EXHIBIT 10.1
LEASE AGREEMENT
This LEASE AGREEMENT ("Lease") made effective the 27th day of December, 1999,
between Simon Group Limited Partnership, an Ohio limited partnership, having an
office at 3000 E. 14'h Avenue, Columbus, Ohio 43219, (hereinafter called
"Landlord") and Kahiki Foods, Inc., an Ohio corporation, having an office at
3583 E. Broad Street, Columbus, Ohio 43213 (hereinafter called "Tenant").
WITNESSETH: Landlord leases to Tenant and Tenant leases from Landlord office
space and warehouse/assembly space which combined area is commonly known as:
3004 E. 14th Avenue, Columbus, Ohio 43219, consisting of approximately 22,095
feet, (hereinafter called "the Demised Premises" or "the Premises") as more
particularly described in Exhibit "A" for the term and upon the payment of the
rents and the keeping, performance and observance of all other terms, covenants,
provisions, conditions and limitations hereinafter set forth, and each of the
parties covenants and agrees to keep, perform and observe all of the same on its
part to be kept, performed and observed.
1.TERM. The initial term of this Lease shall commence on February 1,2000, and
end on January 31, 2005, both dates inclusive. Provided Tenant is not in default
under this Lease, Tenant shall have the option to renew this Lease for two (2)
successive three (3) year renewal periods with the first beginning at the end of
the initial lease term and the second beginning at the end of the initial
renewal period. In order to exercise each renewal option hereunder, Tenant must
not be in default under this Lease and must provide Landlord with written notice
of its intention to do so 180 days prior to the end of the original term or any
renewal period under this Lease. All terms and conditions of any renewal period
shall remain the same as the initial lease term excepting the right of further
renewal and any other matter herein specifically mentioned. All parties to this
Lease and liable thereon by virtue of this Lease and any guaranty of same shall
be and remain bound and liable for any such renewal period to the same effect
and extent as though such renewal period had been part of the initial tenn.
2. RENT. Tenant covenants and agrees to pay Landlord the Base Rent and
Additional Rent (hereinafter Base Rent and Additional Rent shall be collectively
referred to as "Rent"), commencing on February 1,2000, for the Demised Premises.
As Base Rent, Tenant shall pay Landlord the sum of Fifty-Five Thousand Two
Hundred ThirtySeven and 50/100 Dollars ($55,237.50) per annum payable in equal
installments of Four Thousand Six Hundred Three and 13/100 Dollars ($4,603.13),
in advance, on the first day of each and every calendar month of the initial
tenn of this Lease, without any deduction or set-off whatsoever.
As Additional Rent to reimburse Landlord for its payment of Taxes pursuant to
Paragraph 4, Common Area Maintenance Charges pursuant to Paragraph 7D, and
Insurance pursuant to Paragraph 8, Tenant shall pay Landlord the amount of
Twenty-Two Thousand Ninety-Five and 00/100 Dollars ($22,095.00) per annum ($1.00
per square foot of Demised Premises), payable in equal monthly installments of
One Thousand Eight Hundred Forty-One and 25/1 00 Dollars ($1,841.25) in advance
on the first day of each and every calendar month of the initial term of the
Lease without any deduction or set off whatsoever. Tenant covenants and agrees
that all Base Rent and Additional Rent hereunder shall be paid to Landlord in
legal tender of the United States of America without any demand therefor, at the
office herein above set forth, or at such other place as Landlord may from time
to time designate by notice in writing. All overdue installments of Rent or any
other amounts due to Landlord from Tenant under this Lease shall bear interest
at the rate of one and one-half percent (1-1/2 %) per month, for each month or
any part thereof during which there is any overdue installments.
3. RENEWAL RENT. Tenant covenants and agrees to pay Landlord, during any renewal
period(s), Base Rent as defined herein and Additional Rent. As Base Rent during
the first renewal period Tenant shall pay Landlord a sum equal to the greater of
One Hundred Six Thousand Nine Hundred Eighty-Five and 88/1 00 Dollars
($106,985.88) per annum or the annual sum determined by multiplying the sum of
One Hundred Six Thousand Nine Hundred Eighty-Five and 88/100 Dollars
($106,985.88) by a number equal to the CPI Index as of December 2005 divided by
the CPI Index of December 1999. The sum which represents the annual Base Rent
shall be paid in twelve (12) equal installments, in advance, on the first day of
each and every calendar month of the first renewal period of this Lease, without
any deduction or set-off. As Base Rent during the second renewal period Tenant
shall pay to Landlord a sum equal to the greater of the annual Base Rent for the
first renewal period or a sum determined by multiplying the annual Base Rent
during the first renewal period by a number equal to the CPI Index as of
December 2008 divided by the CPI Index of December 2005. The sum which is
determined to be the annual Base Rent for the second renewal period shan be paid
in twelve (12) equal installments, in advance, on the first day of each and
every calendar month of the second renewal period of this Lease without any
deduction or set-off whatsoever. "CPI" shall mean the Consumer Price Index, an
cities, an urban consumers, revised as published by the Bureau of Labor
Statistics, United States Department of Labor. If at any time during this Lease
the CPI shall cease to be published, there shall be substituted therefor the
most similar inflation indicator then published.
As Additional Rent during the first renewal period Tenant shall pay
Landlord a sum equal to the greater of Twenty- Two Thousand Ninety-Five and
00/100 Dollars
($22,095.00) per annum or the annual sum determined by multiplying the sum of
Twenty-Two Thousand Ninety-Five and 00/100 Dollars ($22,095.00) by a number
equal to the CPI Index as of December 2005 divided by the CPI Index of December
1999. The sum which represents the annual Additional Rent shan be paid in twelve
(12) equal installments, in advance, on the first day of each and every calendar
month of the first renewal period of this Lease, without any deduction or
set-off. As Additional Rent during the second renewal period Tenant shall pay to
Landlord a sum equal to the greater of the annual Additional Rent for the first
renewal period or a sum determined by multiplying the annual Additional Rent
during the first renewal period by a number equal to the CPI Index as of
December 2008 divided by the CPI Index of December 2005. The sum which is
determined to be the annual Additional Rent for the second renewal period shall
be paid in twelve (12) equal installments, in advance, on the first day of each
and every calendar month of the second renewal period of this Lease without any
deduction or set-off whatsoever. "CPI" shan mean the Consumer Price Index, all
cities, all urban consumers, revised as published by the Bureau of Labor
Statistics, United States Department of Labor. If at any time during this Lease
the CPI shall cease to be published, there shall be substituted therefor the
most similar inflation indicator then published.
