASE without any PRIOR NOTICE
to or the consent of ASSIGNOR.
Section 7. LIMITATION OF LIABILITY OF ASSIGNEE. The acceptance by
ASSIGNEE of this ASSIGNMENT, with all of the rights, powers,
privileges and authority so created, shall not, prior to
actual entry upon and taking of possession of the SUBLEASED
PREMISES by ASSIGNEE, be deemed or construed to constitute
ASSIGNEE a "MORTGAGEE IN POSSESSION"; nor to place
responsibility for the control, care, management or report of
the SUBLEASED PREMISES upon ASSIGNEE; nor to cause ASSIGNEE to
be liable for any waste committed thereon or for any dangerous
or defective condition of the SUBLEASED PREMISES or any part
thereof; nor thereafter or at any time or in any event
obligate ASSIGNEE to appear in or defend any action or
proceeding relating to the SUBLEASE or to the SUBLEASED
PREMISES; nor to perform or discharge any obligation, duty or
liability of SUBLESSOR under the SUBLEASE; nor shall ASSIGNEE
be liable in any way for any injury or damage to person or
property sustained by any person, firm or corporation in or
about the SUBLEASED PREMISES.
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Section 8. INDEMNIFICATION. ASSIGNOR hereby agrees to indemnify and hold
ASSIGNEE harmless of and from any and all liability, loss,
damage or expense which it may or might incur under or by
reason of this ASSIGNMENT, or for any action taken by ASSIGNEE
hereunder or by reason or in defense of any and all claims and
demands whatsoever which may be asserted against ASSIGNEE
arising out of or in connection with the SUBLEASE, including,
but without limitation thereto, any claim by the SUBLESSEE of
credit for rental paid to and received by ASSIGNOR, but not
delivered to ASSIGNEE; and should ASSIGNEE incur any such
liability, loss, damage or expense, the amount thereof
(including reasonable attorneys' fees) without interest
thereon at the Interest Rate for Advances, as defined in the
SUBLEASE, shall be payable by ASSIGNOR immediately upon
demand.
Section 9. NO WAIVER. ASSIGNEE may take or release other security, may
release any party primarily or secondarily liable for any
indebtedness secured hereby, may grant extensions, renewals or
indulgences with respect to such indebtedness, and may. apply
any other security therefor held by it to the satisfaction of
such indebtedness without prejudice to any of its rights
hereunder. It is further agreed that nothing herein contained
and no act done or omitted by ASSIGNEE pursuant to the powers
and rights granted it herein shall be deemed to be a waiver by
ASSIGNEE of its rights and remedies under the AGREEMENT or the
NOTE or the LEASE, but this ASSIGNMENT is made and accepted
without prejudice to any of the rights and remedies possessed
by ASSIGNEE under the terms thereof. The right of ASSIGNEE to
enforce any other security therefor owned by it may be
exercised by ASSIGNEE either prior to, simultaneously with, or
subsequent to any action taken by it hereunder.
Section 10. CAPTIONS. Any Paragraph Titles or Captions contained in this
ASSIGNMENT are for convenience only and shall not be deemed to
define, limit or otherwise modify the scope or intent of this
ASSIGNMENT.
Section 11. TERMINATION OF ASSIGNMENT. Upon Payment in Full of the NOTE,
all LEASE payments and all other indebtedness payable
hereunder, this ASSIGNMENT shall become and be void and of no
effect, but the Affidavit, Certificate, and Letter of
Statement of ASSIGNEE showing any part of said indebtedness to
remain unpaid shall be and constitute conclusive evidence of
the validity, effectiveness and continuing force of this
ASSIGNMENT, and any person, firm or corporation, may and is
hereby authorized to rely thereon.
