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EXHIBIT 10.36
LINCOLN, NEBRASKA
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BF PROPERTIES COMPANY,
AS LESSOR
AND
FORMERLY XXXXXXXX FOODS CO., NOW XXXXXXXX COMPANIES, INC.
AS LESSEE
ASSIGNED TO XXXXXXXX DAIRY PRODUCTS, INC.
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LEASE AND AGREEMENT
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DATED AS OF FEBRUARY 15, 1972
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TABLE OF CONTENTS
Paragraph Heading Page
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Parties ........................................................... 1
1. Demise............................................................. 1
2. Title; Condition .................................................. 1
3. Use ............................................................... 1
4. Term .............................................................. 2
5. Rent .............................................................. 2
6. Net Lease; Non-Terminability ...................................... 3
7. Taxes and Other Charges; Compliance with Law and Agreements........ 5
8. Liens ............................................................. 6
9. Indemnification ................................................... 6
10. Maintenance and Repair ............................................ 7
11. Alterations and Additions; Reimbursement for Certain Costs and
Expenses .......................................................... 8
12. Condemnation and Casualty ......................................... 11
13. Insurance ......................................................... 13
14. Termination for Uneconomic Use .................................... 16
15. Purchase Option; Right of First Refusal ........................... 16
16. Purchase by Lessee ................................................ 17
17. Termination ....................................................... 18
18. Subletting; Assignment ............................................ 18
19. Advances by Lessor; Permitted Contests ............................ 19
20. Conditional Limitations -- Events of Default and Remedies ......... 20
21. Notices ........................................................... 26
22. Estoppel Certificates ............................................. 27
23. No Merger ......................................................... 27
24. Surrender ......................................................... 27
25. Separability ...................................................... 28
26. Binding Effect; Merger, Consolidation and Disposition of Assets ... 28
27. Lessee Empowered to Grant or Release Easements .................... 29
28. Certain Definitions ............................................... 29
29. Lessor's Covenants ................................................ 31
30. Miscellaneous ..................................................... 32
Execution Page .................................................... 33
Acknowledgments ...................................................
Schedule A -- Description of the Property
Schedule B -- Business Terms
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LEASE AND AGREEMENT dated as of February 15, 1972 (herein, as the same may
be amended or supplemented from time to time as permitted hereby, called "this
Lease"), between BF Properties Company, an Ohio limited partnership, as lessor
(herein called "Lessor"), having an address at 00 Xxxxxxxx Xxxxx, Xxx Xxxx, X.X.
00000, and Xxxxxxxx Foods Co., a Delaware corporation, as lessee (herein,
together with any corporation succeeding thereto by merger, consolidation or
acquisition of all or substantially all of its assets, called "Lessee"), having
an address at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
Lessor and Lessee hereby agree as follows:
1. Demise:
For and in consideration of the rents and other amounts hereinafter
stipulated to be paid and the provisions of this Lease hereinafter stipulated to
be observed and performed by Lessee, Lessor hereby demises and lets to Lessee,
and Lessee hereby takes and leases from Lessor, for the term described in
paragraph 4 and subject to the provisions hereinafter set forth, the parcel of
land described in Schedule A hereto, all buildings and other improvements
constructed and which may be constructed thereon and all easements, rights and
appurtenances thereto (herein called the "Property").
2. Title; Condition:
The Property is demised and let in its present condition without
representation or warranty by Lessor, subject to the rights of any parties in
possession thereof and to the state of the title thereto existing at the
commencement of the term of this Lease, to any state of facts which an accurate
survey or physical inspection might show, and to all applicable laws, rules,
regulations, ordinances and restrictions now in effect. Lessee has examined the
Property and Lessor's title thereto and has found the same satisfactory for all
purposes of this Lease.
3. Use:
Lessee shall have the right to occupy and use the Property for any purpose
not prohibited by any applicable laws, rules, regulations, ordinances or
restrictions, or agreements (including, without limitation, insurance policies),
now or hereafter in effect.
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4. Term:
(a) Subject to the provisions of this Lease, Lessee shall have and hold
the Property for the term of this Lease, which shall commence on February 25,
1972 and end at midnight on February 25, 2002 (such period herein called "the
Basic Term"), unless extended as provided in paragraph 4(b).
(b) Lessee shall have the right to extend the term of this Lease beyond
the Basic Term for six separate and additional successive periods of five years
each (each such period herein called an "Extended Term"). Each Extended Term
shall be at the sole option of Lessee, and Lessee shall exercise its option to
extend the term of this Lease for the next succeeding Extended Term by notice to
Lessor, given not less than 90 days prior to the expiration of the term of this
Lease then in effect. If Lessee elects not to exercise any such option, Lessee
shall not have the right to exercise any such option thereafter. The term of
this Lease may not be extended beyond the thirtieth anniversary of the last day
of the Basic Term.
5. Rent:
(a) During the term of this Lease, Lessee shall pay to Lessor, in lawful
money of the United States and in immediately available funds, at Lessor's
address set forth above or at such other place or to such other person as Lessor
from time to time may designate, the rental provided for in Schedule B hereto
which is then applicable (such rental herein called "Basic Rent"). Basic Rent
shall be payable by Lessee in instalments in the amounts provided for in
Schedule B hereto and be due and payable on the dates (herein called "Payment
Dates") provided for in Schedule B hereto.
(b) All sums, liabilities, obligations and other amounts which Lessee is
required to pay or discharge pursuant to this Lease in addition to Basic Rent
(other than any amount payable as the purchase price for the Property or a part
thereof pursuant to any provision of this Lease and any amount payable as
liquidated damages pursuant to paragraph 20(b)(ii)(B)), together with any
interest, penalty, or other sum which may be added for late payment thereof,
shall constitute additional rent hereunder (herein called "Additional Rent"). In
the event of any failure on the part of Lessee to pay or discharge any of the
foregoing, Lessor shall have all rights, powers and remedies pro-
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vided for herein or by law or equity or otherwise in the case of non-payment of
Basic Rent. Lessee may pay Additional Rent directly to the person entitled
thereto, provided Lessee shall not be in default hereunder. Lessee will pay to
Lessor, on demand, interest at the rate of 8 1/2% per annum (or at the highest
rate not prohibited by applicable law, whichever is less) on (i) overdue
installments of Basic Rent, from the due date thereof until paid, and (ii) any
amounts which Lessor shall have paid and which shall be payable by Lessee as
Additional Rent, from the date of payment thereof by Lessor until repaid to
Lessor by Lessee.
