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EXHIBIT 10.45
EXECUTION COPY
LEASE BY AND BETWEEN
RECHSTEINER/PAPETTI, ET AL.
AS LANDLORD
AND
MICHAEL FOODS, INC.,
AS TENANT
DATED FEBRUARY 26, 1997
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INDEX
Article Page
1 Leased Premises; Lease Term . . . . . . . . . . . . . . . . . . . . 1
2 Rent Payments; Net Lease . . . . . . . . . . . . . . . . . . . . . 1
3 Use of Leased Premises . . . . . . . . . . . . . . . . . . . . . . 2
4 No Representations . . . . . . . . . . . . . . . . . . . . . . . . 3
5 Compliance with Laws; Insurance Regulations . . . . . . . . . . . . 3
6 Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7 Repair, Maintenance . . . . . . . . . . . . . . . . . . . . . . . . 6
8 Alterations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9 Covenant Against Liens . . . . . . . . . . . . . . . . . . . . . . 9
10 Landlord's Right of Entry . . . . . . . . . . . . . . . . . . . . . 9
11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
12 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
13 Escrow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
14 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15 Damage or Destruction . . . . . . . . . . . . . . . . . . . . . . . 15
16 Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17 Mortgaging; Assignment; Subletting . . . . . . . . . . . . . . . . 17
18 Subordination and Attornment . . . . . . . . . . . . . . . . . . . 18
19 Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . . 19
20 Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . . 19
21 Cure of Tenant's Default . . . . . . . . . . . . . . . . . . . . . 20
22 Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
23 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
24 Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . 24
25 Surrender of Premises; Holding Over . . . . . . . . . . . . . . . . 24
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26 Relationship of Parties . . . . . . . . . . . . . . . . . . . . . . 25
27 Successors and Assigns; Provisions Binding . . . . . . . . . . . . 25
28 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
29 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
30 Entire Agreement; Construction . . . . . . . . . . . . . . . . . . 27
31 Binding Arbitration . . . . . . . . . . . . . . . . . . . . . . . . 27
32 Choice of Law; Jurisdiction . . . . . . . . . . . . . . . . . . . . 28
33 Joint Preparation . . . . . . . . . . . . . . . . . . . . . . . . . 29
34 Time Is of the Essence . . . . . . . . . . . . . . . . . . . . . . 29
35 Term Renewal . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
EXHIBIT A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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L E A S E
THIS LEASE made and entered into as of the 26th day of February, 1997,
between RECHSTEINER/PAPETTI, ET AL, an Iowa general partnership, having its
principal office at One Papetti Plaza, Elizabeth, New Jersey 07027 (hereinafter
called "Landlord") and MICHAEL FOODS, INC., a Delaware corporation, having its
principal office at 5353 Wayzata Boulevard, Suite 324, Minneapolis, Minnesota
55416 (hereinafter called "Tenant").
A. Landlord is the owner of certain land and improvements more
particularly described on Exhibit A attached hereto (the "Real Estate").
B. Tenant desires to lease from Landlord, and Landlord is willing to
lease to Tenant the Real Estate and improvements thereon upon and subject to
the terms, provisions and conditions of this Lease.
NOW THEREFORE, Landlord and Tenant, for and in consideration of the rents,
agreements, terms, covenants and conditions hereinafter mentioned and hereby
agreed to be paid, kept and performed by Landlord and Tenant, their legal
representatives, successors and assigns, do hereby mutually agree as follows:
Article 1
Leased Premises; Lease Term
Upon and subject to the agreements, terms, covenants and conditions
hereinafter set forth, Landlord hereby leases to Tenant, and Tenant hereby
rents and leases from Landlord, the Real Estate, together with any and all
buildings, fixtures, structures and other improvements located thereon
(collectively with the Real Estate, the "Leased Premises"), subject to existing
restrictions, covenants, easements, rights and encumbrances of record.
TO HAVE AND TO HOLD for a term commencing on the date hereof and ending on
midnight of the day preceding the tenth (10th) annual anniversary of the "Rent
Commencement Date" as hereinafter defined (the "Lease Term") unless sooner
terminated or extended as herein provided. The "Rent Commencement Date" shall
mean March 1, 1997.
Article 2
Rent Payments; Net Lease
Tenant, during the Lease Term, will pay to Landlord an annual rental of
Twenty-Four Thousand Dollars ($24,000.00) in equal monthly installments of Two
Thousand Dollars ($2,000.00) in advance on or before the first day of each
calendar month. Therent for any partial month at the commencement hereof shall
be prorated and paid upon Tenant's execution of this Lease. Landlord may
assess a
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charge of five percent (5%) of the monthly rent installment due for any monthly
payment that is received more than five (5) days after it is due.
Tenant will pay to Landlord the rent herein reserved, without prior demand
or notice and without any setoffs, abatements, or deductions whatsoever, at the
office of Landlord or at such other place as Landlord shall designate in
writing. All other sums that may become due or be payable to Landlord
hereunder shall be paid at the time and in the manner herein provided at the
office of Landlord. All of such other sums so to be paid may, at Landlord's
option, be deemed to be additional rent to be added to any fixed rent then due
or thereafter falling due, and in the event of non-payment, Landlord shall have
all the rights and remedies herein provided.
If Tenant fails the net worth requirement of Article 13, then Tenant shall
deliver to Landlord the sum equal to one month's base rent as security payment
for the performance by Tenant of every covenant and condition of this Lease.
If Tenant shall default with respect to any covenant or condition of this
Lease, including, but not limited to, the payment of rent, Landlord may apply
the whole or any part of such security payment to the payment of any sum in
default or any other sum which Landlord may be required to spend by reason of
Tenant's default, and Tenant shall thereafter upon demand of Landlord fully
restore the original amount of the security deposit. After all of the Tenant's
obligations under this Lease shall have been satisfied, the security payment or
any remaining balance thereof shall be returned to Tenant. In the event of a
bona fide sale of the property of which the Leased Premises are a part,
Landlord shall have the obligation to transfer such security to the purchaser
to be held by such purchaser under the terms of this Lease, and Landlord shall
be released from all obligation and liability for the return of such security
to Tenant provided such transferee assumes such obligation.
Tenant acknowledges that the rent and other payments to Landlord hereunder
are intended to be "net" to Landlord and that this Lease is a so called "triple
net" or "net net net" lease to Landlord.
Article 3
Use of Leased Premises
Tenant shall occupy the Leased Premises during the Lease Term for the
purposes set forth on Exhibit A hereto and for no other purpose or use without
Landlord's prior written consent. Tenant shall not use or occupy or permit the
Leased Premises or any part thereof to be used or occupied for any other
business, use or purpose without Landlord's prior written consent, which shall
not be unreasonably withheld. Tenant shall apply for, secure, maintain and
comply with all licenses, permits, or accreditations which may
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be required for the conduct by Tenant of the use of the Leased Premises, as
herein permitted.
Article 4
No Representations
Tenant is fully familiar with the physical condition of the Leased
Premises, and Tenant accepts and takes the Leased Premises in their "as is" and
"where is" condition. Landlord has made no representations whatsoever in
connection with the condition of the Leased Premises or any part thereof, and
Landlord shall not be liable for any latent or patent defects therein.
Article 5
Compliance with Laws; Insurance Regulations
Throughout the Lease Term, Tenant shall, at its sole cost and expense,
promptly observe and comply with all laws, ordinances, orders, regulations,
rules, standards and requirements of every government (whether federal, state
or local), municipality or other governmental authority, including but not
limited to CERCLA, RCRA, TOSCA, FIFRA, OSHA and SARA (as the same are commonly
referred to under the federal environmental laws), and the Americans with
Disabilities Act of 1990, as amended (the "ADA"), and including any agency or
department thereof, having jurisdiction over Tenant or the Leased Premises
(collectively, "Governmental Regulations"), and of the local fire insurance
rating organization, and of all insurance companies writing policies covering
the Leased Premises or any part thereof, relating to the Leased Premises, or
the facilities, fixtures or equipment therein, or the use and occupation or
franchises and privileges connected therewith; whether or not such laws,
ordinances, orders, regulations, rules or requirements shall necessitate
improvements, interference with the use and enjoyment of the Leased Premises,
replacements or repairs, extraordinary as well as ordinary, foreseen or
unforeseen, and whether the same now are in force or may, at any time in the
future, be enacted or directed; and Tenant shall pay all costs, expenses,
claims, fines, penalties and damages that may in any manner arise out of or be
imposed because of the failure of Tenant to comply with any of the foregoing.
Landlord, its agents and representatives, may at any time during the term
of the Lease enter upon the Leased Premises, or any part thereof, for the
purpose of determining and ascertaining the environmental status of the same,
including but not limited to the performing of environmental audits or surveys
of the condition of the Leased Premises; and may further video tape, from time
to time, the condition of the Leased Premises, or any building or other
improvements thereon, for the purpose of better assuring and determining
Tenant's fulfillment of its obligations hereunder.
