AMENDED AND RESTATED LEASE AGREEMENT BY AND BETWEEN RONALD C. WORNICK, AS LANDLORD, AND SHELF STABLE FOODS, INC., AS TENANTLease Agreement |
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Exhibit 10.12
AMENDED AND RESTATED LEASE AGREEMENT BY AND BETWEEN RONALD C. WORNICK, AS LANDLORD, AND SHELF STABLE FOODS, INC., AS TENANT
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AMENDED AND RESTATED LEASE AGREEMENT
The Lease Agreement effective December 30, 1994, between RONALD C. WORNICK, as “LANDLORD”, and SHELF STABLE FOODS, INC., an Ohio corporation, as “TENANT” is amended and restated in its entirety by this Amended and Restated Lease Agreement (this “Lease”) as follows:
WITNESSETH :
Section 1. Certain Definitions.
Each of the terms set forth below shall have the meaning set forth opposite such term:
a. Land : The real property located in Blue Ash, Hamilton County, Ohio, described on the attached Exhibit “A”.b. Improvements : The improvements located on the Land.c. Leased Premises : The Land and Improvements.d. CPI : The Consumer Price Index for All Urban Consumers, All Items (Base year 1982 - 1984 = 100) published by the United States Department of Labor, Bureau of Labor Statistics. If the Bureau of Labor Statistics substantially revises the manner in which the CPI is determined, an adjustment shall be made in the revised index which would produce results equivalent, as nearly as possible, to those which would be obtained hereunder if the CPI were not so revised. If the 1982 - 1984 average shall no longer be used as an Index of 100, such change shall constitute a substantial revision. If the CPI becomes unavailable to the public because publication is discontinued, or otherwise, LANDLORD shall substitute therefor a comparable index based upon changes in the cost of living or purchasing power of the consumer dollar published by a governmental agency, major bank, other financial institution, university or recognized financial publisher. Under no circumstances shall a decrease in the CPI ever reduce the monthly rent or give rise to a credit in favor of TENANT.e. CPI Rent Adjustment and CPI Rent Adjustment Dates : The CPI Rent Adjustment shall take place on the following dates:(1) January 1, l998 — “First Rent Adjustment Date”(2) January 1, 200l — “Second Rent Adjustment Date”(3) January 1, 2004 — “Third Rent Adjustment Date”(4) January 1, 2007 — “Fourth Rent Adjustment Date”f. Fair Market Value or Fair Market Value Purchase Price : “Fair Market Value” and “Fair Market Purchase Price” shall be determined by appraisal as set forth in this paragraph. In the event that it becomes necessary to determine the Fair Market Value or Fair Market Value Purchase Price of the Leased Premises for any purpose of this Lease, the party required or permitted to give notice of such required determination shall include in the notice the name of a person selected to act as an appraiser on its behalf. Within ten (10) days after receipt of any such notice, LANDLORD (or TENANT, as the case may be) shall by notice to TENANT (or LANDLORD, as the case may be) appoint a second person as an appraiser on its behalf. The appraisers thus appointed (each of whom must be a member of the American Institute of Real Estate Appraisers or any successor organization thereto), within forty-five (45) days after the date of the notice appointing the first appraiser, shall proceed to appraise the Leased Premises to determine the Fair Market Value or Fair Market Value Purchase Price thereof as of the relevant date (giving effect to the impact, if any, of inflation or deflation from the date of their decision to the relevant date); provided, however, that if only one appraiser shall have been so appointed, or if two appraisers shall have been so appointed but only one such appraiser shall have made such determination within fifty (50) days after the making of TENANT’s or LANDLORD’s request, then the determination of such appraiser shall be final and binding upon the parties. If two appraisers shall have been appointed and shall have made their determinations within the respective requisite periods set forth above and if the difference between the amounts so determined shall not exceed ten percent (10%) of the lesser of such amounts, then the Fair Market Value or Fair Market Value Purchase Price shall be an amount equal to fifty percent (50%) of the sum of the amounts so determined. If the difference between the amounts so determined shall exceed ten percent (10%) of the lesser of such amounts, then such two appraisers shall have twenty (20) days to appoint a third appraiser, but if such appraisers fail to do so, then either party may request the American Arbitration Association or any successor organization thereto to appoint an appraiser within twenty (20) days of such request, and both parties shall be bound by any appointment so made within such 20-day period. If no such appraiser