6. Net Lease; Non-Terminability:
(a) This Lease is a net lease and, except as otherwise in this Lease
expressly provided, Lessee shall pay all costs, taxes, assessments and other
expenses of every character, foreseen or unforeseen, for the payment of which
Lessor or Lessee is or shall become liable by reason of its estate or interest
in the Property, or which are connected with or arise out of the possession,
use, occupancy, maintenance, repair or rebuilding of the Property or any
portion thereof, including, without limitation, those specifically referred to
in this Lease. Basic Rent, Additional Rent and any and all other amounts
payable by Lessee hereunder, including, without limitation, the purchase price
and other amounts which may become payable pursuant to paragraph 12(b) or
paragraph 14, shall be paid by Lessee without notice or demand except as
otherwise in this Lease expressly provided, and without any set-off,
counterclaim, deduction, defense, abatement or reduction of any kind or for any
reason except as otherwise provided in paragraph 29.
(b) Except as otherwise expressly provided in paragraph 11(c), 12(b), 14,
15(a), 16(b), 17 and 20 of this Lease, this Lease shall not terminate nor shall
Lessee have any right to terminate this Lease or to be released or discharged
from any obligations or liabilities hereunder for any reason including, without
limitation, any damage to, or destruction of, the Property or any portion
thereof; any limitation, restriction, deprivation (including eviction) or
prevention of, or any interference with, any use or the occupancy or possession
of the Property or any portion thereof (whether due to any defect in or
impairment of, or the partial or complete failure of, Lessor's title to the
Property or otherwise); any condemnation, confiscation, requisition or
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other taking or sale of the possession, use, occupancy or title to the Property
or any portion thereof; any action, omission or breach on the part of Lessor
under this Lease or under any other agreement at the time existing between
Lessor and Lessee; the inadequacy, incorrectness or failure of the description
of the Property or any portion thereof to demise and let to Lessee the property
intended to be leased hereby; any claim as a result of any other business
dealings of Lessor and Lessee; Lessee's acquisition of ownership of the
Property or any portion thereof or any sale or other disposition of the
Property or any portion thereof; the impossibility of performance by Lessor or
Lessee or both; force majeure; any action or threatened or pending action of
any court, administrative agency or other governmental authority; or any other
cause, whether similar or dissimilar to the foregoing, any present or future
law notwithstanding.
(c) Lessee will remain obligated under this Lease in accordance with its
terms, and will not take any action to terminate (except in accordance with the
express provisions hereof), rescind or avoid this Lease for any reason,
notwithstanding any bankruptcy, insolvency, reorganization, composition,
readjustment, liquidation, dissolution or other proceeding affecting Lessor or
any assignee of Lessor, or any action with respect to this Lease which may be
taken by any receiver, trustee or liquidator (or other similar official) or by
any court. All payments by Lessee of Basic Rent, Additional Rent and other
amounts payable by Lessee hereunder shall be final and Lessee will not seek to
recover any such payment or any part thereof for any reason. Lessee waives all
rights now or hereafter conferred by statute or otherwise to quit, terminate
or surrender this Lease, or to any abatement or reduction of Basic Rent,
Additional Rent or other amounts payable by Lessee hereunder, or for damage,
loss, cost or expense suffered by Lessee, on account of any of the reasons
referred to in paragraph 6(b) or this paragraph 6(c) or otherwise.
(d) If for any reason the Basic Rent payable under this Lease shall be
diminished or subject to diminution through attachment, demand, lien, levy,
process or otherwise, by reason of any taxes, costs, expenses, indebtedness,
obligations or liabilities of any character incurred by any person, or by
reason of any demands, charges or liens of any nature against any person or
against such Basic Rent, so that such Basic Rent shall be rendered inadequate
to pay when due the payments
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of interest and principal on the indebtedness secured by the Mortgage, or if
the application of such Basic Rent by the Trustees to the payments of interest
and principal on the Notes shall be delayed, hindered or prevented, or the
right of the Trustees to apply the same shall be in any way adversely affected,
or if the registered owners of the Notes shall be subject to any liability to
refund or pay over the same, Lessee will indemnify the Trustees against any
liability which may arise from any such application to payments on the Notes
and will indemnify the registered owners of the Notes from any obligation to
refund or pay over any such amount, and will pay an additional sum payable on
each Payment Date under this Lease sufficient to pay and discharge all such
taxes, costs, expenses, indebtedness, obligations, liabilities, claims,
demands, charges and liens, and to eliminate or prevent such delay, hindrance,
obstacle or liability, and to protect fully such right.
7. Taxes and Other Charges; Compliance With Law and Agreements:
(a) Subject to the provisions of paragraph 19(b), Lessee shall pay and
discharge, prior to the imposition of any interest or penalty for delinquency
in payment, all taxes, assessments, fees, water and sewer rents and other
governmental and similar charges, general and special, ordinary or
extraordinary, and any interest and penalties thereon, which are levied or
assessed against (i) Lessor, (ii) the Property or any portion thereof or the
interest of Lessee or Lessor therein or in respect thereof, (iii) Basic Rent,
Additional Rent or any or all other amounts payable by Lessee hereunder, (iv)
this Lease or the interest of Lessee or Lessor hereunder, (v) the possession,
use, occupancy, construction, maintenance, repair or rebuilding of the Property
or any portion thereof, (vi) gross receipts from the Property or any portion
thereof, or (vii) the earnings arising from the possession, use or occupancy
thereof; but nothing in this Lease shall require payment by Lessee of any
franchise, estate, inheritance, succession, transfer (other than pursuant to
paragraph 16(b)), income or profits taxes of Lessor (but such enumeration of
taxes not required to be paid by Lessee shall not include any tax computed as a
percentage of gross receipts from any Basic Rent or Additional Rent), unless
such tax is in lieu of or a substitute for another tax or assessment which, if
such other tax or assessment were in effect, would be payable by Lessee. If any
tax or assessment levied or assessed against the Property may legally be
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paid in installments, Lessee shall have the option to pay such tax or assessment
in installments, and Lessee shall be obligated to pay only such installments as
shall be properly allocated to periods within the term hereof.
(b) Lessee shall pay all charges for utility, communication and other
services rendered or used on or about the Property.
(c) Lessee shall at its cost and expense, comply with, and cause the
Property to comply with, all applicable laws, rules, regulations, ordinances
and restrictions and insurance policies, now or hereafter in effect, all
applicable agreements affecting the Property to which Lessee is a party or by
which it is bound, now or hereafter in effect, and all applicable agreements
legally affecting the Property of which Lessee now has notice and which are now
in effect, including those which require the making of any structural,
unforeseen or extraordinary changes.
(d) Lessee shall furnish to Lessor, within 10 days after demand by
Lessor, proof of the payment of any such tax, assessment, fee, water or sewer
rent or other governmental or similar charge, or any such other charge, which is
payable by Lessee.