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Tenant shall be responsible for and shall bear all costs and expenses
associated with any and all alterations to the Leased Premises, which may be
required by the ADA for the accommodation of disabled individuals who may be
employed from time to time by Tenant, or any disabled customers, clients,
guests, or invitees or sublessees. Tenant shall indemnify and hold Landlord
harmless from and against any and all costs incurred arising from the failure
of the Leased Premises to conform with the ADA, including the cost of making
any alterations, renovations or accommodations required by the ADA, or any
government enforcement agency, or any court, any and all fines, civil
penalties, and damages awarded against Landlord resulting from a violation or
violations of the ADA, and all reasonable legal expenses and court costs
incurred in defending claims made under the ADA, including reasonable
attorneys' fees.
Tenant shall not (i) use, store, generate, treat, sell or dispose in, on
or about the Leased Premises, any "Hazardous Substances" (hereinafter defined),
or (ii) permit the use, storage, generation, treatment, selling or disposal in,
on or about the Leased Premises of any Hazardous Substances, except Hazardous
Substances in such amounts and of such types that are commonly and customarily
used in compliance with Governmental Regulations in the operation, cleaning and
maintenance of Tenant's business operated in the ordinary course. "Hazardous
Substances" or "Hazardous Substance" as used in this Lease shall mean any
substances, waste or substance now or hereafter designated as, or containing
components designated as, hazardous, dangerous, toxic or harmful and/or subject
to any Governmental Regulations, including, without limitation, asbestos in any
form, urea formaldehyde foam insulation, transformers or other equipment which
contains dielectric fluid or other fluids containing levels of polychlorinated
biphenyls in excess of fifty (50) parts per million and petroleum products in
any form. Tenant shall (i) promptly comply with all Governmental Regulations
now or hereafter pertaining to the use, discharge, handling, transportation,
disposal, treatment, generation, storage, sale or presence on the Leased
Premises of Hazardous Substances; and (ii) allow Landlord or Landlord's agents
or representatives to enter onto the Leased Premises at all times to check
Tenant's compliance with all applicable Governmental Regulations regarding
Hazardous Substances should Landlord have a reasonable belief that Tenant is
not in compliance with all applicable Governmental Regulations regarding
Hazardous Substances. If Tenant is found to not be in compliance with all
applicable Governmental Regulations regarding Hazardous Substances, all
reasonable costs incurred by Landlord and associated with Landlord's inspection
of the Leased Premises and Landlord's monitoring of Tenant's compliance with
this Article, including Landlord's reasonable attorneys' fees and costs shall
be deemed additional rent and shall be due and payable to Landlord immediately
upon demand by Landlord. Tenant shall indemnify, defend and save Landlord, its
officers, directors, shareholders, managers, agents and employees harmless from
and against any and all damages, penalties, costs and other liabilities
(including Landlord's attorneys' fees and costs and the cost of any remedial
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or abatement activities), arising during the term of this Lease or anytime
thereafter, directly or indirectly, from the use, discharge, handling,
transportation, disposal, treatment, generation, storage, existence or sale of
Hazardous Substances, during the term of this Lease in, on or about the Leased
Premises except to the extent such use, discharge, handling, transportation,
disposal, treatment, generation, storage, existence or sale of Hazardous
Substances resulted solely from the actions of Landlord. Tenant's obligations
under this Article shall survive the termination of this Lease.
Tenant shall, at Tenant's sole expense, comply with all laws, rules,
regulations, requirements, standards and ordinances enacted or imposed by any
governmental unit having jurisdiction over Tenant, the Leased Premises, signage
at the Leased Premises or Tenant's business. Tenant shall not use or occupy
the Leased Premises nor permit its use or occupancy for any unlawful use or
purpose, nor for any purpose which may be hazardous on account of fire,
environmental concerns or otherwise, nor for any use or purpose which might
render Landlord's insurance on the Leased Premises void.
Tenant agrees that if its storage, accumulation, transportation, treatment
or disposal of such Hazardous Substances results in (i) contamination of the
soil or surface or groundwater or (ii) loss or damage to any person(s) or
property, Tenant shall (a) notify Landlord immediately of any contamination,
claim of contamination, loss or damage, (b) proceed with due diligence to clean
up any such contamination in full compliance with all applicable federal, state
and local statutes, regulations and standards, and (c) indemnify, defend and
hold Landlord harmless from and against any and all claims, suits, causes of
action, penalties, fines, costs and fees, including attorney's fees, arising
from or connected with any such contamination, claim of contamination, loss or
damage. The foregoing provision shall survive the termination of the Lease.
The parties hereto shall use their best efforts to resolve any disputes
regarding the origin of any contamination or claim of contamination or the
responsibility as between Landlord and Tenant of clean up of any such
contamination or claim of contamination. Landlord and Tenant agree that if
they are unable to resolve such a dispute, then the provisions of Article 31
governing resolution of disputes shall apply. The parties agree that the
arbitrator shall be retained only to resolve the dispute and in no event will
be retained by either party to conduct any resulting cleanup or remediation of
any suspected release of hazardous waste.
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To the extent applicable, Tenant at its cost and in a timely manner shall
(i) comply with the Iowa Administrative Code in filing a "Groundwater Hazard
Statement" pursuant to Rules 561-9.1(558) and 561-9.2(558); (ii) pay all fees,
charges and costs imposed or assessed by the state for underground storage
tanks (See Iowa Admin. code r. 591-6.1(424) through 591-6.17(424)); (iii) pay
any "annual storage tank management fee" (See Section 455B.479 of Iowa Code)
and maintain the required evidence of financial responsibility (See Iowa Admin.
Code r. 567- 136.1(455B) to .24(455B)); and (iv) comply with the requirements
of Sections 455B.101 through 455B.701,inclusive, and Sections 455E.1 through
455E.11, inclusive, of the Iowa Code and regulations promulgated thereunder.
The enumeration of specific state statutes and regulations above shall in no
way limit the obligation of Tenant to otherwise comply with all other state
laws and regulations applicable to it, and Tenant expressly covenants to so
comply at all times and in all material respects during the term of this Lease.
Article 6
Utilities
Tenant shall make application for and arrange for the installation of all
utility meters or other devices as it may deem necessary for its purposes, and
Tenant shall be solely responsible for and promptly pay, as and when the same
become due and payable, all charges for water, sewer, sprinkler, electricity,
gas, telephone or other communication, fire or burglar alarm systems, and any
other utility or service supplied, used or consumed in connection with the
Leased Premises. Tenant shall use any utilities supplied to or serving the
Leased Premises in accordance with the regulations of the public utility
company or the governmental agency supplying the same, and Tenant shall not at
any time overburden or exceed the capacity of the mains, feeders, ducts,
conduits or other facilities by which such utilities are supplied to,
distributed in or serve the Leased Premises. Landlord shall not be liable in
damages or otherwise for any interruption in the supply of any utility or
service to the Leased Premises, nor shall any such interruption constitute any
ground for constructive eviction or an abatement of any of the rents reserved
hereunder.
Article 7
Repair, Maintenance and Replacement
Tenant, at its sole cost and expense, shall take good care of the Leased
Premises and of all buildings, structures, improvements, fixtures and equipment
now or hereafter located thereon, interior and exterior, and keep the same and
all parts thereof, including without limiting the generality thereof, the roof,
roof membrane and subroofing, foundations, exterior walls, parking areas, the
grounds, landscaped areas, (grass cutting, lawn
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and shrubbery maintenance, tree and plant watering and care), drainage ditches,
and swales, gutters, downspouts, glass, structural and interior and exterior
portions of the buildings and the plumbing, sprinkler system, heating, air
conditioning, wiring and other systems therein and facilities thereof and all
sidewalks, parking areas, driveways, passageways and alleys adjacent thereto
and other appurtenances thereunto belonging, and all fixtures, machinery and
equipment which constitute any part of the Leased Premises, together with any
and all alterations, additions and improvements therein and thereto, in at
least as good order and condition as exists on the date hereof, suffering no
waste or injury; and shall, at Tenant's sole cost and expense, perform all
maintenance and promptly make all needed repairs and replacements,
extraordinary as well as ordinary, structural or otherwise, foreseen or
unforeseen, in and to any of the foregoing and the buildings, structures or
improvements now or hereafter located thereon, including streets, sidewalks,
curbs and gutters, vaults, water, sprinkler systems, sewer and gas connections,
plumbing, pipes and mains, and all other fixtures, machinery and equipment
(including the lighting, electrical, heating, ventilation and air-conditioning
systems) now or hereafter belonging to or connected with the Leased Premises or
used in their operation. All such maintenance, repairs and replacements shall
be of first-class quality sufficient for the proper maintenance and operation
of the Leased Premises. Tenant shall keep and maintain the Leased Premises in
a clean and safe condition, and Tenant shall not permit the accumulation of
waste or refuse matter, nor permit anything to be done or allow any condition
to exist which would invalidate or prevent the procurement of any insurance
policies which may at any time be required pursuant to the provisions of this
Lease. Tenant shall not obstruct or permit the obstruction of any parking
areas, streets or sidewalks located on or adjoining the Leased Premises, and
shall keep such parking areas, streets and sidewalks free of snow and ice.