shall have been appointed within such twenty (20) days or within ninety (90) days of the original request for a determination of Fair Market Value or Fair Market Value Purchase Price, whichever is earlier, either LANDLORD or TENANT may apply to any court having jurisdiction to have appointment made by such court. Any appraiser appointed by the American Arbitration2Association or by such court shall be instructed to determine the Fair Market Value or Fair Market Value Purchase Price within thirty (30) days after appointment of such appraiser. The determination of the appraiser which differs most in terms of dollar amount from the determinations of the other two appraisers shall be excluded, and fifty percent (50%) of the sum of the remaining two determinations shall be final and binding upon LANDLORD and TENANT as the Fair Market Value or Fair Market Value Purchase Price for such interest. This provision for determination by appraisal shall be specifically enforceable to the extent such remedy is available under applicable law, and any determination hereunder shall be final and binding upon the parties except as otherwise provided by applicable law. LANDLORD and TENANT shall each pay the fees and expenses of the appraiser appointed by it and each shall pay one-half of the fees and expenses of the third appraiser and one-half of all other costs and expenses incurred in connection with each appraisal. Notwithstanding any determination otherwise by such appraisal, the Fair Market Value and Fair Market Value Purchase Price shall not be less than the amount of the outstanding principal and accrued unpaid interest on all indebtedness of LANDLORD for which the Leased Premises is pledged as collateral to secure payment and performance.Section 2. Leased Premises.
a. In consideration of the conditions, covenants and agreements hereinafter set forth to be kept and performed by TENANT, LANDLORD does hereby lease the Leased Premises to TENANT, and TENANT does hereby lease the Leased Premises from LANDLORD.
b. This Lease and the Leased Premises are subject to all covenants, easements, restrictions, encumbrances and governmental regulatory ordinances to the extent they are valid and in force and effect.
Section 3. Term of Lease.
a. This Lease shall be for a term commencing on December 30, 1994, and terminating at midnight on December 31, 2010.b. TENANT shall remain bound by this Lease in accordance with its terms and nothing shall entitle TENANT to any abatement, reduction, suspension or deferment of the monthly rental or other sums payable by TENANT hereunder, except as otherwise specifically provided in this Lease.3Section 4. Rental.
TENANT agrees to pay LANDLORD a rental of $47,666.66 per calendar month subject to increase as provided herein. All rentals shall be due and payable monthly in advance on the first day of each month without the right of setoff or deduction except as expressly provided herein. If this Lease commences on other than the first day of a month, then the rental for such month shall be prorated based on the number of days in such month that the Lease was in force.
Section 5. Use of Premises.
Subject to the terms and provisions of this Lease Agreement, TENANT may use the Leased Premises for any lawful purposes.
Section 6. Operation of Business.
TENANT covenants and agrees as follows:
a. Not to permit any illegal or immoral practice to be carried on or committed on the Leased Premises; or use or allow the Leased Premises to be used for any purpose that might invalidate or increase the rate of insurance on the Leased Premises.
b. Not perform any act or carry on any practice on the Leased Premises which may damage the Leased Premises or which would constitute a nuisance.
Section 7. Care of Leased Premises.
a. TENANT shall not make any alterations or additions to the Leased Premises without the prior written consent of LANDLORD, and any such additions and alterations made by TENANT shall become and remain the property of LANDLORD at the termination of this Lease, except to the extent that LANDLORD agrees otherwise in the above required written consent. All authorized alterations, additions and improvements which are erected, constructed or installed by TENANT shall comply with all applicable governmental laws, ordinances, regulations and other requirements.b. TENANT shall keep the Leased Premises in good working order, repair and condition (which repairs shall include necessary replacements and all expenditures required to comply with all laws now or hereafter enacted, whether the work is structural, involves a capital expenditure or results in a benefit extending beyond the term of this Lease). TENANT is presently occupying the Leased Premises, and agrees to accept the same “AS IS” without any agreements, representations,4understandings or obligations on the part of LANDLORD to perform any alterations, repairs or replacement.Section 8. Fixtures.