8. LIENS:
Subject to the provisions of paragraph 19(b), Lessee will remove and
discharge promptly, at its cost and expense, all liens, encumbrances and
charges upon the Property or any part thereof, Lessee's leasehold interest
therein or the Basic Rent or Additional Rent, which arise for any reason
whatever, including all such liens, encumbrances and charges which arise out of
the ownership, possession, use, occupancy, construction, maintenance, repair or
rebuilding of the Property or by reason of labor or materials furnished or
claimed to have been furnished to Lessee or otherwise, but excluding Permitted
Liens and all liens, encumbrances, and charges upon the Property created by
Lessor, or created by the Trustees other than those created by them in the
exercise of their rights as assignee of the rights of Lessor under this Lease.
9. INDEMNIFICATION;
Lessee shall pay, and shall protect, indemnify and hold Lessor, the
Mortgagee and the Trustees harmless from and against, any and all liabilities,
losses, damages, costs, expenses (including attorneys'
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fees and expenses), causes of action, suits, claims, demands or judgements of
any nature arising, or alleged to rise, from or in connection with (a) any
injury to, or the death of, any person or any damage to or loss of property on
or near the Property in any manner growing out of or connected with, or alleged
to grow out of or be connected with, the ownership, possession, use, occupancy,
construction, maintenance, repair or rebuilding of the Property or any portion
thereof, or the adjoining land, or of any other real or personal property used
or occupied in connection with the Property or any portion thereof (whether
owned or under the control of Lessee or any other person) or resulting, or
alleged to result, from the condition of any thereof; (b) violation, or alleged
violation, of any provision of this Lease or of any law, rule, regulation,
ordinance, restriction, or insurance policy, now or hereafter in effect, or of
any agreement to which Lessee is a party or by which it is bound, now or
hereafter in effect, or of any agreement of which Lessee now has notice and
which is now in effect, legally affecting or applicable to the Property or any
portion thereof or the ownership, possession, use, occupancy, construction,
maintenance, repair or rebuilding thereof or of adjoining passageways, sidewalks
or streets; (c) any contest permitted by paragraph 19(b); or (d) Lessee's
failure to pay any Additional Rent when and as the same shall become due and
payable; except that Lessee shall not be obligated to pay, or to indemnify any
other person against, any liabilities, losses, damages, costs, expenses,
attorneys' fees and expenses, causes of action, suits, claims, demands or
judgments arising from or growing out of the wilful conduct or negligence of
Lessor or of the Trustees.
10. Maintenance and Repair
(a) Lessee will, at its cost and expense, keep and maintain the Property
in good repair and condition, except for ordinary wear and tear, and will
promptly make all structural and non-structural, and ordinary and extraordinary
changes and repairs of every kind which may be required to be made upon or in
connection with the buildings and other improvements to the Property in order
to keep the same in good repair and condition. Lessor shall not be required to
maintain, alter, repair, rebuild or replace any buildings or other improvements
to the Property or to maintain the Property in any way, and Lessee expressly
waives the right to make repairs at the expense of Lessor which may be provided
for in any law now or hereafter in effect.
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(b) If any present or future improvement to the Property shall encroach
upon any property or street adjacent to the Property, or shall violate any
agreement or condition contained in any restrictive covenant affecting or
applicable to the Property, or shall impair the rights of others under any
easement or right-of-way to which the Property is subject, then upon request of
Lessor, Lessee shall, at its cost and expense, take such action as shall be
necessary to remove such encroachment or end such violation or impairment. Any
such action shall be taken in conformity with the requirements of paragraph
11(a). Notwithstanding the foregoing, Lessee shall not be required to remove
any such encroachment, or end any such violation or impairment existing on the
date of commencement of the term of this Lease: (i) unless and until required
so to do by the provisions of a judgment or decree entered in legal proceedings
instituted by the owner of the property encroached upon or the public authority
having jurisdiction of any such street or the party entitled to enforce any
such restriction, as the case may be, provided Lessee shall in good faith and
with due diligence contest such proceedings and prevent any forfeiture of the
Property and hold Lessor harmless for all damages, fines, costs and expenses
arising from such proceedings; or (ii) if Lessee has or obtains such easements,
licenses or similar rights as may be necessary to permit such encroachment to
remain.
11. Alterations and Additions; Reimbursement for Certain Costs and
Expenses:
(a) Lessee may, at its cost and expense, make additions, substitutions,
replacements or improvements to or alterations of the buildings and other
improvements to the Property (and may demolish such buildings and
improvements), in conformity with the requirements of this paragraph 11(a). If
such additions, substitutions, replacements or improvements result in costs and
expenses to Lessee in excess of $100,000, Lessee shall notify Lessor that such
additions, substitutions, replacements or improvements have been or are being
made to the Property. Title to all additions, improvements, substitutions,
replacements and alterations, and to all new buildings, structures and
improvements constructed on the Property from time to time, including any and
all fixtures located therein or thereon, shall immediately vest in Lessor and
such additions, improvements, alterations, buildings, structures,
substitutions, replacements and improvements shall be a part of
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the Property. Any action shall be deemed to have been taken in conformity with
the requirements of this paragraph 11(a), if (i) the market value of the
Property shall not be materially lessened by reason thereof, (ii) such action
shall have been expeditiously completed in a good and workmanlike manner in
compliance with all applicable laws, rules, regulations, ordinances,
restrictions, insurance policies and agreements to which Lessee is a party or
by which it is bound, then in effect, and all applicable agreements legally
affecting the Property of which Lessee has notice and are then in effect, (iii)
in the case of any total or material demolition of the buildings or other
improvements, Lessee shall, prior to the commencement thereof, furnish Lessor
with an acceptable surety bond or bonds, or other security satisfactory to
Lessor, the acceptance of which bond, bonds or other security by Lessor shall
not be unreasonably withheld, to assure the reconstruction of alterations,
additions, substitutions or replacements, the fair market value of which shall
be not less than the fair market value of the buildings or other improvements
to be demolished, (iv) Lessee shall have procured and paid for all permits and
licenses required in connection therewith, and (v) during the period when any
addition, improvement, substitution, replacement or alteration is being made or
when any demolition or rebuilding is taking place, Lessee has maintained or
caused to be maintained, in addition to the insurance required to be maintained
under paragraph 13, such contingent liability, public liability, completed
value builder's risk, workmen's compensation and other similar insurance as is
customarily maintained, or caused to be maintained by Lessee with respect to
similar activities on properties owned by it.