In addition, Tenant shall, during the term of this Lease, perform the
periodic preventive maintenance recommended by such systems' manufacturers.
Both maintenance and preventive maintenance shall be performed by such
contractors as are recommended by Landlord or such other entities as are
mutually agreed upon by the parties hereto. Tenant shall, on January 1 of each
year while Tenant is in occupancy of the Premises, provide Landlord with
evidence of an executed preventive maintenance contract for all mechanical
equipment (HVAC) provided. Tenant shall pay for the annual mechanical
equipment inspection fees, if any, imposed by any governmental authority.
Tenant agrees to keep the interior of the Leased Premises, including all
plate glass windows, doors, dock bumpers, levelers, and seals in good repair as
well as the floors and floor drains.
Landlord reserves the right to take video footage of the condition of the
Leased Premises as of the Commencement Date, a
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copy of which shall be provided to Tenant and shall be an exhibit hereto.
On the default of Tenant of its obligations to maintain and repair the
Leased Premises as set forth above for a period of fifteen (15) days after
written notice from Landlord demanding cure of same, Landlord may, but shall
not be required to, cause all required maintenance, repairs or replacements to
be made, for Tenant's account, and Tenant shall promptly pay Landlord all costs
incurred plus an administrative fee of fifteen percent (15%) of such costs and
said amount shall constitute and be collectible as additional rent hereunder.
Article 8
Alterations
Tenant shall not make any exterior or structural alterations,
improvements, or additions to the Leased Premises in excess of $125,000 without
obtaining Landlord's prior written consent, which consent shall not be
unreasonably withheld. Such exterior or structural alterations, improvements,
or additions, if consented to by Landlord, shall be made under the supervision
of an architect or engineer reasonably satisfactory to Landlord and in
accordance with plans and specifications approved by Landlord. Tenant shall
not make any interior or nonstructural alterations, improvements, or additions
to the Leased Premises in excess of $125,000 without obtaining Landlord's prior
written consent which shall not be unreasonably withheld.
All alterations, improvements, and additions made to the Leased Premises
shall be effected with due diligence, in a good and workmanlike manner
employing appropriate new materials and in compliance with all applicable
governmental and insurance requirements and shall be promptly and fully paid
for by Tenant; and no alterations, improvements, or additions made to the
Leased Premises shall change the general character of the Leased Premises,
impair its usefulness, or reduce the fair market value thereof below its value
immediately before such alteration, improvement, or addition. Prior to
proceeding with any alteration, improvement or addition requiring Landlord's
consent hereunder, Tenant shall at Landlord's request furnish Landlord with
satisfactory evidence of worker's compensation insurance in statutory limits of
Tenant, or any contractor or subcontractor performing work for Tenant on the
Leased Premises, as well as satisfactory evidence of all insurance coverage
required to be maintained by Tenant under this Lease. In addition, Landlord
may require that before commencement or continuance of such alteration,
improvement or addition, Tenant furnish Landlord with such security or
performance bond as Landlord shall request in order to assure completion of
same and protect against any and all liens, chattel mortgages and security
interests arising in connection therewith.
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Article 9
Covenant Against Liens
Tenant shall do all things necessary to prevent the filing of any
mechanics', materialmen's or other liens against the Leased Premises by reason
of any work, labor, services or materials performed or supplied or claimed to
have been performed or supplied to Tenant, or anyone holding the Leased
Premises, or any part thereof, through or under Tenant. Tenant shall pay and
obtain a release of record of any such lien, by payment thereof or if Tenant
intends to contest the lien by filing a bond or other security or collateral
reasonably acceptable to Landlord, within thirty (30) days after the date of
filing thereof, failing which, and in addition to any other rights of Landlord
hereunder, Landlord shall have the right to vacate and release the same and
charge the cost thereof (including attorneys' fees) to Tenant, such charge to
be due and payable upon demand. Tenant shall defend, indemnify and hold
Landlord harmless from and against any and all liability, loss, damage, cost
and expense (including court costs and attorneys' fees) arising out of or in
connection with any such lien or the enforcement or removal thereof.
Article 10
Landlord's Right of Entry
Landlord and Landlord's employees, agents and contractors, and their
respective employees and agents, shall be permitted during the Lease Term to
inspect the Leased Premises, after first giving Tenant such notice as is
reasonable under the circumstances, (except in the case of an emergency when
prior notice shall not be required), during reasonable business hours (except
in the case of an emergency) for the purposes of (a) ascertaining the condition
of the Leased Premises; (b) making semi-annual mutual inspections; (c)
inspecting any replacements or repairs or the performing any other act as may
be required of Landlord or Tenant under the terms of this Lease; and (d)
showing the Leased Premises to prospective tenants, purchasers or mortgagees.
Article 11
Taxes
Tenant shall, (subject to Tenant's right to contest as set forth
hereafter), in all instances, pay and discharge at its sole expense, all
duties, taxes, assessments, impositions, or charges of any kind, license and
permit fees, and other governmental levies and charges of every kind and nature
whatsoever, general and special, extraordinary as well as ordinary,
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whether foreseen or unforeseen, which shall during the Lease Term be laid,
levied, assessed, imposed, become due and payable, or liens upon, or arise in
connection with the ownership, use, occupancy or possession of the Leased
Premises, or any part thereof, or any appurtenances thereto, or the streets,
sidewalks, vaults, curbs and gutters adjoining the Leased Premises, or the
leasehold estate hereby created, by virtue of any present or future law,
ordinance, order, regulation, rule or requirement of any government (whether
federal, state or local), municipality or other governmental authority,
including any agency or department thereof. In addition, Tenant shall pay and
discharge any and all taxes and other charges levied, assessed or imposed upon
the fixtures, furnishings, equipment and all other personal property of Tenant
in, upon or about the Leased Premises, and any license or excise covering
business conducted in the Leased Premises. The duties, taxes, assessments,
impositions, charges, fees and payments above-described are sometimes referred
to herein collectively as "Impositions". Nothing contained herein shall
require Tenant to pay any inheritance, estate, succession, transfer, gift,
franchise, corporation, income or profit tax or capital levy that is or may be
imposed upon Landlord, unless such described tax shall be levied upon the rent
herein reserved, or otherwise imposed on Landlord, in replacement of or
substitution for any Impositions as are presently levied, assessed or imposed.
All Impositions shall be paid by Tenant to the governmental authorities
charged with the collection thereof on or before the last day upon which the
same may be paid without interest or penalty for the late payment thereof and
Tenant shall forward a copy of the paid tax bill to Landlord within thirty (30)
days of such payment to the applicable governmental authority. In the case of
Impositions which may be payable in installments, installments shall be payable
within the longest period provided by law, be prorated with Tenant charged
during the term hereof, and Tenant shall only be obligated to pay such
installments as the same fall due during the Lease Term.
Any real estate taxes or water and sewer rents imposed for the applicable
fiscal tax period in which the Lease Term begins or ends shall be prorated and
adjusted between Landlord and Tenant.
Landlord shall forthwith forward to Tenant all applicable tax bills as
received by Landlord or cause the same to be directly sent to Tenant and Tenant
shall provide to Landlord within sixty days (60) after the due date for payment
of such Imposition, reasonable evidence that such Imposition has been timely
paid. If the present method of assessing, levying or charging general public
revenue or taxes against or upon the Leased Premises shall be changed during
the term of this Lease so that such taxes, assessments or charges, instead of
being assessed or levied directly against the land or improvements constituting
the Leased Premises, be levied, assessed or charged in lieu thereof, in whole
or in part, against Landlord's reversionary interest in the same or against the
rent or income arising from the use or occupancy of the
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Leased Premises, then in such event, Landlord shall forthwith timely advise
Tenant of each such change, and Tenant shall pay every such Imposition so made,
subject always to Tenant's right to contest such change as permitted hereafter.
All such Impositions for any fractional year within the term of this Lease
shall be prorated between Landlord and Tenant on a pro rata basis, with Tenant
paying only such portions thereof which are properly allocable to the term of
this Lease.
Tenant shall have the right, in its or Landlord's name, to contest in good
faith the validity of any Imposition, or the method of assessment thereof,
which Tenant is required to bear, pay and discharge hereunder, and for that
purpose shall have the right to institute such proceedings in name of Landlord
as it may deem necessary, provided that expenses incurred by reason thereof
shall be paid by Tenant. Tenant further agrees that it shall diligently
prosecute such contest, at all times effectually stay or prevent any official
or judicial sale of the Leased Premises, under execution or otherwise, and pay
any final judgment enforcing such contested Imposition and thereafter promptly
procure record satisfaction or release thereof. Tenant further agrees that if
it becomes necessary to institute an action in a court of competent
jurisdiction in order to contest such Imposition then, in that event, it shall
give Landlord at least ten (10) days' prior written notice of its intention to
institute such action and at the same time furnish Landlord a bond in such
amount as Landlord may designate, executed by a corporate surety licensed to do
business in the state where the Leased Premises are located and acceptable to
Landlord, indemnifying and protecting Landlord and any other person now or
hereafter having any interest, whether as security for indebtedness or
otherwise, in the Leased Premises from and against all liability, loss, damage,
cost and expense of whatever kind or nature growing out of or in any way
connected with the fee, tax, assessment or other charge complained of or the
contest thereof.