4. REAL ESTATE TAXES. "Taxes" shall be herein defined as all assessments, both
general and special, levies and governmental impositions and charges of every
kind and nature whatsoever assessed, imposed or levied upon the parcel of which
the Demised Premises is a part during the term of this Lease and any extension
or renewal thereof. Landlord shall pay and be responsible for payment of Taxes.
5. PROJECT SERVICES.
A. Provided Tenant is not in default under any of the covenants and
agreements of this Lease, Landlord shall furnish Tenant with electric current
used in connection with the parking area lighting. Any installation of special
equipment (such as intermittent operating equipment) must have the prior
approval of Landlord. Any new or additional electrical facilities in or
servicing the Premises required by Tenant (if permitted) shall be installed,
furnished or made by Landlord at Tenant's expense. All expense of maintenance
and cleaning of fluorescent lighting equipment located in the Premises shall be
borne by Tenant and all electricity used during cleaning services or alterations
and repairs in said Premises shall be paid by Tenant.
B. Landlord represents that portable water, sanitary sewer and
electricity is currently available to this site. Landlord, while not warranting
that any of the Project services stipulated in this Paragraph 5 will be free
from interruptions or suspensions caused by inspections, cleaning, repairs,
renewals, improvements, alterations, strikes,
lockouts, accidents, inability of Landlord to procure such service, or to obtain
fuel or supplies, and for other causes or causes beyond Landlord's reasonable
control, or for emergency, will nevertheless diligently attempt to make such
repairs or renewals to building distributions lines and facilities as may be
required to restore any such service so interrupted or suspended. An
interruption or suspension of, or fluctuation in, any Project service (resulting
from any of said cause or causes) shall never be deemed an eviction or
disturbance of Tenant' s use and possession of the Premises, or any part
thereof, nor render Landlord liable to Tenant for damages, nor relieve Tenant
from performance of Tenant's covenants and agreements hereunder.
C. Landlord does hereby agree to provide space in the parking area
immediately adjacent to the Premises located on the north side of the building
for installation of a pad upon which to locate a 12' x 20' nitrogen tank
provided that adequate space is available. Tenant shall pay all costs, including
but not limited to cost of construction and installation, associated with said
pad and the installation of the nitrogen tank. Should Landlord incur any cost(s)
associated with the locating of this pad or the maintaining of a nitrogen tank
upon Landlord's property, including but not limited to increased insurance
premiums or permit fees, Tenant shall, immediately upon receipt from Landlord of
invoice for same, reimburse Landlord for such cost(s). At the conclusion of the
lease term, or any renewal period, Tenant, at its sole cost, shall remove the
nitrogen tank and pad and restore Landlord's property to the condition in which
it was originally in at the time the pad was installed or to such other
condition acceptable to Landlord and which is comparable with the condition of
Landlord's property at that time.
6. UTILITIES.
A. Tenant shall pay for all utilities serving, or used in connection
with, Tenant's occupancy of the Premises including, without limitation, water,
electricity, natural gas, sewer rental and telephone and shall sign all
application forms and other documents, if any, which may be necessary in order
to obtain separate meters for such utilities.
B. At all times, Tenant's use of any such services shall never exceed
the capacity of the mains, feeders, ducts and conduits bringing such service to
the Demised Premises or of the outlets, risers, wiring, piping, duct work or
other means of distribution of such service within the Demised Premises.
C. Tenant shall be responsible for and shall pay all cost(s) associated
with the removal of rubbish from the Premises.
7. MAINTENANCE OF DEMISED PREMISES.
A. Landlord shall maintain at its cost: the roof and exterior walls,
excepting any doors or windows therein, common areas (including parking lots and
drives) and any structural portions of the Demised Premises; making repairs
thereto becoming necessary during the initial term and any renewal period unless
occasioned by any act or negligence of Tenant, its agents, contractors,
invitees, or employees in which event such damage shall be repaired by Landlord
at Tenant's sole cost and expense or in the event Landlord pays for such damage
then Landlord shall be entitled to reimbursement from the Tenant within fifteen
(15) days after Landlord invoices Tenant.
B. Tenant covenants and agrees to keep and maintain the Demised
Premises and the fixtures and improvements therein in good order, condition and
repair, and to make promptly all repairs or replacements becoming necessary
during the initial term and any renewal period as extended including, but
without limitations, repairs or replacements of windows, doors, glass ( which
shall be replaced with glass of the same size and quality), electrical, plumbing
and sewage lines and fixtures within the Demised Premises, and all heating, air
conditioning, ventilating and refrigeration equipment and ducts and vents
attached thereto within or which service the Demised Premises, interior walls,
floor covering and ceilings, and all elevators, docks, conveyors, fire
extinguishers and building appliances of every kind. All repairs and
replacements made by Tenant shall be equal in quality to the original work.
C. On default of Tenant in making any repairs or replacements required
to be made by Tenant hereunder or in maintaining the Demised Premises, Landlord
may, but shall not be required to, make such repairs or replacements or to
maintain the Demised Premises for Tenant's account, and the expenses thereof
shall be payable by Tenant on demand, or at Landlord's election, together with
the next installment of Rent due hereunder.
D. Landlord shall maintain at its cost the common areas including
without limitation, the cost of lighting, cleaning, repairing, striping, sealing
and snow plowing of the walkways, drives, parking lots, service areas and other
common areas; exterior repairs; roof maintenance; service contracts;
landscaping; and all other expenses paid in connection with the operation of the
Premises and property of which the Premises is a part.("Common Area Maintenance
Charges").
8. INSURANCE BY LESSOR. Landlord shall, during the term of this Lease, keep the
buildings and improvements compnsmg the Project, of which the Premises is a
part, adequately insured against loss or damage by fire and other casualties
covered by standard extended coverage insurance as issued in the State of Ohio,
and shall
maintain public liability insurance in an amount not less than One Million and
00/1 00 Dollars ($1,000,000.00) per person and per occurrence ("Insurance").
9. RIGHTS RESERVED BY LANDLORD. Without abatement or diminution in Rent,
Landlord reserves and shall have the following rights:
A. To approve and install all signs with respect to Tenant's use of the
Premises (provided that such installment shall be at Tenant's sole expense); and
B. Upon reasonable notice to Tenant to enter the Premises at all
reasonable times (1) for the making of such inspections, repairs, renewals,
alterations, improvements or additions of, or to, the Premises or the building
as Landlord may deem necessary or desirable; (2) to exhibit the Premises to
others during the last six (6) months of the initial term or any renewal period
hereunder; and (3) for any purpose whatsoever related to the safety, protection,
preservation or improvement of the Demised Premises or of the building or of
Landlord's interest. Landlord shall take reasonable steps not to disrupt
Tenant's operations in Landlord's exercise of its rights to enter the Premises
or as provided hereunder.
10. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not, without the prior written consent of Landlord in
each instance (which consent shall not be unreasonably or arbitrarily withheld),
(1) assign, mortgage, hypothecate or convey this Lease or any interest therein;
(2) allow any transfer hereof of any lien upon Tenant's interest by operation of
law; (3) sublet the Premises or any part thereof; or (4) permit the use or
occupancy of the Premises or any part thereof by anyone other than Tenant. The
consent of Landlord to any such assignment, conveyance or subletting by Tenant
shall not operate as a waiver of the necessity for a consent to any subsequent
assignment, conveyance or subletting, and the terms of such consent shall be
binding upon any person holding by, under or through Tenant. Such consent shall
not relieve Tenant from liability hereunder, past, present or future, for the
payment of Rent and any amounts due Landlord from Tenant under this Lease or the
performance or observance of any of the terms and conditions of this Lease
Agreement, and Tenant shall continue to be fully liable hereunder.
B. If Tenant is a corporation, then any transfer of this Lease
Agreement from Tenant by merger, consolidation or liquidation, or any change in
ownership or power to vote of a majority of Tenant's outstanding voting stock
shall constitute an assignment for the purpose of this Lease Agreement and shall
require the prior written consent of Landlord.
11. USE.
A. Tenant shall use and occupy the Demised Premises as a business
office and/or a USDA approved food processing plant and/or warehouse and for no
other purpose.
B. Tenant shall not use or permit the Demised Premises to be used for
any unlawful or illegal business or purpose, nor sell or store on the Demised
Premises any spirituous, malt or vinous liquor or any narcotic drugs or any
explosives or inflammable materials. Tenant shall use, maintain and occupy the
Demised Premises in a careful, safe and proper manner and shall not permit waste
or the maintenance of a nuisance therein. Tenant will keep the Demised Premises
and appurtenances and the adjoining areas and sidewalks in a clean, safe and
healthy condition. Tenant, at its sole expense, shall comply promptly with all
laws, orders and regulations of federal, state, county and municipal authorities
and with any direction of any public officer or officers which shall impose any
liability, order or duty upon Landlord or Tenant with respect to Tenant's use or
occupancy of the Demised Premises. Tenant shall not permit the Demised Premises
to remain vacant and shall not do or permit to be done any act or thing upon the
Demised Premises which will invalidate or be in conflict with any fire or
casualty insurance policies or increase the rate for fire or casualty insurance
covering the building. If, by reason of failure of Tenant to comply with the
provisions hereof including, but not limited to, the use to which Tenant puts
the Premises, the fire and casualty insurance rate shall at the commencement of
the term or at any time thereafter be higher than it otherwise would be, then
Tenant shall reimburse Landlord for that part of all fire and casualty insurance
premiums thereafter paid by Landlord which shall have been charged because of
such failure or use by Tenant and shall make whatever changes are necessary to
comply with the requirements of the utility companies, insurance underwriters
and governmental authorities having jurisdiction thereof.
12. TENANT'S TAXES. Tenant covenants and agrees to pay promptly when due all
taxes assessed against Tenant's fixtures, furnishings, equipment and
stock-in-trade placed in or on the Demised Premises during the term of this
Lease.
13. POSSESSION.
A. If Landlord shall be unable to deliver possession of the Premises on
the date of the commencement of the term hereby created because of (1) the fact
that the Premises shall be in the course of construction on the date of
commencement of the term of this Lease, or (2) any other cause beyond Landlord's
reasonable control, the Rent reserved shall not commence until the date of
possession of the Premises is
available to Tenant and, in the event such date shall be in the middle of the
month, then the Rent for such portion of a month shall be the product of the
number of days of actual occupancy and a fraction, the numerator of which is the
annual Rent hereunder and the denominator of which is 360. Tenant agrees to
accept such allowance and abatement of Rent as liquidated damages, in full
satisfaction for the failure of Landlord so to deliver possession on said date
of commencement, and to the exclusion of all claims and rights which Tenant
might otherwise have by reason of delivery of possession not being made on said
date except that Tenant shall also have the remedy of terminating this Lease if
the Premises cannot be delivered by June 1, 2000; and no failure so to deliver
possession on said date shall in any event extend, or be deemed to extend, the
term of this Lease. Nonstandard or additional work, if any, undertaken by
Landlord for Tenant shall not be considered in determining the date when
possession is available to Tenant.
B. In the event that Tenant enters into possession of the Premises and
uses and occupies the Premises for business purposes prior to the date of
commencement of the term of this Lease, Tenant agrees that such use and
occupancy shall be deemed to be under all of the terms, covenants, conditions
and provisions of this Lease, including the covenant to pay Rent except as
provided herein.
14. INDEMNITY AND INSURANCE BY TENANT.
A. All personal property belonging to Tenant or to any other person
located in or about the Premises, or the areas adjoining the Premises, including
the parking areas, shall be there at the sole risk of Tenant or such other
person, and neither Landlord nor Landlord's agents or employees shall be liable
for the theft, loss or misappropriation thereof, nor for any damage or injury
thereto, nor for death or injury of Tenant or any of its officers, agents or
employees or of any other person or damage to property caused by fire, water,
rain, sprinklers, snow, frost, ice, steam, heat, cold, dampness, falling
plaster, explosion, sewers, or sewerage, gas, odors, noise, the bursting or
leaking of pipes, plumbing, electrical wiring, and equipment and fixtures of all
kinds, or by any act or neglect of other tenants or occupants of the Project, or
of any other person, or caused in any other manner whatsoever, nor shall
Landlord be liable for any latent defect in the Premises or of any damage,
death, injury or defect therein. Tenant shall protect, indemnify and save
harmless Landlord from all losses, costs or damages sustained by reason of any
act or other occurrence or failure to act causing death or injury to any person
or damage to property whomsoever or whatsoever due directly or indirectly to the
use or occupancy of the Premises, or the areas adjoining the Premises, including
the parking areas, or any part thereof by Tenant, and Tenant shall indemnity and
save harmless Landlord against and from any and all claims arising from any act
of negligence of Tenant or any of its agents,
contractors, servants, employees, licensees or invitees, and against and from
all costs, counsel fees, expenses and liabilities incurred with respect to any
such claim, action or proceeding brought thereon; and in case any action or
proceeding be brought against Landlord by reason of any such claim, Tenant upon
notice from Landlord covenants to resist or defend at Tenant's expense such
action or proceeding by counsel reasonably satisfactory to Landlord. Nothing
herein contained shall be construed to relieve Landlord of the consequence of
its own negligence or the negligence of Landlord's agents or employees.