(b) All machinery, equipment and trade fixtures constituting personal
property and which are installed by Lessee or by a subtenant of Lessee, the
cost of which shall not have been paid by Lessor, regardless of how attached or
affixed to the Property, shall be deemed to remain personal property and,
together with all other goods and personal property of Lessee or of a
subtenant, however attached or affixed, may be removed prior to the termination
of this Lease, but Lessee shall pay the entire cost and expense of any such
removal and shall immediately repair at its cost and expense all damage to the
Property caused thereby. Lessee may, at its cost and expense, install or place
or reinstall or replace upon and remove from the Property any trade fixtures,
machinery and equipment, and other personal property used
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or useful in Lessee's business, in conformity with the requirements of
paragraph 11(a). Any such trade fixtures, machinery and equipment, and other
personal property shall not become the property of Lessor (other than
replacements of trade fixtures, machinery and equipment, and other personal
property which are the property of Lessor, which replacements shall also be the
property of Lessor).
(c) From time to time, in addition to any rights granted to Lessee by
paragraph 11(a), Lessee may request Lessor to pay the costs and expenses
incurred by Lessee in the construction of buildings, structures or other
improvements made to or erected on the Property and, if Lessee shall so elect,
on one or more of the Other Properties within the 24-month period next
preceding the date of such request, and not required to be made or erected
under any provision of this Lease or the respective lease or leases of any such
Other Properties. Such request shall specify the one or more properties with
respect to which such request is being made and shall set forth in reasonable
detail the aggregate amount of such costs and expenses (which aggregate amount
shall be not less than $100,000) and in reasonable detail the amount of such
costs and expenses allocable to each such property. Upon receipt of any such
request, Lessor agrees to make every reasonable effort to arrange for the
financing of such improvements at the lowest interest rate then practically
obtainable for such financing. Lessor and Lessee shall negotiate in good faith
concerning the financing by Lessor of such costs and expenses and the amendment
of this Lease and such other lease or leases. Since Lessor's likely source of
funds to finance such costs and expenses will be the sale of its evidences of
indebtedness to the Mortgagee and the simultaneous sale by Mortgage of
Improvement Notes (as defined in Section 2.03 of the Indenture), the parties
hereto recognize that such amendment or amendments to this Lease and such other
lease or leases must provide (i) for increases in the Basic Rent and in the
purchase prices payable by Lessee upon the termination thereof, so as to assure
to the purchasers of such evidences of indebtedness the repayment of all
principal, interest and premium, if any, due thereon, and (ii) that such
evidences of indebtedness must be issued within six months after completion of
construction of such improvements. If Lessor shall be unable to arrange such
financing or if, after negotiating in good faith, Lessor and Lessee shall be
unable to agree upon the terms thereof, then this Lease shall continue in full
force and effect, and Lessor shall have no obligation to pay such costs and
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expenses unless Lessee shall arrange for such financing and such financing
shall be consummated; provided, that if, at any time during the last 15 years of
the Basic Term, Lessee shall make any such request with respect to the Property,
and if Lessor shall be unable to arrange such financing or if, after
negotiating in good faith, Lessor and Lessee shall be unable to agree upon the
terms thereof, then Lessee may, at its option, give notice to Lessor of
Lessee's intention to purchase the Property on the Payment Date first occurring
at least 30 days after such notice is given at a purchase price therefor equal
to the greater of (x) the then Fair Market Value of the Property or (y) the
purchase price for the Property determined in accordance with Part IV of
Schedule B. On such purchase date, Lessor shall transfer, and Lessee shall
purchase, the Property in accordance with paragraph 16. There shall be deducted
from the Fair Market Value of the Property the Fair Market Value at the time of
such purchase of all additions or improvements made by Lessee to the Property
which are not in substitution for other improvements owned by Lessor, and the
cost of which has not been paid by Lessor.
12. Condemnation and Casualty:
(a) Lessee hereby assigns to Lessor (except to the extent that loss
proceeds under certain insurance policies are made payable to Lessee pursuant
to paragraph 13(c)) any award, compensation or other payment to which Lessee may
become entitled, whether the same shall be payable in respect of Lessee's
leasehold interest hereunder or otherwise, (i) if the Property or any portion
thereof is damaged or destroyed due to fire or other casualty or cause, or (ii)
by reason of any condemnation, confiscation, requisition or other taking or
sale of the possession, use, occupancy or title to the Property or any portion
thereof in, by or on account of any completed, pending or threatened eminent
domain proceedings or other action by any governmental authority or other
person having the power of eminent domain. Lessee is hereby authorized and
empowered, at its cost and expense, in the name and behalf of Lessor, Lessee or
otherwise, to appear in any such proceedings or other action, to negotiate,
accept, file and prosecute any claim for any award, compensation or other
payment on account of any such loss, damage, destruction, condemnation,
confiscation, requisition or other taking or sale, and to collect and receipt
for any such award,
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compensation or other payment. All amounts so paid or payable to or received or
receivable by Lessor or Lessee shall be retained by such party or paid over to
the other party in accordance with the provisions of this paragraph 12. Lessee
shall take such action in connection with each such claim, proceedings or other
action as shall be appropriate to protect the interests of Lessor and Lessee.
Lessee shall pay all fees, costs and other expenses which may become payable as
a result of or in connection with the subject matter of this paragraph 12.
(b) If, after any occurrence of the character referred to in clause (i) or
(ii) of paragraph 12(a), the Property has been thereby rendered no longer
economically useful in the business of Lessee, Lessee, after the lapse of such
period of time as may be reasonably necessary for Lessee to evaluate the effect
of such occurrence, shall promptly give notice to Lessor of Lessee's intention
to terminate this Lease. Such notice shall (i) specify such termination date,
which shall be the Payment Date first occurring at least 60 days after such
notice is given, (ii) contain a certification by Lessee that the board of
directors of Lessee has made a determination that the Property has been
rendered no longer economically useful in the business of Lessee by an
occurrence of the character referred to in clause (i) or (ii) of paragraph
12(a), and that, on or before such termination date, Lessee will discontinue
the use of the Property in Lessee's business, (iii) contain a brief description
of such occurrence and of the basis for such determination by Lessee, and (iv)
contain the irrevocable offer of Lessee to purchase the Property (and/or the
Net Award hereinafter referred to) on such termination date at a purchase price
therefor equal to the then Unamortized Cost of the Property as determined in
accordance with Part III of Schedule B. If the sum of the Net Award hereinafter
referred to plus the then Fair Market Value of the portion of the Property, if
any, remaining after such occurrence (less the then Fair Market Value of all
additions or improvements made by Lessee to the Property which were not in
substitution for other improvements owned by Lessor and the cost of which was
not paid by Lessor), exceeds the then Unamortized Cost of the Property (such
excess of the sum of such Net Award plus such Fair Market Value over such
Unamortized Cost being herein called the "Excess"), then the purchase price
for the property referred to in the preceding sentence shall be increased by an
amount (not exceeding the amount of the Excess) equal to the sum of (x) the
lesser of (1) the Lessor's Original Equity or (2)
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the Excess, plus (y) an amount equal to the product of the then Lessor's
Percentage times the excess, if any, of the Excess over the Lessor's Original
Equity (such excess of the Excess over the Lessor's Original Equity being
herein called the "Remaining Excess"). If Lessor shall reject such offer by
notice given to Lessee not later than 30 days prior to such termination date,
then this Lease shall terminate on such termination date and a portion of the
Net Award hereinafter referred to, equal to the product of the then Lessee's
Percentage times the Remaining Excess, if any, shall be paid and belong to
Lessee, and the remainder of the Net Award shall be paid and belong to Lessor.