Article 12
Insurance
Tenant agrees to secure, maintain and keep in force at all times during
the Lease Term, at Tenant's sole cost and expense, the following policies of
insurance:
(a) Direct Property Damage Insurance covering the building and other
improvements (including leasehold improvements) on the Leased Premises to
the extent of one hundred percent (100%) of the full replacement cost
thereof, exclusive of the cost of excavations, foundations, and footings
and all improvements and fixtures required to be insured by Tenant
pursuant to Article 12(c) hereof, providing protection against perils that
are covered under standard insurance industry
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practices within the classification of all risk property damage insurance.
Such insurance shall name as an additional insured Landlord and any other
parties in interest as may be from time to time designated in writing by
notice from Landlord to Tenant. In addition, such insurance shall be made
payable to Tenant, Landlord and such additional parties in interest from
time to time designated by Landlord to Tenant, as their interest may
appear.
(b) Comprehensive General Liability Insurance covering the Leased
Premises and Tenant's use thereof against claims for bodily injury or
death, property damage or personal injury, however caused, with a combined
single limit of not less than two million dollars ($2,000,000) for bodily
injury and property damage. Such insurance shall, in addition to premises
and operations liability, include contractual liability insurance to cover
all contractual liability assumed by Tenant under or by virtue of this
Lease (including, without limitation, Article 15 hereof), broad form
property damage, loss of rental income, Product and Completed operations
liability. In addition, motor vehicle liability coverage with not less
than $1 million dollar policy limits shall be kept in force by Tenant at
all times during the term of this Lease. All such insurance shall name as
an additional insured Landlord and any other parties in interest as may be
from time to time designated in writing by notice from Landlord to Tenant.
In addition, such insurance shall be made payable to Tenant, Landlord and
such additional parties in interest from time to time designated by
Landlord to Tenant, as their interest may appear.
Tenant shall further maintain, at its sole cost during the term of
this Lease Excess or Umbrella Liability insurance with minimum limits of
$10 million; naming Landlord as an additional insured.
(c) [RESERVED]
(d) Comprehensive Boiler and Machinery insurance coverage, covering
all boilers, pressure vessels, production equipment, air-
conditioning equipment and electrical equipment which serve the
Leased Premises, with per occurrence limits of not less than two
million dollars ($2,000,000).
(e) Workers' Compensation Insurance (including occupational disease
insurance) as may be from time to time required by the laws of the state
in which the Leased Premises are located;
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(f) Employers' Liability Insurance with a per occurrence limit of
not less than $500,000;
All such policies of insurance shall be issued by insurance companies
licensed and admitted to do business in the State in which the Leased Premises
are located, which are reasonably acceptable to Landlord and having a rating of
A+ or better. In addition, all such policies of insurance shall contain an
endorsement providing that such insurance may not be materially changed,
amended or cancelled except after thirty (30) days' prior written notice from
the insurance company to Landlord, sent by registered mail or nationally
recognized overnight courier (e.g. Federal Express). The original policy or
policies shall be made available, from time to time, upon request of Landlord
to review and/or copy and Tenant shall deliver to Landlord together reasonably
satisfactory evidence of payment of the premium thereof, on or before the
commencement date of the Lease Term. Prior to expiration of each policy term,
Tenant shall deliver to Landlord written proof of renewal or continuation of
the policies and will deliver to Landlord certificates of insurance within 20
days after renewal or issuance of the policies. If Tenant at any time fails or
refuses to procure and maintain the required amount of insurance, then Landlord
may, immediately and without notice to Tenant, obtain same for and on behalf of
Tenant and charge the cost thereof to Tenant, such charge to be due and payable
upon demand.
Except for the intentional acts of the Landlord, Tenant, and all parties
claiming under or through Tenant, hereby expressly releases and discharges
Landlord from any claim or liability, whether based on negligence or any reason
whatsoever, for any personal injury, property damage, or other loss covered by
Tenant's insurance. The aforesaid release shall apply only when permitted by
the applicable policy of insurance. All policies of Tenant shall contain an
endorsement containing an express waiver of any right of subrogation by the
insurance company against Landlord, provided that this waiver shall not be
applicable if it has the effect of invalidating any insurance coverage of
Landlord or Tenant, or if the applicable insurance policies do not contain a
clause to the effect that this waiver shall not affect the right of the insured
to recover under such policies.
Article 13
Escrow
Notwithstanding the provisions of this Lease, if Tenant, or any successor
or assignee then a tenant under this Lease as the Tenant, shall fail at any
time during the term of this Lease to maintain a net worth in excess of one
hundred million dollars (as determined in accordance with generally accepted
accounting principles), then Landlord may upon written notice to Tenant require
Tenant for the remainder of the Lease Term, (notwithstanding a subsequent net
worth in excess of one hundred million dollars) to (i) deliver the security
deposit required under
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Article 2; (ii) carry a deductible not greater than $10,000 under the property
damage insurance described in Article 12(a); and (iii) pay to Landlord for each
calendar year during the Lease Term the amount of the Impositions imposed upon
the Leased Premises and the amount of premiums for all insurance policies
required to be provided by Tenant hereunder, in equal monthly installments on
the first day of each month during the Lease Term. Such monthly payments shall
in the first instance be reasonably estimated by Landlord based on the
Impositions and premiums paid for the prior year, with appropriate adjustments
made at least annually thereafter. No interest shall be paid by Landlord to
Tenant on such monthly payments, but they will be kept by Landlord in a
separate escrow account, the funds thereof shall be employed by Landlord to pay
Impositions and premiums as they mature. If at any time the funds held by
Landlord shall be insufficient to pay any and all Impositions and premiums as
the same shall mature, Tenant shall, within ten (10) days after notice thereof
from Landlord, deposit with Landlord an amount sufficient to make up any
deficiency therefor. Tenant represents that its present net worth is in excess
of one hundred million dollars.
Article 14
Indemnity
Tenant hereby agrees to defend, pay, indemnify and save free and harmless
Landlord, its officers, directors, agents and employees, from and against any
and all claims, demands, fines, suits, actions, proceedings, orders, decrees
and judgments of any kind or nature by or in favor of anyone whomsoever and
from and against any and all costs and expenses incurred by Landlord, including
attorneys' and other professional fees, resulting from or in connection with
any of the following unless the same are caused by Landlord's intentional acts:
(a) any accident, bodily injury, death, personal injury of any kind, or
property damage arising, directly or indirectly, out of or from or on account
of any occurrence in, upon, at or about the Leased Premises and the adjoining
parking areas, sidewalks, streets, vaults and passageways; (b) any accident,
bodily injury, death, personal injury or property damage arising, directly or
indirectly, in connection with Tenant's operation and conduct of business in
the Leased Premises; (c) any use, occupancy, nonuse or condition of the Leased
Premises; and (d) any failure on the part of Tenant to perform or comply with
any of the agreements, terms, covenants and conditions of this Lease.
Except for the intentional acts of Landlord, Landlord shall not be liable
for any damage or injury to the person, business (or any loss of income
therefrom), goods, wares, merchandise or other personal property of Tenant,
Tenant's employees, agents, invitees and customers, or any other occupant of
the Leased Premises; nor for any failure of a water supply, gas, electric
current or any other utility, nor for any damage occasioned by failure to keep
the building, property or Leased
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Premises in repair. Landlord shall not be liable to Tenant for any damage to
person or property done or occasioned by or from electric current, plumbing,
gas, water, steam or sewage, odors, or the bursting, leaking, running or
failure of operation of any radiator, tank, water closet, washstand, waste
pipe, air conditioning or any other apparatus in, above, upon or about the
building, property or Leased Premises, nor for damage or injury to person or
property occasioned by water, snow, or ice being upon any roof, sidewalk or
entrance way, or being upon or coming through such entrance way or any
skylight, trap door or any other opening in the building, property or Leased
Premises, nor for loss resulting from theft or mysterious disappearance, action
of the elements, or any interference with light or air, nor for any damages
arising from the omission, action or negligence of Tenant, co-Tenants or other
occupants of the building or of any owners or occupants of adjacent or
contiguous property or acts of negligence by Landlord.
In case any action, suit or proceeding is brought against Landlord by
reason of any such occurrence as described in this Article 14, Tenant or
Tenant's insurer, upon Landlord's request, will at no expense to Landlord
resist and defend such action, suit or proceeding or cause the same to be
resisted and defended by counsel designated by Tenant and approved by Landlord.