B. Tenant agrees that, at its own expense, it will procure and continue
in force, Comprehensive General Liability insurance insuring against personal
injury, bodily injury and property damage occurring in, upon or about the
Demised Premises, including all damage to or from sign, glass, awning, fixtures
or appurtenances now or hereinafter erected on the Demised Premises during the
term of this Lease, such insurance at all times to be in an amount of not less
than a combined single limit of One Million and 00/100 Dollars ($1,000,000.00).
Such insurance shall name Landlord and Landlord's mortgagee as "Additional Named
Insured" and shall be written with a company or companies authorized to engage
in the business of general liability insurance in the State of Ohio, and there
shall be delivered to landlord customary insurance certification evidence of
such paid-up insurance and copies of the policies. Such insurance shall further
provide that the same may not be cancelled, terminated or modified unless the
insurer gives Landlord and Landlord's mortgagee(s) at least fifteen (15) days
prior written notice thereof.
The above-mentioned insurance certifications and policies which are to
be provided by Tenant shall be for a period of not less than one (1) year, it
being understood and agreed that fifteen (15) days prior to the expiration of
any policy of insurance, Tenant will deliver to Landlord a renewal or new policy
to take the place of the policy expiring, with the further agreement that,
should Tenant fail to furnish policies as is provided in this Lease, and at the
time herein provided, Landlord may obtain such insurance and the premiums on
such insurance shall be paid by Tenant unto Landlord upon demand.
15. HOLDING OVER. Should Tenant remain in possession of the Premises after the
expiration of the initial term or any renewal penod ot this Lease without the
consent of Landlord, then, without diminishing in any respect Landlord's other
remedies with respect to Tenant's failure to vacate the Premises, Tenant shall
be on a month to month tenancy at one and one-half (1-1/2) times the Rent
otherwise due under this Lease and such tenancy shall otherwise be subject to
all of the covenants and agreements of this Lease.
16. TAKING OF POSSESSION. Tenant takes possession of the Premises "As Is".
Landlord does not make any representation or warranty as to the condition of the
Premises including but not limited to the HV AC, electrical, plumbing, sewer and
refrigeration systems. Taking of possession of the Premises by Tenant shall be
conclusive evidence as against Tenant that the Premises was in good order and
satisfactory condition and/or acceptable to Tenant when Tenant so took
possession. No representation respecting the condition of the Premises or the
Project has been made by Landlord to Tenant unless contained herein; and no
promise of Landlord to prepare, alter or improve the Premises for Landlord's or
Tenant's use and occupancy shall be binding upon Landlord unless contained
herein. Landlord shall not be liable to Tenant for any expenses, injury, death,
loss or damages resulting from frame work done in or upon, or by reason of the
use of any adjacent or nearby building, land or public or private way, or
resulting from construction of any additional building, land or public or
private way, or resulting from construction of any additional buildings within
the Project; provided, however, that Landlord shall use its best efforts so as
to not unreasonably interfere with Tenant's use of the Premises and the adjacent
parking areas in connection with any construction by Landlord within the
Project.
17. AL TERA TION. It is understood, acknowledged and agreed that Tenant does
take and lease the Demised Premises "As Is" and no representations are made or
have been made by Landlord concerning the condition of the Premises and/or any
of the fixtures and/or trade fixtures contained therein, including but not
limited to the refrigeration equipment located in the premises, except as set
forth herein. Tenant shall be solely responsible for the renovating, remodeling
and or repair of the Premises and the fixtures and equipment contained therein.
All such renovation, remodeling and/or repair of the Premises and the fixtures
and equipment contained therein shall be at Tenant's sole cost and expense and
shall not be commenced without first obtaining Landlord's written consent for
same. Tenant shall not make any structural alterations, additions or
improvements or other changes in or to the structure of the Premises without
Landlord's prior written consent in each and every instance which shall not be
unreasonably withheld. Before any such work is commenced or any materials
therefor are delivered on the Premises, Tenant shall provide Landlord with
plans, specifications, names of contractors and necessary permits; shall
indemnify and hold harmless Landlord against and from liens, costs, damages, and
expenses of all kinds; and shall submit to Landlord's reasonable supervision of
said work.
18. SURRENDER AT END OF TERM. At the expiration, or earlier termination in any
manner, of the initial term or any renewal period hereof Tenant shall quit and
surrender the Premises, together with all installations, improvements, and
alterations, including but not limited to trade fixtures, which may have been
installed by Landlord or Tenant and which Landlord and Tenant agree shall become
the property of
Landlord (it being understood and agreed that Tenant's furniture, movable
partitions and standard business office machines and equipment shall remain
Tenant's property and may be removed by Tenant), in as good condition and repair
as when possession was delivered, reasonable use and wear, loss or damage by
fire, the elements or other casualty not resulting from the willful or negligent
acts of Tenant, Tenant's agents, employees or invites excepted. Upon such
expiration or termination, should Landlord request Tenant to do so, Tenant
agrees to remove or cause the removal of, all at Tenant's cost for such removal,
all additions, installations, alterations, fixtures, and improvements made by
Tenant upon the Premises and Tenant shall repair at Tenant's expense any damage
to the Premises caused by such removal; any of the same not so removed, or
removed and not properly repaired, may be removed and repaired by Landlord, and
Tenant agrees to pay the cost thereof and to indemnify Landlord and hold
Landlord harmless therefore; and if Landlord does not remove and repair the
same, the same shall be deemed abandoned by Tenant and shall belong absolutely
to Landlord.