Unless Lessor shall have rejected such offer as provided in the preceding
sentence, Lessor shall be conclusively presumed to have accepted such offer
and, on such termination date, Lessor shall transfer, and Lessee shall
purchase, the Property (and/or the Net Award hereinafter referred to) in
accordance with paragraph 16. Upon completion of such purchase the entire
award, compensation or other payment, if any, on account of any such occurrence
less any expenses incurred by Lessor in collecting such award, compensation or
other payment and not paid (or reimbursed to Lessor) by Lessee pursuant to the
last sentence of paragraph 12(a), shall be paid and belong to Lessee (such
award, compensation or other payment, less such expenses, being herein called
the "Net Award").
(c) If, after any occurrence of the character referred to in paragraph
12(a), Lessee is not required to give notice of its intention to terminate this
Lease, then (i) this Lease shall continue in full effect, (ii) Lessee shall,
promptly after any such occurrence and at its cost and expense, repair and
rebuild the Property, in conformity with the requirements of paragraph 11(a),
to at least the extent necessary and practicable to restore the Property to the
condition and market value thereof immediately prior to such occurrence, and
(iii) upon the completion of such repair and rebuilding and if no event of
default shall then exist under this Lease, the entire Net Award shall be paid
and belong to Lessee.
13. Insurance:
(a) Lessee will, at all times during the term hereof and at its cost and
expense, maintain insurance of the following character:
(i) Insurance against loss by fire and lightning and insurance
against risks customarily covered by standard extended coverage
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endorsement, including but not limited to loss by windstorm, hail,
explosion, riot (including riot attending a strike), civil commotion,
aircraft, vehicles, smoke damage, and vandalism and malicious mischief in
amounts sufficient to prevent Lessor or Lessee from becoming a co-insuror
of any loss under the applicable policies, but in any event in amounts not
less than the full insurable value of all buildings and other improvements
constituting part of the Property. The term "full insurable value" as
used herein means actual replacement cost, including the costs of debris
removal, less physical depreciation.
(ii) General public liability insurance covering the legal liability
of Lessor and Lessee against claims for bodily injury, death or property
damage, occurring on, in or about the Property and the adjoining land, in
the minimum amounts of $1,000,000 for each claim with respect to any one
death or bodily injury, $1,000,000 with respect to any one occurrence, and
$50,000 for all claims for property damage with respect to any one
occurrence.
(iii) Workmen's compensation insurance. Lessee shall comply with
applicable workmen's compensation laws of the state in which the Property
is located, and shall maintain such insurance if and to the extent
necessary for such compliance.
(iv) Such other insurance, in such amounts and against such risks, as
is customarily maintained by Lessee with respect to similar properties
owned by it.
Such insurance shall be written by companies of recognized financial standing
which are well rated by national rating organizations and are legally qualified
to issue such insurance, and shall name as the insured parties Lessor and
Lessee as their interests may appear. Such insurance may provide for such
reasonable deductible amounts as are customarily provided for in insurance
maintained by Lessee with respect to similar properties owned by it, and may be
obtained by Lessee by endorsement on its blanket insurance policies, provided
that such policies satisfy the requirements specified above in this paragraph
13(a). Lessor shall not be required to prosecute any claim against any insurer
or to contest any settlement proposed by any insurer, provided that Lessee may,
at its cost and expense, prosecute
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any such claim or contest any such settlement, and in such event Lessee may
bring any such prosecution or contest in the name of Lessor, Lessee or both,
and Lessor will join therein at Lessee's request upon receipt by Lessor of an
indemnity from Lessee against all cost, liabilities and expenses in connection
with such prosecution or contest.
(b) Insurance claims by reason of damage or destruction to any portion of
the Property shall be adjusted by Lessee.
(c) Every insurance policy (other than any liability or workmen's
compensation policy) maintained pursuant to paragraph 11(a) or this paragraph 13
shall bear a first mortgage endorsement in favor of the Mortgagee, and loss
proceeds under any such policy in excess of $100,000 with respect to any loss
shall be made payable to such mortgagee or its assignee, if any, provided that
recoveries under any such policy shall be applied by such mortgagee or assignee
as provided in paragraph 12. Loss proceeds under any such policy of $100,000 or
less with respect to any loss shall be made payable to Lessee if no event of
default shall then exist under this Lease. Every such policy shall provide that
the issuer thereof waives all rights of subrogation against Lessor, any
successor to Lessor's interest in the Property, and any such mortgagee or
assignee, that 10 days' prior written notice of cancellation shall be given to
any such mortgagee or assignee and that such insurance, as to the interest of
any such mortgagee or assignee therein, shall not be invalidated by any act or
neglect of Lessor or Lessee or any owner of the Property or of any interest
therein, nor by any foreclosure or any other proceedings or notices thereof
relating to the Property or any interest therein, nor any change in the title
or ownership of the Property or any interest therein, nor by occupation of the
Property for purposes more hazardous than are permitted by such policy. No such
policy shall contain a provision relieving the issuer thereof of liability for
any loss by reason of the existence of other policies of insurance covering the
Property against the peril involved.
(d) Lessee shall deliver to Lessor promptly after the execution and
delivery of this Lease original or duplicate policies, or certificates of
insurers satisfactory to such mortgagee or assignee, if any, evidencing all the
insurance which is then required to be maintained by Lessee, and Lessee shall,
within 30 days prior to the expiration of any such
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insurance, deliver other original or duplicate policies or certificates of the
insurers evidencing the renewal of such insurance.
(e) Lessee shall not obtain or carry separate insurance concurrent in form
or contributing in the event of loss with that required in this paragraph 13 to
be furnished by Lessee unless Lessor is included therein as a named insured,
with loss payable as in this Lease provided. Lessee shall immediately notify
Lessor whenever any such separate insurance is obtained and shall deliver to
Lessor the policy or policies or certificates evidencing the same.