The obligations of Tenant under this Article shall survive any termination of
this Lease.
Article 15
Damage or Destruction
In the event of any damage or loss to the Leased Premises, Tenant shall
give immediate written notice thereof to Landlord. If the building on the
Leased Premises shall at any time be damaged or destroyed by fire or other
cause whatsoever, Tenant shall promptly repair or rebuild same at Tenant's
expense, so as to make the building at least equal in value to the building
existing immediately prior to such occurrence and as nearly similar to it in
character as shall be practicable and reasonable; and Tenant shall do so, even
though the proceeds of any insurance policies shall be insufficient to
reimburse Tenant therefor.
There shall be no abatement of rent pending any repairs or rebuilding, nor
shall Tenant's obligations hereunder be terminated, notwithstanding any
destruction or damage to the Leased Premises.
Before beginning such repairs or rebuilding, or letting any contracts in
connection therewith, Tenant shall submit for Landlord's approval, which
approval shall not be unreasonably withheld or delayed, complete and detailed
plans and specifications thereof and a listing of all contractors and
subcontractors intended to perform any part of the work. Promptly after
receiving Landlord's approval, Tenant shall begin such repairs or rebuilding
and shall prosecute the same to completion with due diligence. All
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work shall be done in a good and workmanlike manner employing appropriate new
materials in accordance with the plans and specifications approved by Landlord,
and in compliance with all applicable governmental and insurance requirements.
Landlord, its employees, agents and authorized architects and engineers shall
have the right, at any time during the performance of the work, to inspect the
building and the contracts, plans, specifications, drawings and all other
records of Tenant, its architect, contractors and subcontractors, relating to
such repairs or rebuilding. If Landlord or its authorized representative shall
determine that the work is not being done in accordance with the plans and
specifications approved by Landlord, then upon notice to Tenant specifying any
deficiency, Tenant shall take all steps necessary to promptly correct any such
deficiency. The reasonable charges of any architect or engineer of Landlord
employed to pass upon any plans and specifications and to supervise and approve
any construction shall be paid by Tenant as a cost of the repair or rebuilding.
Notwithstanding the foregoing in this Article 15, in the event of a
casualty for which the amount of damages to the improvements of the Leased
Premises exceeds an amount equal to eighty percent (80%) of the assessed fair
market value of such improvements on the Leased Premises (as determined by the
Real Estate Tax Assessor's office of the county in which the Leased Premises is
located), immediately prior to such casualty; then Landlord may elect within
sixty (60) days of such casualty upon written notice to Tenant to either (i)
require Tenant to rebuild as set forth above in Article 15; or (ii) terminate
the Lease and retain the insurance proceeds; whereupon neither party shall have
any further liability or obligation to the other, except as otherwise provided
elsewhere in this Lease.
Article 16
Condemnation
If the whole of the Leased Premises shall be acquired or taken by eminent
domain for any public or quasi-public use or purpose, or by private purchase in
lieu thereof, then this Lease and the Lease Term hereof shall automatically
cease and terminate as of the date of title vesting in such proceedings. If
only a part of the Leased Premises shall be so acquired or taken and the
remainder is untenantable for the purpose for which Tenant has been using the
Leased Premises then either party shall have the option to terminate this Lease
upon ninety (90) days prior written notice to the other. If only a part of the
Leased Premises shall be so acquired or taken and the remainder is tenantable
for the purpose for which Tenant has been using the Leased Premises, then this
Lease and all of the terms and provisions hereof shall continue in full force
and effect, except that the net annual rental shall be reduced in the same
proportion that the floor area of the building forming a part of the Leased
Premises taken bears to the original floor area of such building demised
hereunder, and Landlord shall,
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upon receipt of the award in condemnation, make all necessary repairs or
alterations to the building so as to constitute the remaining premises a
complete architectural unit; provided, however, that Landlord, in any event,
shall not be required to spend for such repair and alteration work an amount in
excess of the respective amounts received by Landlord (free and clear of all
claims of mortgagees and ground or underlying lessors and Landlord's costs and
professional fees from the action) as damages for the taking of such part of
the Leased Premises. The taking or condemnation of any parking areas or other
open space of the Leased Premises or any sale, grant, dedication or taking of
peripheral or perimeter parts or portions of the Leased Premises for road
widening or road improvement purposes or for the installation of utilities
shall not affect this Lease and Tenant shall not, in any such event, be
entitled to compensation, diminution or abatement of any rent or other charges.
All damages or compensation awarded or paid for any taking or
condemnation, whether for the whole or a part of the Leased Premises or any
part of the land, buildings and improvements constituting the Leased Premises,
shall belong to and be the property of Landlord without any participation by
Tenant, whether such damages or compensation shall be awarded or paid for
diminution in value of the fee or any interest of Landlord in any ground or
underlying lease covering the Leased Premises or in the leasehold estate
created hereby. Tenant hereby expressly waives and relinquishes all claims to
such award or compensation, or any part thereof, and of the right to
participate in any such condemnation proceedings against the owners of any
interest in the Leased Premises; provided, however, that nothing herein
contained shall be construed to preclude Tenant from prosecuting any claim
directly against the condemning authority, but not against Landlord, for the
value of or damages to and/or the cost of removal of Tenant's property upon the
expiration of the Lease Term, as may be recoverable by Tenant in Tenant's own
right so long as no such claim shall diminish or otherwise affect Landlord's
award. Provided, however, that if as a result of such taking Tenant is
required to replace the parking area or provide new access, in order to use the
Premises in substantially the same manner as before the taking, the cost
incurred by Tenant for such replacement shall be prorated against the rent
becoming due over the remainder of the Lease Term. Tenant shall provide
Landlord with written documentation of such costs reasonably acceptable to
Landlord prior to any such adjustment of rent. Landlord may also elect to
provide an adjacent replacement area, in lieu of the above remedy for Tenant.
Article 17
Mortgaging; Assignment; Subletting
Neither Tenant nor its legal representatives or successors in interest, by
operation of law or otherwise, shall assign, mortgage or otherwise transfer or
encumber this Lease or
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any interest therein, or sublet or otherwise permit the Leased Premises or any
part thereof to be used or occupied by others except (i) with the prior written
consent of Landlord, which shall not be unreasonably withheld, or (ii) to
another entity controlled by Tenant. Any consent by Landlord to any act of
mortgaging, assignment or subletting shall apply only to the specific action
authorized. Such consent shall not be construed as a waiver of the duty of
Tenant, its representatives, successors or assigns, to obtain Landlord's
consent to any other or subsequent mortgaging, assignment or subletting. Any
attempted mortgaging, assignment or subletting without Landlord's prior written
consent shall be void and be deemed an Event of Default hereunder. Any
mortgaging, assignment or subletting as permitted by (i) or (ii) above, will
not release or discharge Tenant from any liability whatsoever under this Lease,
and Tenant will remain liable for the performance and observance of each and
every agreement, term, covenant and condition of this Lease.
In the event that Tenant, upon Landlord's prior written consent, shall
sublet the Leased Premises for a rental in excess of the rent provided for
herein from Tenant to Landlord, then notwithstanding any other provision
contained in this Lease to the contrary, the rent provided for herein shall
automatically be increased during the term of such sublease to a sum equal to
the amount of rent payable under such sublease. In the event that Tenant shall
receive any valuable consideration for an assignment of the Tenant's interest
in this Lease, then, notwithstanding any other provision contained in this
Lease to the contrary, Tenant shall pay to Landlord as additional rent
hereunder the amount of consideration thereby received.
Landlord shall have the right to assign this lease at any time, upon
written notice to Tenant, whereupon Landlord shall be released from all further
or other obligations or liabilities subsequently arising from and after the
date of such assignment. Assignee will assume the Landlord's obligations under
the terms of the Lease. The Assignee of the Landlord shall have a net worth
equal to the then net worth of the Landlord as determined in accordance with
generally accepted accounting practices. Landlord shall provide Tenant with
written notice of any assignment of this Lease.
Article 18
Subordination and Attornment
The rights of Tenant under this Lease shall, at Landlord's election, be
subject and subordinate at all times to all ground leases and/or underlying
leases, if any, now or hereafter in force against the Leased Premises or any
part thereof, and to the lien of any mortgage or mortgages now or hereafter in
force against such leases and/or the Leased Premises, and to all advances made
or hereafter to be made upon the security thereof, and to all
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renewals, modifications, consolidations, replacements and extensions thereof.
The term "mortgages" as used in this Lease shall be deemed to include trust
indentures and deeds of trust. The aforesaid provisions shall be
self-operative upon notice of election by Landlord to Tenant and no further
instrument of subordination shall be required. Tenant hereby irrevocably
appoints Landlord attorney-in-fact for Tenant with full power and authority to
execute and deliver in the name of the Tenant any such instrument or
instruments.