19. UNTENANTABILITY. If the Premises shall be partially damaged by rue or other
casualty, this Lease shall remain in full force and effect and the damage to the
Premises shall be repaired by Landlord, and the Rent until such repairs shall be
made shall be abated on a per diem basis proportionate to the extent and for the
period that the Premises is unfit for occupancy; provided, however, that there
shall be no abatement of Rent if the damage shall have been caused by the fault
or neglect of Tenant, or Tenant's agents, contractors, servants, employees,
licensees or invites, which shall be without prejudice to any other rights or
remedies of Landlord. Landlord shall incur no liability on account of any delay
in the completion of such repairs which may arise by reason of adjustment of
insurance, labor difficulties or any other cause beyond Landlord's control. If
all or substantially all of the Premises is wholly destroyed or is made unfit
for occupancy by rue or other casualty, acts of God or other cause, in
Landlord's reasonable judgment, Landlord may elect, by written notice to Tenant
within ninety (90) days after the casualty date, (1) to terminate this Lease as
of the date when the Premises or the building is so destroyed or made unfit for
occupancy, or (2) to repair, restore or rehabilitate the Premises or the
building at Landlord's expense within six (6) months after Landlord is able to
take possession of the damaged Premises and undertake construction of repairs;
and if Landlord elects to so repair, restore or rehabilitate the Premises or the
building, this Lease shall not terminate, but Rent shall be abated on a per diem
basis proportionate to the extent and for the period that the Premises is unfit
for occupancy. In the event Landlord shall proceed under (2) above and shall not
substantially complete the work within said six (6) month period (excluding from
such period loss of time resulting from delays beyond the reasonable control of
Landlord), either Landlord or Tenant may then terminate this Lease, as of the
date when the Premises or the building was so made unfit for occupancy, by
written
notice to the other not later than ten (10) days after the expiration of said
six (6) month period, computed as herein provided. In the event of termination
of this Lease pursuant to this paragraph, Rent shall be apportioned on a per
diem basis to and including the effective date of such termination, and Tenant
shall promptly vacate the Premises and surrender the same to Landlord. If the
damage or destruction be due to the fault or neglect of Tenant, or Tenant's
agents, contractors, servants, employees, licensees or invites, the debris shall
be removed at the expense of Tenant. Notwithstanding anything herein stated to
the contrary, Landlord shall in no event be obligated to repair or rebuild if
such damage or destruction shall occur during the last one (1) year term of this
Lease.
20. DEFAULT.
A. Tenant covenants and agrees that if:
1. Tenant shall fail, neglect or refuse to pay any installment of Base
Rent and/or Additional Rent at the time and in the amount as herein provided, or
to pay any other monies agreed by it to be paid promptly when and as the same
shall become due and payable under the terms hereof, and if any such default
should continue for a period of more than ten (10) days; or
2. Tenant shall make an assignment for the benefit of creditors or if
the interest of the Tenant in said Premises shall be sold under execution or
other legal process; or
3. Tenant shall be adjudged a bankrupt or if a receiver or trustee
shall be appointed for the Tenant by any court; or
4. Tenant shall abandon or vacate the premises or shall fail, neglect
or refuse to keep and perform any of the other covenants, conditions,
stipulations or agreements herein contained and covenanted and agreed to be kept
and performed by it, and in the event any such default shall continue for a
period of more than ten (10) days after notice thereof given in writing to
Tenant by Landlord, provided, however, that if the cause for giving such notice
involves the making of repairs or other matters reasonably requiring a longer
period of time than the period of such notice, Tenant shall be deemed to have
complied with such notice so long as it has commenced to comply with said notice
within the period set forth in the notice and is diligently prosecuting
compliance of said notice or has taken the proper steps or proceedings under the
circumstances to prevent the seizure, destruction, alteration or other
interference with said Premises by reason of non-compliance with the
requirements of any law or ordinance or with the rules, regulations, or
direction of any governmental authority as the case may be;
Then the Tenant shall be deemed to be in default of this Lease and does
hereby authorize and fully empower Landlord or Landlord's agents, at Landlord's
sole option, to (1) re-enter into possession of the Demised Premises, with
process of law, and expel, remove or put out Tenant or any other person or
persons occupying said Premises, and to repossess said Premises, without being
deemed guilty of any manner of trespass and without prejudice to any remedies
which might otherwise be used by Landlord, and/or (2) sue for and recover all
Rent earned up to the date of such reentry; and/or (3) terminate the Tenant's
right of possession without terminating the Lease; and/or (4) terminate the
Tenant's right of possession, re-enter and resume possession of the Demised
Premises without such re-entry working in forfeiture of the Rents to be paid and
the covenants, agreements and conditions to be kept and performed by Tenant for
the initial term and any renewal periods of this Lease; and/or (5) remove all
property of Tenant from the Premises and such property may be removed and stored
in an appropriate warehouse or elsewhere at the cost of and for the account of
the Tenant, with evidence of notice and resort to legal process and without
being deemed guilty of trespass or becoming liable for loss or damage which may
be occasioned thereby; and/or (6) have the right but not the obligation to
divide or subdivide the Premises in any manner Landlord may determine and to
lease or let the same or portions thereof for such periods of time and at such
rentals and for such use and upon such covenants and conditions as Landlord may
elect, applying the net rentals for such letting first to the payment of
Landlord's expense incurred in repossessing the Premises and the cost and
expense of making such improvements in the Premises as may be necessary in order
to enable Landlord to re-Iet the same, and to the payment of any brokerage
commission, and reasonable attorneys' fees or other necessary expenses of
Landlord in connection with such repossession and re-Ietting with the balance,
if any, applied by Landlord from time to time on account of payments due or
payable by tenant hereunder, with the right reserved to Landlord to bring such
action or proceedings for the recovery of any deficits remaining unpaid as
Landlord may deem favorable from time to time, without being obligated to await
the end of the term hereof for the final determination of Tenant's account and
Tenant shall have no interest in any monies received upon re-Ietting.
B. Landlord may, at its option, while such default or violation of
covenant or condition continues, declare all or any portion of the Base Rent and
Additional Rent or other amounts due to Landlord from Tenant under this Lease,
and accrued and unpaid interest provided for in this Lease, for the full term of
this Lease remaining unpaid due and payable at once.
C. The various rights, remedies, powers and elections of Landlord,
reserved, expressed or contained in this Lease, are cumulative and no one of
them shall be deemed exclusive of the others or of such other rights, remedies,
powers, options or
elections which are now, or may hereafter be, conferred upon Landlord by law or
in equity. In addition to all other remedies, Landlord is entitled to the
restraint by injunction of all violations, actual, attempted or threatened of
any covenant, condition or provision of this Lease and it is specifically agreed
that Landlord shall not be required to prove irreparable harm, it being
stipulated by Tenant, or to post a bond in excess often Dollars ($10.00) in
connection with any injunction or restraining order pertaining to this Lease or
the Tenant's occupancy of the Premises.
D. Tenant agrees that Landlord shall retain a lien and have perfected
security interest in favor of Landlord for all improvements whether denominated
building, leasehold improvements or fixtures ("Improvements") constructed,
installed in or on the Premises and financed by Tenant as contemplated under
this Lease. The Tenant agrees upon the request of Landlord to execute financing
statements in favor of Landlord securing its interest in the Improvements, as
established hereunder. Tenant shall have the right to separately finance and
mortgage all leasehold improvements and equipment.
E. The parties hereto shall and they hereby do waive trial by jury in
any action, proceeding or counterclaim brought by either of the parties hereto
against the other on any matters whatsoever arising out of or in any way
connected with this Lease Agreement, the relationship of Landlord and Tenant,
Tenant's use or occupancy of the leased Premises, and/or any claim of injury or
damage.