TENANT shall be permitted to install and maintain its trade fixtures and equipment on the Leased Premises, and all such trade fixtures and equipment may be removed by TENANT, provided, however, that any damage to the Leased Premises caused by such removal shall be promptly repaired by TENANT.
Section 9. Insurance.
a. At all times during the term of this Lease, TENANT, as additional rent, shall purchase and maintain a policy or policies of comprehensive general liability insurance providing personal injury and property damage liability coverages with respect to the Leased Premises and the business conducted thereon, with limits approved by LANDLORD. Such insurance policy or policies shall name both TENANT, LANDLORD and LANDLORD’s mortgagee of the Leased Premises as named insureds.b. TENANT, as additional rent, shall purchase and maintain during the term of this Lease “all risk” casualty insurance policies covering the Improvements, together with such endorsements as may reasonably be required by LANDLORD from time to time to fully insure the Improvements on a replacement cost basis. Such insurance policy(s) shall name LANDLORD as the insured, and shall provide a loss payable clause in favor of LANDLORD and any mortgagee of the LANDLORD.c. If LANDLORD so requests, TENANT, as additional rent, shall purchase and maintain a rental value insurance policy covering risk of loss during the first twelve (12) months of reconstruction necessitated by the occurrence of any of the hazards described in Section 14, Casualty Damage, in an amount covering at least twelve months rental. Such insurance policy shall name LANDLORD as the insured. Any loss proceeds collected by LANDLORD pursuant to such policy shall be used to defray TENANT’s rental obligation to the extent of such amounts actually received by LANDLORD.d. Each of the foregoing policies of insurance shall be in form and written by insurers approved by LANDLORD, which approval shall not be unreasonably withheld, and shall provide that the insurers will not cancel or change such insurance without first giving LANDLORD, TENANT and LANDLORD’s mortgagee not less than ten (10) days prior written notice. LANDLORD and LANDLORD’s mortgagee shall be furnished a duplicate original of all such insurance policies.5e. If TENANT fails to timely provide the liability, casualty or the rental value insurance specified in this Section 9, then LANDLORD may elect to provide such insurance and, in such event, TENANT shall pay to LANDLORD, as additional rent, the cost of such insurance within ten (10) days after receipt of a statement of such costs from LANDLORD.Section 10. Indemnification.
TENANT covenants and agrees to protect, indemnify and save LANDLORD and LANDLORD’s heirs, legal representatives and assigns harmless from all claims for damages and/or injuries to persons or property arising from injury to persons or property on or adjacent to the Leased Premises, including all costs, attorney’s fees, expenses and liabilities incurred in connection with any such claim or action, without limit and without regard to the cause or causes thereof or the negligence of LANDLORD, its agents, employees or any other person or entity, whether such negligence be sole, joint or concurrent, active or passive, or because of any defect in, on or upon the Leased Premises.
Section 11. Mutual Waiver of Subrogation.
LANDLORD hereby waives any right of recovery that LANDLORD may have against TENANT for the loss of or damage to any of LANDLORD’s property resulting from any cause whatsoever to the extent that collection for such loss or damage is made by LANDLORD under any insurance policy or policies in effect at the time such loss or damage occurs; and TENANT hereby waives any right of recovery that TENANT may have against LANDLORD for the loss of or damage to any of TENANT’s property resulting from any cause whatsoever to the extent that collection for such loss or damage is made by TENANT under any insurance policy or policies in effect at the time of such loss or damage. The mutual waivers set forth in this paragraph apply only to the extent they are permitted by law, the loss or damage is covered by insurance proceeds, and such waivers do not adversely affect any insurance coverage.