14. Termination for Uneconomic Use:
If, at any time on or after February 25, 1982, the Property is no longer
useful to Lessee, Lessee may give notice to Lessor of Lessee's intention to
terminate this Lease. Such notice shall (a) specify such termination date, which
shall be the Payment Date first occurring at least 60 days after such notice is
given, (b) contain a certification by Lessee that the board of directors of
Lessee has made a determination that the Property is no longer useful to Lessee
and that Lessee will discontinue the use of the Property in Lessee's business on
or before such termination date, provided, that such certification shall include
a statement to the effect that, in making its determination that the Property is
no longer useful to Lessee, the board of directors of Lessee gave no
consideration to the amount of the Basic Rent or to interest rates or effective
interest costs to Lessee with a view to refinancing the Property or financing a
comparable facility, and (c) contain the irrevocable offer of Lessee to purchase
the Property on such termination date at a purchase price therefor determined in
accordance with Part V of Schedule B. If Lessor shall reject such offer by
notice given to Lessee not later than 30 days prior to such termination date,
then this Lease shall terminate on such termination date. Unless Lessor shall
have rejected such offer as provided in the preceding sentence, Lessor shall be
conclusively presumed to have accepted such offer and, on such termination date
Lessor shall transfer, and Lessee shall purchase, the Property in accordance
with paragraph 16.
15. Purchase Option; Right of First Refusal:
(a) Lessee shall have the right to purchase the Property on the last day
of the Basic Term or on the last day of any Extended Term at a purchase price
therefor equal to the then Fair Market Value of
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the Property. There shall be deducted from the Fair Market Value of the
Property the Fair Market Value at the time of such purchase of all additions or
improvements made by Lessee to the Property which are not in substitution for
other improvements owned by Lessor and the cost of which has not been paid by
Lessor, Lessee shall exercise its option to purchase the Property by notice to
Lessor, given not less than ninety days prior to the expiration of the term of
this Lease then in effect. If Lessee shall have exercised such option, then on
such expiration date Lessor shall transfer, and Lessee shall purchase, the
Property in accordance with paragraph 16.
(b) If at any time during the term of this Lease Lessor shall receive and
wish to accept a bona fide offer from a third party to purchase Lessor's
interest in the Property, other than a bid or offer to purchase such interest
at any sale incidental to the exercise of any remedy provided for in this Lease
or the Mortgage, or if Lessor shall offer to sell its interest in the Property
to any third party, Lessor shall promptly transmit to Lessee its irrevocable
offer to sell such interest to Lessee upon the same terms and conditions as are
set forth in such offer to purchase or offer to sell, as the case may be,
together with a true and complete copy of such offer. Lessee shall exercise its
option to accept Lessor's offer by notice to Lessor, given not more than sixty
days after receipt thereof by Lessee. If Lessee shall have accepted such offer,
then Lessor shall transfer, and Lessee shall purchase, the Property in
accordance with paragraph 16, but subject to this Lease and any assignment of
Lessor's rights hereunder and to the Mortgage, and this Lease shall continue in
full force and effect.
16. Purchase by Lessee:
(a) In the event of the purchase of the Property (and/or the Net Award) by
Lessee pursuant to any provision of this Lease, Lessor shall give the same
title thereto as existed at the commencement of the term of this Lease, subject
to all liens, encumbrances, charges, exceptions and restrictions attaching
thereto after the commencement of the term of this Lease which were not created
or caused by Lessor or the Trustees, to any action taken by Lessee pursuant to
pargraph 27, and to all applicable laws, rules, regulations, ordinances and
restrictions then in effect, and Lessee shall accept such title. The quality
and condition of Lessor's title shall be evidenced by a commitment to insure
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the same issued (at the expense of Lessee) by a title insurance company of
recognized financial responsibility.
(b) On the date fixed for the purchase of the Property (and/or the Net
Award) by Lessee pursuant to any provision of this Lease, Lessee shall pay to
Lessor, in lawful money of the United States, at its address for purposes of
this Lease or at any other place in the United States designated by Lessor, the
purchase price therefor provided for herein, and Lessor shall there deliver to
Lessee an appropriate deed and/or other instrument or instruments of transfer,
with covenants against acts of Lessor, which shall transfer the title described
in paragraph 16(a). Lessee shall also pay all charges incident to such
transfer, including all recording fees, attorneys' fees and expenses, title
insurance premiums and federal, state and local taxes (other than Lessor's
income taxes). Upon completion of any such purchase other than a purchase
pursuant to paragraph 15(b), but not prior thereto (regardless of the reason
for any delay which may occur in consummating such purchase and whether or not
such delay is due to the fault of Lessor or the inability to transfer the title
described in paragraph 16(a)), this Lease shall terminate.
17. Termination:
(a) In the event of the termination of this Lease as herein provided,
whether upon a purchase of the Property by Lessee or otherwise, the obligations
and liabilities of Lessee, actual or contingent, under this Lease which arose
prior to such termination shall survive such termination.
(b) If any termination of this Lease shall occur on a Payment Date (i)
Basic Rent due and payable on such Payment Date shall remain due and payable on
such Payment Date without reduction or abatement, and (ii) all amounts payable
by Lessee in connection with any purchase of the Property or any portion
thereof on such Payment Date shall be in addition to the amount then due and
payable as Basic Rent.
18. Subletting; Assignment:
(a) Lessee may sublet the Property or any part thereof, provided that each
sublease shall expressly be made subject to the provisions of this Lease, and
may assign its interest under this Lease. No such
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sublease or assignment shall affect or reduce any obligations of Lessee or
rights of Lessor hereunder, and all obligations of Lessee hereunder shall
continue in full effect as the obligations of a principal and not of a
guarantor or surety, as thought no subletting or assignment had been made.
Neither this Lease nor the term hereby demised shall be mortgaged by Lessee,
nor shall Lessee mortgage or pledge the interest of Lessee in and to any
sublease of the Property or any portion thereof or the rentals payable
thereunder. Any such mortgage or pledge, and any such sublease or assignment
made otherwise then as permitted by this paragraph 18, shall be void. Lessee
shall, within 10 days after the execution of any such sublease or assignment,
deliver a conformed copy thereof to Lessor, and to any mortgage of the Property
or its assignee.
(b) Lessor may mortgage, assign, convey or otherwise transfer its estate,
right, title and interest hereunder or in the Property or any portion thereof
without the consent of Lessee. If any such assignment is made as collateral
security, the execution and deliver thereof shall not in any way impair or
diminish any obligations of Lessor under this Lease nor impose any of such
obligations on the assignee. Any estate, right, title or interest assigned as
permitted by this paragraph 18(b) may be assigned and reassigned in like manner
by any assignee thereof.