F. In case suit shall be brought by Landlord for recovery of possession
of the leased Premises, for the recovery of Rent or any other amounts due to
Landlord from Tenant under the provisions of this Lease, or because of the
breach of any covenant herein contained on the part of Tenant to be performed,
and a breach shall be established, Landlord shall be entitled to receive as
additional damages all expenses incurred by Landlord in bringing such action,
including, but not limited to, reasonable attorneys' fees.
21. SUBORDINATION; ESTOPPEL CERTIFICATES.
A. Subordination. This Lease shall be subject and subordinate to each
mortgage, deed of trust, master lease, ground lease or other similar instrument
of encumbrance now or hereafter covering any or all of the Premises, (and each
renewal, modification, consolidation, replacement or extension thereof) (each of
which is herein referred to as a "Mortgage"), all automatically and without the
necessity of any action by either party hereto but only if holder of such
Mortgage agrees not to disturb Tenant's rights hereunder as provided herein.
B. Attornment and Non-Disturbance. Tenant shall promptly within ten
(10) days after the request of Landlord or the holder of any Mortgage
(hereinafter referred to as "Mortgagee"), execute, acknowledge and deliver such
further instrument or instruments evidencing such subordination as Landlord or
such Mortgagee deems necessary or desirable, and (at such Mortgagee's request)
attorning to such Mortgagee, provided that such Mortgagee agrees with Tenant
that such Mortgagee will, in the event of a foreclosure of any such Mortgage or
deed of trust (or termination of any such ground lease) take no action to
interfere with Tenant's rights hereunder, except on the occurrence of an event
of Default.
C. Subordination of Mortgage. Notwithstanding the foregoing
subparagraphs, any Mortgagee may at any time subordinate the lien of its
Mortgage to the operation and effect of this Lease without obtaining Tenant's,
or anyone claiming by, through or under Tenant, consent by giving Tenant written
notice thereof, in which event this Lease shall be deemed to be senior to such
Mortgage without regard to their respective dates of execution, delivery and/or
recordation, and thereafter such Mortgage shall have the same rights as to this
Lease as it would have had were this Lease executed and delivered before the
execution of such Mortgage.
D. Estoppel Certificates. Tenant shall from time to time within ten
(10) days after being requested to do so by Landlord or any Mortgagee, execute,
acknowledge and deliver to Landlord (or, at Landlord's request, to any existing
or prospective purchaser, transferee, assignee or Mortgagee) an instrument,
certifying (I) that this Lease is unmodified and in full force and effect (or,
if there has been any modification thereof, that it is in full force and effect
as so modified, stating therein the nature of such modification); (2) as to the
dates to which Rent and any other amounts due to Landlord from Tenant under this
Lease, and any other charges arising hereunder have been paid; (3) as to the
amount of any prepaid Rent or any credit due to the Tenant hereunder; (4) as to
the date that the Tenant has accepted possession of the Premises and the date on
which the Term commenced; (5) as to whether, to the best knowledge, information
and belief of the signer of such certificate, the Landlord or the Tenant is then
in default in performing any of its obligations hereunder (and, if so,
specifying the nature of each such default); and, (6) as to any other fact or
condition reasonably requested by Landlord or such other addressee; and
acknowledging and agreeing that any statement contained in such certificate may
be relied upon by Landlord and any other such addressee.
22. NOTICES. In every instance where it shall be necessary or desirable for
Landlord to serve any bill, notice or demand upon Tenant, such bill, notice or
demand shall be deemed sufficiently given or made if, in writing, mailed by
registered or certified, United States mail, postage prepaid, and addressed to
Tenant at the address indicated
on the first page of this Lease, and the time of giving or making such notice or
demand shall be deemed to be the time when the same is mailed as herein
provided. Any notice by Tenant to Landlord must be sent by registered, or
certified, United States mail, postage prepaid, addressed to the Landlord at the
address indicated on the first page of this Lease unless notified by Landlord,
in writing, of a different address to which notice is to be sent.
23. NO WAIVER.
A. No receipt of money by Landlord from Tenant with or without
knowledge of the breach of covenants of this Lease, or after the termination
hereof, or after the service of any notice, or after the commencement of any
suit, or after final judgment for possession of the Premises shall be deemed a
waiver of such breach, nor shall it reinstate, continue or extend the term or
any renewal period(s) of this Lease or affect any such notice, demand or suit.
B. No delay on the part of Landlord in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege preclude any other, or
further, exercise thereof or the exercise of any other right, power or
privilege.
C. No act done or thing said by Landlord or Landlord's agents or
employees shall constitute a cancellation, termination or modification of, or
eviction or surrender under this Lease or a waiver of any covenant, agreement or
condition hereof, nor relieve Tenant from Tenant's obligation to pay the Rent
reserved or other charges to be paid hereunder. An acceptance of surrender,
waiver or release by Landlord and any cancellation, termination or modification
of this Lease must be in writing signed by Landlord. The delivery of keys to any
employee or agent of Landlord shall not operate as a surrender or as a
termination of the Lease, and no such employee or agent shall have any power to
accept such keys prior to the termination of this Lease.
D. No payment by Tenant or receipt by Landlord of a lesser amount than
the Rent herein stipulated and reserved shall be deemed to be other than on
account of the earliest stipulated Rent then due and payable, nor shall any
endorsement or statement on any check, or letter accompanying any Rent check or
payment be deemed an accord and satisfaction, and Landlord may accept the same
without prejudice to Landlord's right to recover any balance due or to pursue
any other remedy in this Lease provided.
24. INABILITY TO PERFORM. This Lease and the obligation of Tenant to pay Rent
hereunder and perform all of the other covenants and agreements hereunder on
part
of Tenant to be performed shall in no wise be affected, impaired or excused
because Landlord is unable to fulfill any of its obligations under this Lease or
to supply or is delayed in supplying any service expressed or implied to be
supplied or is unable to supply or is delayed in supplying any equipment or
fixtures if Landlord is prevented or delayed from doing so by reason of strike
or labor troubles or any outside cause whatsoever including, but not limited to,
governmental preemption in connection with a national emergency or by reason of
a rule, order or regulation of any department or subdivision thereof or of any
government agency or by reason of the conditions of supply and demand which have
been or are affected by war or other emergency, or by reason of any fire or
other casua.lty or act of God.