Section 12. Assignment, Mortgage and Subleasing.
a. Assignment by Tenant . TENANT shall not, whether by operation of law or otherwise, assign this Lease, or any part thereof, without the prior written approval of LANDLORD in each instance.b. Subleases . TENANT shall not sublease all or any part of the Leased Premises without prior written approval of LANDLORD.6c. Mortgages . TENANT shall not mortgage all or any part of TENANT’s leasehold estate without prior written approval of LANDLORD.d. Approvals by Landlord . LANDLORD agrees not to unreasonably withhold its consent to a proposed assignment, sublease or mortgage of the Leased Premises. The approval by LANDLORD of any of the acts specified in this Section shall not relieve TENANT, or TENANT’s authorized assignee, transferee or subtenant from liability under this Lease.Section 13. Net Lease.
TENANT agrees that this Lease is to be a “net lease” and that LANDLORD is to receive all rentals and other sums required to be paid by TENANT absolutely free from any charges, assessments, taxes, expenses or deductions of any kind.
Section 14. Casualty Damage.
a. All proceeds payable by reason of any loss or damage to the Leased Premises, or any portion thereof, and insured under any policy of insurance required by this Lease shall be paid to LANDLORD and held by LANDLORD in trust and shall be made available for reconstruction or repair, as the case may be, of any damage to or destruction of the Leased Premises, or any portion thereof, and shall be paid out by LANDLORD from time to time for the reasonable cost of such reconstruction or repair. Any excess proceeds of insurance remaining after the completion of the restoration or reconstruction of the Leased Premises shall be retained by LANDLORD free and clear upon completion of any such repair and restoration except as otherwise specifically provided below in this Section. In the event neither LANDLORD nor TENANT is required or elects to repair and restore, all such insurance proceeds shall be retained by LANDLORD. All salvage resulting from any risk covered by insurance shall belong to LANDLORD except that any salvage relating to additions paid for by TENANT or to TENANT’S personal property shall belong to TENANT.b.(1) If during the term of this Lease, the Leased Premises is totally or partially destroyed from a risk covered by the insurance described in Section 9 and the Leased Premises thereby is rendered unsuitable for TENANT’s use, TENANT shall have the option, by giving notice to LANDLORD within sixty (60) days following the date of such destruction, to (i) restore the Leased Premises to substantially the same condition as existed immediately before the damage or destruction, or (ii) offer to acquire the Leased Premises from LANDLORD for a purchase price equal7
to the Fair Market Value Purchase Price of the Leased Premises immediately prior to such damage or destruction.(2) If during the term of this Lease, the Leased Premises is partially destroyed from a risk covered by the insurance described in Section 9, but the Leased Premises is not thereby rendered unsuitable for TENANT’s use, TENANT shall restore the Leased Premises to substantially the same condition as existed immediately before the damage or destruction. Such damage or destruction shall not terminate this Lease; provided, however, if TENANT cannot within a reasonable time obtain all necessary governmental approvals, including building permits, licenses, conditional use permits and any certificates of need, after diligent efforts to do so, in order to be able to perform all required repair and restoration work and to operate the Leased Premises for TENANT’s use in substantially the same manner as immediately prior to such damage or destruction, TENANT may offer to purchase the Leased Premises for a purchase price equal to the Fair Market Value Purchase Price of the Leased Premises immediately prior to such damage or destruction.(3) If the cost of the repair or restoration exceeds the amount of insurance proceeds received by LANDLORD, TENANT shall be obligated to contribute any excess amount needed to restore the Leased Premises. Such amount shall be paid by TENANT to LANDLORD to be held in trust together with any other insurance proceeds for application to the cost of repair and restoration.(4) In the event LANDLORD does not accept TENANT’s offer to so purchase the Leased Premises within thirty (30) days after the date of such offer, TENANT may either (a) withdraw its offer to purchase the Leased Premises and proceed to restore the Leased Premises to substantially the same condition as existed immediately before the damage or destruction, or (b) terminate this Lease and LANDLORD shall retain the insurance proceeds, and TENANT shall pay to LANDLORD, on demand, the amount of any deductible or uninsured loss arising in connection therewith.(5) In the event LANDLORD accepts TENANT’s offer to purchase the Leased Premises, this Lease shall terminate upon payment of the purchase price and LANDLORD shall remit to TENANT all insurance proceeds being held in trust by LANDLORD.c. If during the term of this Lease, the Leased Premises is totally or materially destroyed from a risk not covered by the