Tenant agrees that in the event of a sale, transfer or assignment of
Landlord's interest in the Leased Premises, or in the event that any
proceedings are brought for the foreclosure of or exercise of any power of sale
under any mortgage affecting the Leased Premises, or if a deed in lieu thereof
be given, or in the event any ground or underlying lease is cancelled or
terminated, Tenant shall attorn to and recognize such transferee, purchaser,
mortgagee or other party in interest as Landlord under this Lease and to affirm
this Lease so long as such transferee agrees not to disturb Tenant's rights
under this Lease.
Article 19
Estoppel Certificates
Tenant agrees, at any time and from time to time, upon not less than ten
(10) days prior written notice from Landlord, to execute, acknowledge and
deliver to Landlord a statement in writing certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications
that the same is in full force and effect as modified and stating the
modifications), the dates to which the rent and other charges have been paid in
advance, if any, and such other matters pertaining to this Lease as may be
requested by Landlord. It is understood and agreed that Tenant's obligation to
furnish such estoppel certificate in a timely fashion is a material inducement
for Landlord's execution of this Lease. Tenant does hereby appoint Landlord as
its attorney-in-fact to execute any such estoppel certificate. It is intended
that any such statement delivered pursuant to this Article may be relied upon
by present or prospective mortgagees, purchasers, ground lessors or any
assignee of any of the foregoing in connection with Landlord's interest in the
Leased Premises.
Article 20
Quiet Enjoyment
Tenant upon paying the rents reserved and performing and observing all
other agreements, terms, covenants and conditions of this Lease on Tenant's
part to be performed and observed hereunder, shall peaceably and quietly have,
hold and enjoy the Leased Premises during the Lease Term, subject, nevertheless
to any ground leases, mortgages, agreements or encumbrances to which this Lease
is or may be subordinated.
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Article 21
Cure of Tenant's Default
If Tenant shall fail to make any payment or perform any act required
hereunder to be made or performed by Tenant hereunder, then Landlord may, but
shall be under no obligation to, after such notice to Tenant and expiration of
any applicable cure period as may be provided for under Article 22 of this
Lease, make such payment or perform such act with the same effect as if made or
performed by Tenant. Entry by Landlord upon the Leased Premises for such
purpose shall not waive or release Tenant from any default or obligation
hereunder. Tenant shall reimburse Landlord for all sums so paid and all costs
incurred, including attorneys' fees, upon Landlord's demand therefor.
Article 22
Default
If any one or more of the following events (herein referred to as an
"Event of Default") shall occur:
(a) if default be made in the due and punctual payment of any rent
or other charges, or any part hereof, payable to Landlord hereunder, when
and as the same shall become due, and such default shall continue for a
period of five (5) days;
(b) if this Lease be mortgaged, assigned or the Leased Premises or
any part thereof be sublet, either voluntarily or by operation of law,
without Landlord's prior written consent as set forth in Article 17
hereof;
(c) [RESERVED]
(d) if Tenant shall fail to observe, perform or comply with any of
the terms, covenants and conditions in this Lease other than those
provided in subparagraphs (a), (b) and (c) above, within thirty (30) days
after notice from Landlord specifying the nature of such default;
provided, however, that no Event of Default shall be deemed to occur so
long as the curing of such default reasonably may not be completed within
such thirty (30) day period and Tenant has commenced to cure such default
and thereafter with reasonable diligence pursues its efforts to cure and
does so cure within ninety (90) days;
(e) if Tenant shall file a voluntary petition in bankruptcy or shall
be adjudicated a bankrupt or insolvent, or shall file any petition or
answer seeking any reorganization, readjustment, liquidation, dissolution
or similar relief under any bankruptcy or
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insolvency statute or law of the United States or any State, or shall
seek or consent to or acquiesce in the appointment of any bankruptcy or
insolvency trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties or of the Leased Premises; or
(f) if within sixty (60) days after the commencement of any
involuntary proceeding against Tenant seeking any reorganization,
readjustment, liquidation, dissolution or similar relief under any
bankruptcy or insolvency statute or law, Tenant fails to secure a
dismissal and discharge thereof;
then and in any such event Landlord, at its option, may at any time thereafter
(in addition to and/or as an alternative to all other legal remedies):
(a) immediately terminate this Lease and Tenant's right to
possession of the Leased Premises; or
(b) terminate only the Tenant's right to possession of the Leased
Premises, without terminating this Lease or releasing Tenant in whole or
in part from Tenant's obligations hereunder for the full term hereof; or
(c) without terminating this Lease or Tenant's right to possession
of the Leased Premises, enter upon the Leased Premises and do and perform
whatever Tenant is obligated to do under the terms of this Lease.
In the event Landlord exercises its rights under subparagraph (a) or (b)
immediately above, Tenant shall quit and peacefully surrender the Leased
Premises to Landlord, and Landlord, upon or at any such expiration or
termination, may without further notice, enter upon and reenter the Leased
Premises and possess and repossess itself thereof, as provided by law,
dispossess Tenant and remove Tenant and all other persons and property from the
Leased Premises and may have, hold and enjoy the Leased Premises and the right
to receive all rental income of and from the same, and further, Landlord may
collect damages in accordance with the law.
If Tenant's right to possession of the Leased Premises shall be terminated
pursuant to this Article 22, by summary proceedings or otherwise, Landlord may
in its own name, as agent for Tenant if this Lease not be terminated, or if
this Lease be terminated, in its own behalf, enter into possession of and relet
the Leased Premises or any part thereof, or said premises with additional
premises, for such term or terms (which may be greater or less than the period
which would otherwise have constituted the balance of the Lease Term) and on
such conditions (which may include concessions, free rent and/or alterations of
the Leased Premises) as Landlord, in its uncontrolled discretion, may determine
and may collect and receive the rents therefor. Landlord
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shall in no way be responsible or liable for any failure to relet the Leased
Premises or any part thereof, or of any failure to collect any rent due upon
such reletting.
No such expiration or termination of this Lease, or termination of
Tenant's right of possession thereunder, shall relieve Tenant of its liability
and obligations under this Lease, unless otherwise agreed to in writing by
Landlord, whether or not the Leased Premises shall be relet. Upon an event of
default, Tenant shall pay Landlord the rent and all other charges required to
be paid hereunder by Tenant up to the time of such event. Thereafter:
(a) Tenant, until the end of the Lease Term, or what would have been
such term in the absence of any such event, shall be liable to Landlord as
damages for Tenant's default, the equivalent of the amount of the rent and
other charges which would be payable under this Lease by Tenant if this
Lease were still in effect, less the net proceeds of any reletting
effected pursuant to the provisions hereof, after deducting all of
Landlord's expenses in connection with such reletting, including, without
limitation, all repossession costs, brokerage and management commissions,
operating expenses, legal expenses, reasonable attorneys' fees, and
expenses of preparation of such reletting. Tenant shall pay such damages
(herein called "deficiency") to Landlord monthly on the days on which the
net rent would have been payable under this Lease if this Lease were still
in effect, and Landlord shall be entitled to recover from Tenant each
monthly deficiency as the same shall arise.
(b) At any time after the expiration or termination of this Lease,
in lieu of collecting any further monthly deficiencies as aforesaid,
Landlord shall be entitled to recover from Tenant, and Tenant shall pay to
Landlord, on demand, as liquidated damages and not as a penalty, an amount
equal to the difference between the total rental and other benefits which
would have accrued to Landlord under this Lease from the date of
termination to the date of the expiration of the original term demised and
the then fair and reasonable rental value of the Leased Premises for the
same period. Tenant shall remain liable for any monthly deficiencies not
previously recovered by Landlord. In the computation of such liquidated
damages, the difference between any installment of rent thereafter
becoming due and the fair and reasonable rental value of the Leased
Premises for the period for which such installment was payable shall be
discounted to the date of termination at the rate of not more than five
percent (5%) per annum.
If the Leased Premises or any part thereof be relet by Landlord for the
unexpired term of this Lease, or any part thereof,
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before presentation of proof of such liquidated damages to any court,
commission or tribunal, the amount of rent reserved upon such reletting shall
prima facie be the fair and reasonable rental value for the part or the
whole of the Leased Premises so relet during the term of the reletting.
Nothing herein contained shall limit or prejudice the right of Landlord to
prove for and obtain as liquidated damages by reason of such termination, an
amount equal to the maximum allowed by any statute or rule of law in effect at
the time when, and governing the proceedings in which, such damages are to be
proved, whether or not such amount be greater, equal to, or less than the
amount of the difference referred to above.
If this Lease be terminated by summary proceedings or otherwise, or if
Tenant's right to possession of the Leased Premises shall be terminated, and
whether or not the Leased Premises be relet, Landlord shall be entitled to
recover from Tenant, and Tenant shall pay to Landlord, in addition to any
damages becoming due under this Article 22, the following: an amount equal to
all expenses, if any, including reasonable attorneys' fees, incurred by
Landlord in recovering possession of the Leased Premises, (whether or not
litigation be commenced in aid thereof), and all costs and charges for the care
of said Leased Premises while vacant, which damages shall be due and payable by
Tenant to Landlord at such time or times as such expenses are incurred by
Landlord.