19. Advances by Lessor; Permitted Contests:
(a) If Lessee shall fail to make or perform any payment or act on its part
to be made or performed under this Lease, then, subject to the provisions of
paragraph 19(b), Lessor may (but need not), after 3 days' prior notice to Lessee
(but no notice shall be necessary if such failure by Lessee might result in
civil or criminal penalties being imposed on Lessor, the Property not being
insured as provided in this Lease or Lessor's title to the Property being lost
in legal proceedings or otherwise) and without waiving any default or releasing
Lessee from any obligation, make such payment or perform such act for the
account and at the cost and expense of Lessee. All amounts so paid by Lessor
and all necessary and incidental costs and expenses (including attorneys' fees
and expenses) incurred in connection with the performance of any such act by
Lessor, together with interest at the rate of 8-1/2% per annum (or at the
highest rate not prohibited by applicable law, whichever is less) from the date
of the making of such payment
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or of the incurring of such costs and expenses by Lessor, shall be payable by
Lessee to Lessor on demand.
(b) Lessee shall not be required, nor shall Lessor have the right, to pay,
discharge or remove, any tax, charge, levy, assessment or lien, or any other
imposition or encumbrance on or against the Property or any portion thereof, so
long as Lessee shall, at its cost and expense, contest the existence, amount or
validity thereof by appropriate proceedings which shall operate to prevent the
collection of or other realization upon the tax, charge, levy, assessment or
lien, or other imposition or encumbrance so contested, and the sale, forfeiture
or loss of the Property or any portion thereof, or of the Basic Rent or any
Additional Rent or portion thereof, to satisfy the same, and which shall not
affect the payment in full of any Basic Rent payable hereunder or any use or
disposition thereof by Lessor; provided, however, that Lessee shall have given
such security as may be required in the proceedings and such reasonable
security as may be demanded by Lessor to insure such payment and to prevent any
sale or forfeiture of the Property or any portion thereof by reason of such
nonpayment; and, provided further, that Lessor would not be in any danger of
criminal liability by reason of such nonpayment.
20. Conditional Limitations -- events of Default and Remedies:
(a) Any of the following occurrences or acts shall constitute an "event
of default" under this Lease;
(i) if Lessee shall
(A) default in making payment when due of any Basic Rent,
Additional Rent or any other amount payable by Lessee hereunder, or
(B) default in the observance or performance of any provision of
any instrument pursuant to which Lessee undertakes obligations, or
makes agreements, for the benefit of Lessor or any assignee of
Lessor's rights as lessor under this Lease, or
(C) default in the observance or performance of any other
provision of this Lease to be observed or performed by Lessee
hereunder,
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and if such default shall continue as to subclause (A) or (B) above for 1
business day after Lessee shall have received notice from Lessor specifying
such default and demanding that the same be cured, or as to subclause (C) above
for 30 days after Lessor shall have given to Lessee notice specifying such
default and demanding that the same be cured (or, if by reason of the nature
thereof, such default cannot be cured by the payment of money and cannot with
due diligence be wholly cured within such period of 30 days, if Lessee shall
fail to proceed promptly to cure the same and thereafter prosecute the curing
of such default with all due diligence, it being intended in connection with a
default not susceptible of being wholly cured with due diligence within such
period that the time within which to cure the same shall be extended for such
period as may be necessary to complete the curing of the same with all due
diligence); or
(ii) if the Property shall remain substantially unoccupied and
unattended for a period of 90 consecutive days and during such period
Lessee shall not have delivered to Lessor a certificate of Lessee to the
effect that Lessee has been prevented from occupying the Property by
circumstances beyond its control, that the Property is being maintained in
accordance with the provisions of this Lease and that Lessee intends to
reoccupy the Property upon termination of such circumstances; or
(iii) if the Lessee hereinabove named, or any corporation succeeding
thereto by merger, consolidation or acquisition of all or substantially all
of its assets, shall file a petition in bankruptcy or for reorganization or
for an arrangement pursuant to the Bankruptcy Act or under any similar
federal or state law now or hereafter in effect, or shall be adjudicated a
bankrupt or become insolvent, or shall make an assignment for the benefit
of its creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or shall be dissolved, or shall suspend
payment of its obligations, or shall take any corporate action in
furtherance of any of the foregoing; or
(iv) if a petition or answer shall be filed proposing the
adjudication of the Lessee hereinabove named, or any corporation succeeding
thereto by merger, consolidation or acquisition of all or substantially all
of its assets, as a bankrupt or its reorganization pursuant to the
Bankruptcy Act or any similar federal or state law,
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now or hereafter in effect, and (A) such Lessee or successor corporation shall
consent to the filing thereof, of (B) such petition or answer shall not be
discharged or denied within 60 days after the filing thereof; or
(v) if a receiver, trustee or liquidator (or other similar official) shall
be appointed for or take possession or charge of the Lessee hereinabove named,
or any corporation succeeding thereto by merger, consolidation or acquisition
of all or substantially all of its assets, or of all or substantially all of
the business or assets of such Lessee or successor corporation or of such
Lessee's or successor corporation's estate or interest in the Property, and
shall not be discharged within 60 days thereafter or if such Lessee or
successor corporation shall consent to or acquiesce in such appointment; or
(vi) if the estate or interest of Lessee in the Property or any sublease
thereof shall be levied upon or attached in any proceeding and such process
shall not be vacated or discharged within 60 days after such levy or
attachment, unless Lessee shall be contesting such levy or attachment in
accordance with the requirements of paragraph 19(b); or
(vii) if the Lessee hereinabove named, or any corporation succeeding
thereto by merger, consolidation or acquisition of all or substantially all of
its assets, shall default in the payment of principal, premium or interest on
any note, bond, debenture or other evidence of indebtedness upon which such
Lessee or successor corporation may be or become liable beyond any period of
grace provided with respect thereto, or shall fail to comply with any provision
of any such evidence of indebtedness or any instrument under which or pursuant
to which any such evidence of indebtedness may be issued, if the effect of such
failure is to cause, or permit the holder or holders thereof (or a trustee or
agent, on behalf of such holder or holders) to cause, not less than $1,000,000
in aggregate principal amount of such evidence or evidences of indebtedness to
become due prior to the stated maturity thereof, or if such Lessee or successor
corporation shall fail to pay any rent under any lease of any property, real or
personal, having an original cost to the lessor thereunder of not less than
$1,000,000, if the effect of such failure is to cause, or permit the lessor
thereunder
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(or a trustee or agent on behalf of such lessor) to cause, such lease or
the term thereof to be terminated prior to the date fixed for the expiration
thereof.