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insurance described in Section 9, whether or not such damage or destruction renders the Leased Premises unsuitable for TENANT’s use, TENANT at its option shall restore the Leased Premises to substantially the same condition it was in immediately before such damage or destruction and such damage or destruction shall not terminate this Lease.d. All insurance proceeds payable by reason of any loss of or damage to and of TENANT’s personal property shall be paid to TENANT and TENANT shall use such insurance proceeds in trust to pay the cost of repairing or replacing the damage to TENANT’s personal property.e. If TENANT is required or elects to restore the Leased Premises as provided in this section, TENANT shall also restore all alterations and improvements made by TENANT, and TENANT’s personal property.f. This Lease shall remain in full force and effect and TENANT’s obligation to make rental payments and to pay all other charges required by this Lease shall remain unabated during any period required for repair and restoration, except that the proceeds of rental insurance, if any, paid to LANDLORD shall constitute payment of such amounts by TENANT.g. Any termination of this Lease pursuant to this Section shall cause any right of first refusal granted to LANDLORD under this Lease to be terminated and to be without further force or effect.h. LANDLORD hereby waives any statutory or common law rights of termination which may arise by reason of any damage or destruction of the Leased Premises.
Section 15. Risk of Loss.
During the term of this Lease, the risk of loss or of decrease in the enjoyment and beneficial use of the Leased Premises in consequence of the damage or destruction thereof by fire, the elements, casualties, thefts, riots, wars or otherwise, is assumed by TENANT and, LANDLORD shall in no event be answerable or accountable therefor nor shall any of the events mentioned in this Section entitle TENANT to any abatement of monthly rental except as specified provided in this Lease.
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Section 16. Default of Tenant.
1. Events of Default . The following events shall be deemed to be events of default by TENANT under this Lease:
a. If TENANT shall fail to pay any installment of rent, additional rent or other sum of money payable hereunder when due and the continuance of such failure for ten (10) days following written notice hereof from LANDLORD to TENANT.b. If TENANT shall fail to comply with any term, provision, or covenant of this Lease, other than the payment of rent, additional rent or other sum of money to LANDLORD, and shall not cure or correct such failure within a reasonable time but, in no event, more than thirty (30) days following notice; provided, however, if the nature of the TENANT’s failure is such that more time is reasonably required in order to cure, TENANT shall not be in default if TENANT commences to cure within such time period and thereafter with reasonable diligence seeks to cure such failure to completion.c. If a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of all or a portion of the property of TENANT shall be filed against TENANT in any court, pursuant to any statute either of the United States or of any state, and if, within thirty (30) days thereafter, TENANT fails to secure a discharge thereof, or if TENANT shall voluntarily file any such petition, or make an assignment for the benefit of creditors.d. If TENANT’s leasehold estate shall be taken under writ of execution or other process of law in any action against TENANT.e. If TENANT shall abandon or vacate the Leased Premises.2. Remedies . If an event of default shall have occurred, LANDLORD shall have the right, without further notice or demand of any kind to TENANT or any other party, then or at any time thereafter, to the extent permitted by law, to pursue any one or more of the following remedies in addition to all other rights or remedies provided herein or at law or in equity.