Tenant hereby expressly waives, so far as permitted by law, the service of
any notice of intention to reenter provided for in any statute and except as is
herein otherwise provided Tenant, for and on behalf of itself and all persons
claiming through or under Tenant (including any leasehold mortgagee or other
creditor), also waives any and all right of redemption or reentry or
repossession in case Tenant shall be dispossessed by a judgment or by warrant
of any court or judge or in case of reentry or repossession by Landlord or in
case of any expiration or termination of this Lease. The terms "enter,"
"reenter," "entry" or "reentry" as used in this Lease are not restricted to
their technical legal meanings.
Tenant hereby waives all right to trial by jury in any action or
proceeding hereafter instituted by Landlord against Tenant with respect to this
Lease or the Leased Premises. Tenant agrees not to interpose any counterclaim
of any nature or description in any action or proceeding. The foregoing,
however, shall not be construed as a waiver of Tenant's right to assert any
claim in a separate action or proceeding instituted by Tenant.
In the event of any breach or threatened breach by Tenant of any of the
agreements, terms, covenants or conditions contained in this Lease, Landlord
shall be entitled to enjoin such breach or threatened breach and shall have the
right to invoke any right and remedy allowed at law or in equity or by statute
or otherwise as though reentry, summary proceedings, and other remedies were
not provided for in this Lease.
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Article 23
No Waiver
No failure by Landlord to insist upon the strict performance of any
agreement, term, covenant or condition hereof or to exercise any right or
remedy consequent upon a breach thereof, and no acceptance of full or partial
rent during the continuance of any such breach, shall constitute a waiver of
any such breach or of such agreement, term, covenant or condition. No
agreement, term, covenant or condition hereof to be performed or complied with
by Tenant, and no breach thereof, shall be waived, altered or modified except
by a written instrument executed by Landlord. No waiver of any breach shall
affect or alter this Lease, but each and every agreement, term, covenant and
condition hereof shall continue in full force and effect with respect to any
other then existing or subsequent breach thereof.
Article 24
Remedies Cumulative
Each right and remedy provided for in this Lease shall be cumulative and
shall be in addition to every other right or remedy provided for in this Lease
or now or hereafter existing at law or in equity or by statute or otherwise,
and the exercise or beginning of the exercise by Landlord of any one or more of
the rights or remedies provided for in this Lease or now or hereafter existing
at law or in equity or by statute or otherwise shall not preclude the
simultaneous or later exercise by Landlord of any or all other rights or
remedies provided for in this Lease or now or hereafter existing at law or in
equity or by statute or otherwise.
Article 25
Surrender of Premises; Holding Over
Upon the expiration or sooner termination of the Lease Term, Tenant agrees
to quit and surrender the Leased Premises, clean and in good condition and
repair, normal wear and tear and insured casualty excepted, together with all
keys and combinations to locks, safes and vaults and all improvements,
alterations, additions, fixtures, equipment and decorations at any time made or
installed in, upon or to the interior or exterior of the Leased Premises
(except movable furniture, furnishings, equipment and other personal property
of Tenant put in at Tenant's expense), all of which shall thereupon become the
property of Landlord without any claim by Tenant therefor, but the surrender of
such property to Landlord shall not be deemed to be a payment of rent or in
lieu of any rent reserved hereunder. Before surrendering the Leased Premises,
Tenant shall remove all of Tenant's said personal property and, at Landlord's
option, Tenant shall also, at Tenant's expense, remove any alterations,
additions, fixtures or equipment that contains or constitutes a "Hazardous
Substance" (as defined in
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Article 5 such that the disposal of the same to a sanitary landfill is not
permitted or is otherwise regulated under applicable law), at any time made or
installed by Tenant in, upon or to the Leased Premises, and Tenant further
agrees to repair any damage caused thereby. If Tenant shall fail to remove any
of Tenant's said personal property or other property required by Landlord to be
removed, said property shall, at the option of Landlord, either be deemed
abandoned and may be disposed of by Landlord at Tenant's expense, or Landlord
shall have the right to remove and store said property, at the expense of
Tenant, without further notice to or demand upon Tenant and hold Tenant
responsible for any and all charges and expenses incurred by Landlord therefor.
If the Leased Premises be not surrendered as and when aforesaid, Tenant shall
indemnify Landlord against all loss or liability resulting from the delay by
Tenant in so surrendering the same, including without limitation, any claims
made by any succeeding occupant founded on such delay. If Tenant shall remain
in possession of the Leased Premises, or any part thereof, for any period after
the termination of this Lease in any of the ways above-named, Tenant shall pay
one and one-half (1.5) times the rent as a month-to-month hold over tenant
until such holding over shall cease. Tenant's obligations under this Article
shall survive the expiration or sooner termination of the Lease Term.
Article 26
Relationship of Parties
Nothing contained in this Lease shall be deemed to constitute or be
construed or implied to create the relationship of principal and agent,
partnership, joint venture or any other relationship between the parties
hereto, other than the relationship of Landlord and Tenant.
The term "Landlord" as used in this Lease means only the owner of the
current interest of Landlord in the Leased Premises or, as the case may be, the
successor thereto from time to time. In the event of any transfer at any time
of the interest of Landlord, the transferor shall be and is hereby entirely
freed and relieved of all covenants and obligations of Landlord hereunder
accruing from and after the date of such transfer, and it shall be deemed and
construed without further agreement between the parties or their respective
successors in interest or between the parties and the transferee that the
transferee of Landlord's interest has assumed and agreed to carry out any and
all covenants and obligations of Landlord thereafter accruing hereunder.
Article 27
Successors and Assigns; Provisions Binding
Except as otherwise expressly provided in this Lease, all covenants,
conditions and provisions of this Lease shall be binding
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upon and shall inure to the benefit of the parties hereto and their respective
heirs, legal representatives, successors and assigns.
Each provision of this Lease to be performed by Tenant shall be construed
to be both a covenant and a condition, and if there shall be more than one
Tenant, they shall all be bound, jointly and severally, by the provisions of
this Lease. The persons executing this Lease on behalf of Tenant hereby
covenant, represent and warrant that Tenant is a duly incorporated and duly
qualified corporation and is authorized to do business in the State of its
incorporation and that the person or persons executing this Lease on behalf of
Tenant is an officer or are officers of such Tenant, and that he or they as
such officers are duly authorized to sign and execute this Lease.
Article 28
Notices
Every notice, demand, request or other communication which may be or is
required to be given under this Lease or by law shall be in writing and shall
be sent by United States Certified or Registered Mail, postage prepaid, return
receipt requested, or by nationally recognized overnight courier (e.g. Federal
Express) and shall be addressed: (a) if to Tenant, to Michael Foods, Inc. 5353
Wayzata Blvd., Suite 324, Minneapolis, MN 55416, Attention: Jeffrey M.
Shapiro; and (b) if to Landlord, to Rechsteiner/Papetti, et al, One Papetti
Plaza, Elizabeth, New Jersey 07207, Attention: Arthur N. Papetti, with a copy
to Martin B. O'Connor, II, O'Connor, Morss & O'Connor, Liberty Hall Center,
1085 Morris Avenue, Union, NJ 07083-7136, and the same shall be deemed
delivered one (1) business day after being sent via nationally recognized
overnight courier (e.g., Federal Express) or three (3) business days after
being mailed by U.S. Certified or Registered mail, return receipt requested.
Either party may designate, by similar written notice to the other party, any
other address for such purposes.
Article 29
Miscellaneous
Tenant agrees not to record this Lease or any memorandum thereof without
the prior written consent of Landlord.
Each party covenants, warrants and represents to the other that there was
no broker instrumental in consummating this Lease and that no conversations or
prior negotiations were had by such party with any broker concerning the
renting of the Leased Premises. Each party agrees to indemnify and hold the
other harmless against and from all liabilities, including attorneys' fees,
arising from any claims for brokerage commissions or finders' fees resulting
from or arising out of any conversations or negotiations had by such party with
any broker.
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Tenant agrees to annually make available for review by Landlord and its
lenders such financial information and statements as the same may reasonably
request, provided, Landlord and its lenders agree to keep such information and
statements confidential to the extent the same is not public information.
Article 30
Entire Agreement; Construction
This Lease sets forth the entire agreement between the parties respecting
the Leased Premises. There are no understandings, agreements, statements,
promises, representations or warranties, express or implied, not specified
herein respecting the Leased Premises and all prior conversations and writings
by or between the parties or their representatives are merged herein and
extinguished. This Lease shall not be modified except by a writing subscribed
to by the party to be charged, nor may this Lease be cancelled by Tenant or the
Leased Premises surrendered except with the express written authorization of
Landlord.