25. MECHANICS' LIENS. If, because of any act or omission of Tenant or anyone
claiming by, through or under Tenant, any mechamcs' or other lien or order for
payment of money shall be filed against the Premises, or against Landlord
(whether or not such lien or order is valid or enforceable as such). Tenant
shall, at Tenant's own cost and expense, cause the same to be cancelled and
discharged of record within thirty (30) days after the date of filing thereof,
and shall also indemnify and save harmless Landlord from and against any and all
costs, expenses, claims, losses or damages, including reasonable counsel fees,
resulting therefrom or by reason thereof.
26. PARKING. For the term of this Lease the Tenant and its agents, employees,
servants, contractors, licensees and invitees shall have the non-exclusive right
to park passenger motor vehicles in the parking areas adjoining the Premises. It
is understood that Tenant holds such right upon the terms and conditions herein;
and the further understanding that such areas shall not include any part
thereoflimited to and so designated by the Landlord solely for the use by
Landlord or its agents or for visitors to the Project. Also, Tenant agrees that
no vehicles will be parked or staged in the area that may be required from time
to time by Landlord for the free flow of traffic to and from the building.
Nothing contained herein shall act as a guarantee by Landlord of sufficient
space for parking nor shall Landlord be responsible for the safety of Tenant,
its employees, invitees, customers and/or agents and or the property of said
persons while in or located upon the parking areas.
27. SEPARABILITY. The holding of any court that any provision in this Lease is
invalid or unenforceable shall not atfect the remaining provisions of this Lease
which shall remain in full force and effect.
28. BROKER. Custom Cuts of St. Paul, Inc., Custom Cuts of Columbus, Inc. and
Brad Beckman, individually, jointly and severally shall be responsible for the
payment of all commissions due to Joe Polis of Polis & Simon, Inc., Realtors and
Michael C. Spencer Of Ruscilli Real Estate Services, Inc. Landlord hereby
represents and warrants to Tenant
and Tenant hereby represents and warrants to Landlord that no other real estate
brokers have been retained in connection with this Lease and each shall hold the
other harmless and indemnify the other for any such commission.
29. LEASE CONTINGENT UPON. It is agreed that this lease agreement is contingent
upon (I) Tenant obtaining, within ninety (90) days, after the date first above
set forth, USDA approval of the Premises and Tenant's use of same; (2) Tenant
obtaining necessary permits and approvals to complete all renovations and
remodeling of the Premises; and, (3) Tenant obtaining, within sixty (60) days,
after the date first above set forth, acceptable financing to complete all
renovations and remodeling of the Premises. Tenant shall use its best efforts to
obtain such approvals. In the event Tenant is unable, after making a
commercially reasonable and good faith effort to do so, to obtain any of the
approvals required herein, Tenant shall immediately notify Landlord in writing
of its failure to obtain the necessary approvals, and shall, within ten (10)
days of providing notice, vacate the Premise, and return the Premises to
Landlord in the same or similar condition as it was at the time Tenant took
possession of same and this Lease shall be deemed to be null and void and all
obligations and rights of Landlord and Tenant, except for Landlord's right to
retain all sums paid and to collect all sums due as of the date Tenant vacates
the Premises pursuant to this paragraph, shall terminate. One hundred (100) days
after the date first above written, should Tenant have failed to provide notice
as provided herein of its inability to obtain the approvals noted above, the
contingencies of this paragraph are deemed to have been waived by Tenant.
30. ENTIRE AGREEMENT. This Lease contains the entire agreement between the
parties hereto and shall not be modified in any manner except by an instrument
in writing executed by said parties or their respective successors in interest.
31. PARAGRAPH HEADINGS. The paragraph headings appearing in this Lease are
inserted only as a matter of convenience and for reference purposes, and in no
way define, limit or describe the scope and intent of this Lease, or any
paragraph hereof, nor in any way affect it.
32. QUIET ENJOYMENT. If Tenant shall (I) pay the Rent, the charges for services
stipulated herein and other amounts to be paId to Landlord by Tenant, and (2)
well and faithfully keep, perform and observe all of the covenants, agreements
and conditions herein stipulated be kept, performed and observed by Tenant,
Tenant shall at all times during the term of this Lease have the peaceable and
quiet enjoyment of the Premises without hindrance of Landlord or any person
lawfully claiming under Landlord, subject, however to the terms of this Lease
and any Mortgage against the Project, or any portion thereof.
33. ASSIGNS. The covenants, agreements and conditions contained in this Lease
shall bind and inure to the benefit of Landlord and Tenant and their respective
heirs, legal representatives, successors and assigns, subject, however, to the
provisions hereof requiring the consent of Landlord to any assignment of this
Lease or subletting of the Premises.
34. SECURITY DEPOSIT. Upon the execution hereof, Tenant shall deliver to
Landlord an amount equal to Six Thousand Four Hundred Forty-Four and 38/100
($6,444.38) hereunder which shall serve as a security deposit (the "Security
Deposit") to secure the full and faithful performance by Tenant hereunder.
Landlord shall have the right, but not the obligation, to use all or any part of
the Security Deposit to satisfy any default by Tenant hereunder, and in the
event Landlord as aforesaid, Tenant agrees to deliver to Landlord, on demand, an
amount equal to the amount so expended by Landlord plus such additional amount
(if any) as may be necessary to restore the Security Deposit to its full amount.
Landlord's Security Deposit shall not bear interest. Upon the termination of the
term of this Lease (other than by reason of default of Tenant) the Security
Deposit shall be returned to Tenant by Landlord after deduction therefrom by
Landlord of Landlord's expenses, if any, in restoring the Premises to the
condition required herein. In the event of the termination of this Lease by
reason of default by Tenant, Landlord may retain any Security Deposit as minimum
stipulated damages, which shall not, however, preclude Landlord from asserting
any other claims against Tenant, or proving any additional damages or costs
suffered by Landlord (including reasonable attorney's fees) by reason of such
default, or pursuing any other remedies Landlord may have against Tenant.
35. MEMORANDUM OF LEASE. Landlord and Tenant agree not to record this Lease
Agreement but rather, upon request ot either party, agree to execute and record
a short form Memorandum of Lease complying with Revised Code ss.530 1.251.