Section 12. NOTICES. All Notices, Demands, or Documents of any kind which
ASSIGNEE may be required or may desire to serve upon ASSIGNOR
hereunder shall be sufficiently served by delivering same to
ASSIGNOR personally or by leaving a copy of same addressed to
ASSIGNOR at the address above-specified or by
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depositing a copy of same in the United States mail, postage
prepaid and addressed to ASSIGNOR at said address.
Section 13. SUCCESSORS AND ASSIGNS. The terms, covenants, conditions
and warranties contained herein and the powers granted hereby
shall inure to the benefit of and bind ASSIGNOR and ASSIGNEE
and their respective successors and assigns.
IN WITNESS WHEREOF, the ASSIGNOR has executed and delivered this
ASSIGNMENT as of the Date first above written.
Signed and acknowledged FOREMOST MGMT., INC.
in the presence of SUBLESSOR
/s/ Witness BY: /s/ Xxxx X. Xxxxxxxxxxxx
--------------------- -----------------------------
Xxxx X. Xxxxxxxxxxxx
ITS: President
/s/ Witness
---------------------
Witnesses as to Foremost Mgmt., Inc.
Signed and acknowledged DIRECTOR OF DEVELOPMENT OF
in the presence of THE STATE OF OHIO, ACTING ON
BEHALF OF THE STATE
ASSIGNEE
BY:
--------------------- -----------------------------
Xxxxxx X. Xxxxxxx
ITS: Director
---------------------
Witnesses as to DIRECT OR OF
DEVELOPMENT OF THE STATE OF OHIO
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STATE OF OHIO )
) ss.
County of Franklin )
On this 20th day of September, 1993, before me, a Notary Public, in and
for said County and State, personally appeared Xxxx X. Xxxxxxxxxxxx, the
President of Foremost Mgmt., Inc., who executed the foregoing instrument as
President on behalf of Foremost Mgmt., Inc. and who acknowledged that the same
to be his free act and deed individually and as President and the free act and
deed of Foremost Mgmt., Inc.
/s/ Notary Public
-------------------------
(SEAL) Notary Public
[Notary Stamp]
STATE OF OHIO )
) ss.
County of Franklin )
On this ___ day of September, 1993, before me a Notary Public, in and
for said County and State, personally appeared Xxxxxx X. Xxxxxxx, of the State
of Ohio, who executed the foregoing instrument as Director of Development of the
State of Ohio, acting on behalf of the State, and who acknowledged that the same
to be his free act and deed individually and as Director and the free act and
deed of the State of Ohio.
-------------------------
(SEAL) Notary Public
[Notary Stamp]
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ACKNOWLEDGMENT
AND
CONSENT TO ASSIGNMENT
LUIGINO'S, INC. as SUBLESSEE (the "SUBLESSEE") under the SUBLEASE (the
"SUBLEASE") referred to in the foregoing ASSIGNMENT OF SUBLEASE (the
"ASSIGNMENT") hereby expressly acknowledges and consents to the ASSIGNMENT and
agrees that all payments of Rent under the SUBLEASE shall be made directly to
ASSIGNEE while the ASSIGNMENT is in effect and that ASSIGNEE shall have the
right directly to enforce the SUBLEASE. The SUBLESSEE further agrees to the
provisions governing subordination, non-disturbance and attornment set forth in
Section 5. of the ASSIGNMENT.
LUIGINO'S, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------
Xxxxxx X. Xxxxx
ITS: Executive Vice President of
Operations
STATE OF OHIO )
) ss.
County of Franklin )
On this 20th day of September, 1993, before me, a Notary Public, in and
for said County and State, personally appeared Xxxxxx X. Xxxxx, of Luigino's,
Inc., who executed the foregoing instrument as Executive Vice President of
Operations on behalf of Luigino's, Inc. and who acknowledged that the same to be
his free act and deed individually and as Executive Vice President of Operations
and the free act and deed of Luigino's, Inc.
/s/ Notary Public
-------------------------
(SEAL) Notary Public
[Notary Stamp]
o Filed without exhibits. Such exhibits will be filed with the Commission
upon request.
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