This Lease shall be construed, as to both validity and performance, and
enforced in accordance with and shall be governed by the laws of the
jurisdiction in which the Leased Premises are located, without regard to such
jurisdiction's principles of conflicts of law. If any provision of this Lease
or the application thereof to any person or circumstance shall to any extent be
held void or invalid, then the remainder of this Lease or the application of
such provision to persons or circumstances other than those as to which it is
held void or invalid shall not be affected thereby, and each provision of this
Lease shall be valid and enforced to the fullest extent permitted by law.
The headings in this Lease are for purposes of reference only and shall
not limit or define the meaning hereof. This Lease may be executed in any
number of counterparts, each of which is an original, but all of which shall
constitute one instrument.
Article 31
Binding Arbitration
In the event that a dispute arises between Landlord and Tenant such matter
shall be submitted to binding arbitration as follows:
(1) Any arbitration hereunder shall be held pursuant to the
Commercial Arbitration Rules of the American Arbitration Association except
that:
(i) Landlord and Tenant shall each select one arbitrator. The
two appointed arbitrators shall jointly choose a third arbitrator
from a list
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provided by the American Arbitration Association and the third
arbitrator shall be the sole arbitrator to hear the dispute. If
either party fails to appoint an arbitrator within twenty (20) days
after demand by the other party, or the appointed arbitrators fail to
agree to the third arbitrator within twenty (20) days after a list of
potential arbitrators is provided by the American Arbitration
Association, the American Arbitration Association shall select an
arbitrator for the party failing to make appointment or shall appoint
the third arbitrator, as the case may be.
(ii) The arbitration shall be held in the City in which any
facility leased hereunder is located, or such other location as the
parties shall mutually agree.
(iii) The parties shall bear their own expenses of the
arbitration, including attorneys fees and costs of expert witnesses.
(iv) The filing or other fees of the American Arbitration
Association shall be paid one-half by the Landlord and one-half by
the Tenant.
(v) The award of the arbitrators shall be binding and shall be
enforceable in any court of the state in which the Premises are
located.
(2) If the American Arbitration Association is not then in existence
or refuses to administer the arbitration, the arbitration shall be administered
by the most nearly comparable organization as shall be agreed by the parties,
or failing agreement, as shall be determined by the Union County Superior Court
of Elizabeth, New Jersey.
(3) Notwithstanding anything herein to the contrary, either party
shall have the right to seek injunctive relief to maintain the status quo until
a dispute between the parties can be arbitrated.
In the event that a dispute arises between Landlord and Tenant involving
an amount which is greater than the then current annual base rent under this
Lease, such matter shall be litigated by the parties.
Article 32
Choice of Law; Jurisdiction.
This Lease shall be governed, construed, applied and enforced in
accordance with the laws of the state in which the
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Premises are located (without regards to principles of conflicts of laws).
Landlord and Tenant each (i) irrevocably submits to personal jurisdiction
in the courts of the state in which the Premises are located and the applicable
United States District Court serving the county in which the Premises are
located, and appellate courts from any thereof, and (ii) irrevocably waives any
objection which it may have at any time to the laying on venue of any suit,
action or proceeding arising out of or relating to this Lease brought in any
such court, and irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum.
Landlord and Tenant each hereby agree that to the extent permitted by
local court rules, any summons, complaint and other process and notice in
connection with the commencement of or any other proceeding in any such suit,
action or proceeding may be served on it by using the notification procedure
set forth in this Lease.
LANDLORD AND TENANT EACH HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE RIGHT TO TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR
COUNTERCLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, RELATING DIRECTLY OR
INDIRECTLY TO THIS LEASE OR ANY ACTS OR OMISSIONS OF LANDLORD, ITS OFFICERS,
EMPLOYEES, DIRECTORS OR AGENTS IN CONNECTION THEREWITH.
Article 33
Joint Preparation
This Lease is to be deemed to have been prepared jointly by the parties
hereto, and any uncertainty or ambiguity existing herein, if any, shall not be
interpreted against any party, but shall be interpreted according to the
application of the rules of interpretation for arm's length agreements.
Article 34
Time Is of the Essence
Time is of the essence with respect to all matters provided in this Lease.
Article 35
Term Renewal
Tenant is granted the right to extend the term of this Lease for two (2)
period(s) of five (5) years each (the "Option Period(s)") on the terms and
conditions set forth herein; provided, however, that each said right to extend
for each such Option Period (the "Option(s)") may be exercised only in the
event Tenant is not
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in default at the time each said Option right is exercised and provided,
further, that the Option for the immediately preceding Option Period, if any,
has been exercised. The phrase "Lease Term" as used in this Lease shall mean
the term of this Lease as extended by Tenant pursuant to this Article.
To exercise each Option, Tenant shall notify Landlord in writing no later
than one (1) year prior to the expiration of the initial Lease Term or the
Option Period then expiring, if any.
In the event Tenant properly exercises its Option as provided herein: (1)
all of the terms and conditions of this Lease shall apply during the Option
Period(s) (except the Option then exercised), including, but not limited to,
Tenant's obligation to pay all costs, charges and expenses provided for in the
Lease; (2) the Option exercised by Tenant in order to extend the Term of the
Lease shall terminate and be of no further force and effect and may not be
exercised again by Tenant; (3) no concession previously granted Tenant by
Landlord in the initial term shall be due or payable to Tenant during or with
respect to such Option Period; and (4) the monthly base rent payable under
Article 2 during the particular Option Period shall be determined as set forth
below. At Landlord's request, prior to the commencement of the particular
Option Period, Tenant shall execute, acknowledge, and deliver to Landlord an
amendment to lease evidencing Tenant's exercise of its Option and setting forth
the commencement and expiration dates of the Option Period and term of the
Lease and the monthly base rent payable during the Option Period.
The Annual Rent payable monthly under Article 2 during each Option Period
shall be such amount as may be agreed upon by the parties and which is not less
than 110%, nor more than 135%, of the Annual Rent for the twelve (12) months
immediately preceding the commencement of the applicable Option Period (the
"Option Period Rent").
If the parties are unable, within sixty (60) days of notice by Tenant
electing to extend the term of the Lease, to agree on the amount of the Option
Period Rent then each party shall within ten (10) days thereafter designate and
select an M.A.I. certified appraiser and submit to them what such party
believes the Option Period Rent should be. The two appraisers shall then
together within thirty (30) days determine and agree upon the Option Period
Rent by selecting either the Option Period Rent proposed by Landlord or that
proposed by Tenant, with no other variation.
If the two appraisers are unable within said thirty (30) days to agree on
either Landlord's or Tenant's proposed Option Period Rent, then they shall
together designate a third M.A.I. appraiser, who alone shall select either
Landlord's or Tenant's proposed Option Period Rent as the Annual Rent, which
determination shall be binding and enforceable upon all parties.
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Each party shall pay the cost of the appraisers selected by such party and
the costs of the third appraiser (if retained) shall be paid equally by each
party.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW
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TENANT:
MICHAEL FOODS, INC., a Delaware corporation
(Seal) By: /s/ Gregg A. Ostrander
-------------------------------------
Attest: Gregg A. Ostrander
-------------------------------------
Print Name Here
_______________________________
(Ass't) Secretary
LANDLORD:
RECHSTEINER and PAPETTI, et al, an Iowa
general partnership
Witness: By: /s/ William T. Rechsteiner, General Partner
-------------------------------------------
William T. Rechsteiner, General Partner
/s/ Wanda L. Rechsteiner
- -------------------------------
/s/ Janet U. Macy
- -------------------------------
[SIGNATURE PAGE TO LEASE AGREEMENT]
STATE OF )
----------------------
)
OF
- ----------- --------------- )
On this _____ day of _______________, 1997, before me personally
appeared ________________________________ , to me personally known, who, being
by me duly sworn, did say that he is the ____________________ of MICHAEL FOODS,
INC., a Delaware corporation, and that said instrument was signed on behalf of
said corporation by authority of its Board of Directors; and said officer
acknowledged said instrument to be the free act and deed of said corporation.
36
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the ____________ and State aforesaid, the day and year first
above written.
_____________________
Notary Public
(SEAL)
My Commission Expires:
STATE OF IOWA )
)
COUNTY OF TAYLOR )
On this 21st day of February, 1997, before me personally appeared
WILLIAM T. RECHSTEINER, to me personally known, who, being by me duly sworn,
did say that he is a partner of RECHSTEINER and PAPETTI, et al, an Iowa general
partnership, and that said instrument was signed by him as partner on behalf of
said general partnership; and said WILLIAM T. RECHSTEINER acknowledged said
instrument to be the free act and deed of said general partnership.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal in the County and State aforesaid, the day and year first
above written.
/s/ Thomas C. O'Kane
--------------------------
Notary Public
(SEAL)
THOMAS C. O'KANE
My Commission Expires: May 8, 1997
37
EXHIBIT A
DESCRIPTION OF PREMISES
104 West Ohio Street, Lenox, Iowa (storage facility, processing
plant and pallet repair shop)
(LEGAL TO FOLLOW)