36. CONSENT OF CUSTOM CUTS. Pursuant to a certain Settlement Agreement entered
into between the Landlord and Custom Cuts ot St. Paul, Inc., Custom Cuts of
Columbus, Inc. and Brad Beckman, individually (hereinafter collectively referred
to as "Custom Cuts") executed on or about March 25, 1999, Custom Cuts hereby
consents to Landlord entering into this Lease. Further, Landlord and Custom Cuts
agree that Custom Cuts shall be responsible for paying Landlord the amount of
Two Thousand Four Hundred Seventy-One and 111100 Dollars ($2,471.11) per month
on the first day of each and every month during the entire term of this Lease
pursuant to Paragraph 12(a) of the Settlement Agreement; provided, however, in
the event that Tenant terminates this Lease pursuant to Paragraphs 13 or 29 of
this Lease, then Custom Cuts shall be responsible for payment of Eight Thousand
Nine Hundred Fifteen and 49/100 Dollars ($8,915.49) per month from the date of
such termination
through January 31, 2005. In the event that Tenant does not terminate the Lease
pursuant to Paragraphs 13 or 29, then Custom Cuts' duties under Paragraphs 17
and 18 of the Settlement Agreement shall be deemed satisfied. Except as
expressly provided for in this Paragraph 36, all rights and duties of the
parties under the Settlement Agreement shall continue in full force and effect.
Notwithstanding any provision in this Paragraph 36 to the contrary, Tenant shall
continue to be fully liable for all amounts due pursuant to Paragraphs 7, 8 and
10 of the Settlement Agreement.
WITNESS WHEREOF, Landlord and Tenant have executed triplicate originals of this
Lease Agreement, effective as of the day, month and year first above written.
WITNESS: LANDLORD:
SIMON GROUP LIMITED PARTNERSHIP, an
Ohio limited Partnership
By: Simco Realty Ltd. An Ohio limited liability
company, its General Partner
_________________________ By:___________________________________
CHARLES M. SIMON, Managing Member
- -------------------------
WITNESS: TENANT:
Kahiki Foods, Inc., an Ohio corporation
By: _______________________________
Its_________________________________
WITNESS: AS TO PARAGRAPHS 28 and 36
CUSTOM CUTS OF ST. , INC., a Minnesota
corporation f/k/as BECKMAN PRODUCE,
INC.
_______________________ By:____________________________________
_______________________ Its:____________________________________
WITNESS: CUSTOM CUTS OF COLUMBUS, INC., a
Minnesota corp .
__________________________ By:__________________________
__________________________ Its:__________________________
ACKNOWLEDGMENT
STATE OF OHIO :
COUNTY OF FRANKLIN : ss
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named Landlord, Simon Group Limited Partnership, by its
general partner Simco Realty Ltd, by Charles M. Simon, its managing member, who
acknowledged that he did sign the foregoing instrument on behalf of said limited
liability company, and that the same was his free act and deed personally and on
behalf of said limited liability company.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal at Columbus,
Ohio this 30th day of December, 1999.
----------------------------
Notary Public
LESLIE A WHITE
ACKNOWLEDGMENT
STATE OF OHIO :
COUNTY OF FRANKLIN : ss
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named Tenant, Kahiki Foods, Inc., an Ohio corporation, by
______________,, its _____________, who acknowledged that he/she did sign the
foregoing instrument on behalf of said corporation, and that same was his/her
free act and deed personally and on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal at
Columbus, Ohio this 4th day of January,2000.
---------------------------
Notary Public
KENNETH H. KlSNER
Notary Public, State of Ohio
My Commission Expires Sept. l,
2003
ACKNOWLEDGMENT
STATE OF ______________________ :
COUNTY OF____________________: ss
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named Custom Cuts of St. Paul, Inc. f/k/a Beckman Produce, a
Minnesota corporation, by Brad Beckman, its CEO, who acknowledged that he/she
did sign the foregoing instrument on behalf of said' corporation, and that same
was his/her free act and deed personally and on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal at
____________________________Milwaukee, Wisc. This 31st day of December, 1999.
--------------------------------------
--------------------------------
Notary Public
JEFFREY TENDLER
ACKNOWLEDGMENT
STATE OF Wisconsin :
COUNTY OF MILWAUKEE: ss
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named Custom Cuts of Columbus, Inc., a Minnesota corporation,
by Brad Beckman, its CEO, who acknowledged that he/she did sign the foregoing
instrument on behalf of said corporation, and that same was hislher free act and
deed personally and on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal at
Milwaukee, Wisconsin, this 3lst day of December,' 1999.
-------------------------
Notary Public
JEFFREY TENDLER
ACKNOWLEDGMENT
STATE OF Wisconsin :
COUNTY OF Milwaukee : ss
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named Brad Beckman, Individually, who acknowledged that he
did sign the foregoing instrument, and that same was his free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal at Milwaukee,
Wisconsin, this 31st day of December, 1999.
---------------------------
Notary Public
JEFFREY TENDLER
EXHIBIT A
Description of Demised Premises
Description consists of a manual site plan showing the placement of the
buildings and parking spaces relative to Fourteenth Avenue.
UNCONDITIONAL GUARANTY
IN CONSIDERATION of the leasing by Simon Group Limited Partnership, an Ohio
limited partnership (hereinafter referred to as "Lessor") to Kahiki Foods, Inc.,
an Ohio corporation, (hereinafter referred to as "Guarantor"), by a Lease
Agreement dated the 27th day of December, 1999, to which this Unconditional
Guaranty is attached, of the Premises described in the Lease Agreement and in
consideration of other good and valuable consideration, the receipt and legal
sufficiency of all of which is hereby acknowledged, the undersigned
unconditionally guarantee to Lessor the due and punctual payment, to whomever
may be entitled thereto, of all monies payable by Lessee for and in respect of
the full term of the Lease Agreement and any assignment, extension, renewal, or
modification thereof including but not limited to any assignment, renewal or
modification beyond the expiration date of the original term, whether as base
rent, additional rent, damages, costs, expenses, or otherwise, and further
guarantee the performance of all the undertakings, covenants and obligations
imposed upon the Lessee by the Lease Agreement.
The undersigned expressly waive notice of the acceptance of this Unconditional
Guaranty and notice of any and all defaults under the Lease Agreement by the
Lessee, and waive any and all notices to which they might otherwise be entitled,
as Guarantor, under law. The undersigned hereby also agree and consent that
Lessor may, in its sole discretion, at any time without notice, and from time to
time: (a) grant any indulgence to Lessee with respect to the fulfillment and
performance by Lessee of any or all of their undertakings, covenants and
obligations of Lessee or under the Lease Agreement; and (b) adjust any dispute
with Lessee in connection with the Lease Agreement.
The obligations of this Guaranty shall be binding upon the undersigned, its
successors and assigns.
Executed this 4th day of January, 2000.
WITNESSES: GUARANTORS:
- ----------------------------- --------------------------
MICHAEL TSAO
__________________________ ALICE TSAO
Sworn to and subscribed in my Presence this 4th day of January, 2000.
[SEAL]
- -----------------------
Notary Public
KENNETH H. KISNER
NOTARY PUBLIC, STATE Of OHIO
MY COMMISSION EXPIRES SEPT l,2003