a. LANDLORD may terminate this Lease and forthwith repossess the Leased Premises and be entitled to recover forthwith as damages a sum of money equal to the total of (i) the reasonable cost of recovering the Leased Premises,
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(ii) the unpaid rent and additional rent earned at the time of termination, the cost of curing TENANT’s other defaults plus interest thereon from the due date at the rate herein provided, and (iii) an amount equal to the then present value of the balance of the rent and additional rent for the remainder of the term, less the then present value of the fair rental value of the Leased Premises for the remainder of the term. The amounts computed in accordance with the foregoing subclause (iii) shall both be discounted in accordance with accepted financial practice at the rate of four percent (4%) per annum to determine present value.b. LANDLORD may elect to terminate TENANT’s right of possession without terminating this Lease, in which event TENANT agrees to surrender possession and vacate the Leased Premises immediately and deliver possession to LANDLORD, and TENANT hereby grants LANDLORD full and free license to enter in and upon the Leased Premises or any part thereof and to expel or remove TENANT or any other person or party who may be occupying or within the Leased Premises or any part thereof and remove any and all property therefrom. Such property may be removed by LANDLORD and stored in a public warehouse or elsewhere at the cost of and for the account of TENANT without terminating this Lease or releasing TENANT in whole or in part from TENANT’s obligations to pay rent, additional rent and other charges and perform any of the covenants, conditions and agreements to be performed by TENANT as provided in this Lease, and without LANDLORD being deemed in any manner guilty of trespass, eviction, forcible entry or detainer, and without relinquishing LANDLORD’s rights as herein provided.c. If LANDLORD re-enters the Leased Premises without terminating this Lease, then LANDLORD may relet the Leased Premises or any part or parts thereof, either in the name of LANDLORD or otherwise, for a term which may at LANDLORD’s option be less than or exceed the period which would otherwise have constituted the balance of the term and upon such other terms and conditions as LANDLORD may deem advisable. TENANT shall pay LANDLORD for each month of the period which would otherwise have constituted the balance of the term, any deficiency between (i) the sum of one monthly installment of rent and other costs that would have been payable for the month in question but for such re-entry or termination, and (ii) the net amount, if any, of the rents collected on account of the lease or leases of the Leased Premises for each month of the period which would otherwise have constituted the balance of the term. The failure of LANDLORD to relet the Leased Premises or any part or parts thereof shall not release or affect TENANT’s liability for damages; provided, however, that LANDLORD shall use
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reasonable efforts to relet the Leased Premises. There shall be added to the said deficiency such expenses as LANDLORD may reasonably incur in connection with any reletting (such as court costs, attorney’s fees, brokerage costs and expenses for putting and keeping the Leased Premises in good order or for preparing the same for reletting). Any deficiency shall be paid in monthly installments by TENANT on the rent day specified in this Lease, and any suit brought to collect the amount of the deficiency for any month shall not prejudice in any way the rights of LANDLORD to collect the deficiency for any subsequent month by a similar proceeding. No such re-entry or taking possession of the Leased Premises by LANDLORD shall be construed as an election on its part to terminate this Lease unless a written notice of such termination is given to TENANT or unless the termination thereof is decreed by a court of competent jurisdiction.Any amount collected by LANDLORD from subsequent Tenants for any rental period in excess of that provided for in this Lease for such period shall be credited to TENANT in reduction of TENANT’s liability for any rental period in which the amount collected by LANDLORD shall be less than that provided for by this Lease; but TENANT shall only be entitled to receive any such excess rentals at the end of the term and without interest. An election to re-enter the Leased Premises (without terminating this Lease) and the reletting or not reletting of the Leased Premises shall not thereafter prevent LANDLORD from electing to terminate this Lease for such previous breach.
In the event it is necessary for LANDLORD to bring suit for such rental payments or other charges as they accrue or in order to collect any damages, LANDLORD shall have the right to allow such rental or deficiencies to accumulate and to bring an action on several or all of the deficiencies at one time. Any such suit shall not prejudice in any way the right of LANDLORD to bring a similar action for subsequent rental or damage deficiencies.
Section 17. Condemnation.
a.(1) “Condemnation” means (i) the exercise of any governmental power, whether by legal proceedings or otherwise, by a Condemnor or (ii) a voluntary sale or transfer by LANDLORD to any Condemnor, either under threat of Condemnation or while legal proceedings for Condemnation are pending.(2) “Date of Taking” means the date the Condemnor has the right to possession of the property being condemned.
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(3) “Award” means all compensation, sums or anything of value awarded, paid or received on a total or partial Condemnation.(4) “Condemnor” means any public or quasi-public authority, or private corporation or individual, having the power of Condemnation.b. If during the term of this Lease there is any taking of all or any part of the Leased Premises or any interest in this Lease by Condemnation, the rights and obligations of the partie |
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