(b) This Lease and the term and estate hereby granted are subject to the
limitation that whenever an event of default shall have occurred, Lessor may, as
its election, during the continuance of such event of default:
(i) proceed by appropriate judicial proceedings, either at law or in
equity, to enforce performance or observance by Lessee of the applicable
provisions of this Lease or to recover damages for the breach thereof; or
(ii) by notice to Lessee terminate the term of this Lease, whereupon
Lessee's estate and all right of Lessee to the use of the Property shall
forthwith terminate as though this Lease had never been made, but Lessee
shall remain liable as hereinafter provided; and thereupon Lessor shall
have the immediate right of re-entry and possession of the Property and
the right to remove all persons and property therefrom; and Lessor may
thenceforth hold, possess and enjoy the Property (including the right to
sell the Property or any portion thereof upon any terms deemed satisfactory
to Lessor) free from any rights of Lessee and any person claiming through
or under Lessee; but Lessor shall, nevertheless, have the right to recover
forthwith from Lessee:
(A) any and all Basic Rent and Additional Rent and all other
amounts payable by Lessee hereunder which may then be due and unpaid
or which may then be accrued and unpaid,
(B) as liquidated damaged for loss of the bargain and not a
penalty, an amount equal to the excess of the aggregate of all unpaid
Basic Rent and Additional Rent which would have been payable if this
Lease had not been terminated prior to the end of the term of this
Lease then in effect over the aggregate fair rental value of the
Property at the date of termination of this Lease for the period from
such termination date to the end of the term of this Lease then in
effect, both
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discounted in accordance with accepted financial practice at the rate
of 5% per annum to then present worth, and*
(C) any and all other damages and expenses (including, without
limitation, attorneys' fees and expenses), which Lessor shall have
sustained by reason of the breach of any provision of this Lease; or
(iii) declare all Basic Rent for the balance of the term of this Lease
then in effect, discounted in accordance with accepted financial practice
at the rate of 5% per annum to then present worth, to be immediately due
and payable, as though expressly made payable in advance prior to the
occurrence of such event of default, in which case Basic Rent so becoming
due and payable in advance may be recovered in any suit, action or other
legal proceeding, provided, that if Lessor shall exercise such remedy and
Lessee shall have paid in full all Basic Rent so declared due and payable,
Lessee shall thereafter have the right to possession of the Property for
the entire period in respect of which Basic Rent shall have been so
accelerated by Lessor, unless and until a further event of default (other
than an event of default of the character specified in clause (iii), (iv),
(v) or (vii) of paragraph 20(a)) shall occur.
Lessee hereby waives to the full extent not prohibited by law, any right it may
now or hereafter have to require the sale, in mitigation of damages, of the
Property or any portion thereof.
-------------
* If the Property is located in the State of California, subparagraph (B)
above is replaced by the following paragraph:
"(B) As liquidated damages for loss of the bargain and not as a
penalty, (1) an amount equal to the excess of the aggregate of all unpaid
Basic Rent and Additional Rent which would have become due after
termination until the time of award over the amount of rental loss that
Lessee proves could have been reasonably avoided, plus (2) an amount equal
to the excess of the aggregate of all unpaid Basic Rent and Additional Rent
which would have become due after the time of award until the end of the
stated term hereof over the amount of rental loss that Lessee proves could
have been reasonably avoided both discounted in accordance with accepted
financial practice at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus 1%, and"
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(c) Nothing herein contained shall limit or prejudice the right of Lessor,
in any legal, administrative or other proceedings, to prove for and obtain as
liquidated damages by reason of the termination of the term of this Lease
pursuant to paragraph 20(b)(ii), an amount equal to the maximum allowed by such
proceedings, or by any statute, regulation or rule governing the proceedings in
which such damages are to be proved, whether or not such amount shall be greater
or less than the amount referred to in paragraph 20(b)(ii)(B).
(d) Unless the term of this Lease shall have terminated as in paragraph
20(b)(ii) provided or as permitted by law, if Lessor shall obtain possession of
the Property or any portion thereof following an event of default hereunder,
Lessor shall have the right, without notice, to repair or alter the Property or
any portion thereof in such manner as to Lessor may seem appropriate to put the
same in good order and to make the same rentable, and shall have the right, at
Lessor's option, to re-let the Property or any portion thereof, and Lessee
agrees to pay to Lessor on demand all fees, costs and expenses incurred by
Lessor in obtaining possession, and in altering, repairing and putting the
Property or any portion thereof in good order and condition, and in reletting
the Property or any portion thereof, including reasonable fees and expenses of
attorneys, engineers, mechanics, and other skilled persons, and other
reasonable expenses and commissions, and to pay to Lessor upon the Payment
Dates occurring thereafter until the end of the term of this Lease then in
effect the amounts of money herein specified to be payable by Lessee as Basic
Rent hereunder upon such Payment Dates and all amounts then payable as
Additional Rent hereunder (for all of which amounts Lessee agrees to remain
liable, to the extent provided in this paragraph 20(d), even though Lessor
obtains possession of the Property or any portion thereof as permitted by this
Lease), deducting any rent which Lessor shall actually receive in the meantime
from any reletting of the Property or any portion thereof, and Lessor shall
have the right from time to time to begin and maintain successive legal
proceedings against Lessee for the recovery of any such deficiency or damages,
and to recover the same upon the liability of Lessee herein provided, which
liability it is expressly agreed shall survive the institution of any action to
secure possession of the Property or any portion thereof. Nothing herein
contained shall require Lessor to wait to begin such legal proceedings until
the end of the stated term of this Lease. No such taking of pos-
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session of the Property or any portion thereof by Lessor shall be construed as
an election on Lessor's part to terminate the term of this Lease unless notice
of such intention be given to Lessee or unless such termination be decreed by a
court of competent jurisdiction.
(e) To the full extent not prohibited by law, Lessee hereby waives and
releases all rights now or hereafter conferred by statute or otherwise which
would have the effect of limiting or modifying any of the provisions of this
paragraph 20. Lessee will execute, acknowledge and deliver any instruments
which Lessor may request, whether before or after the occurrence of an event of
default hereunder, evidencing such waiver or release. At the request of Lessor
upon the occurrence of an event of default hereunder, Lessee will quit and
surrender the Property to Lessor or its agents, and Lessor may without further
notice enter upon, re-enter and repossess the Property by summary proceedings,
ejectment or otherwise. The words "enter", "re-enter", and "re-entry" are not
restricted to their technical legal meaning.
(f) If Lessee shall be in default in the observance or performance of any
provision of this Lease, and an action shall be brought for the enforcement
thereof in which it shall be determined that Lessee was in default, Lessee
shall pay to Lessor all fees, costs and other expenses which may become payable
as a result thereof or in connection therewith, including attorney's fees and
expenses. If Lessor shall without fault on its part be made a party to any
litigation commenced against Lessee, and if Lessee shall not provide Lessor
with counsel satisfactory to Lessor, Lessee shall pay all costs and attorneys'
fees incurred or paid by Lessor in connection with such litigation.
(g) No right or remedy herein conferred upon or reserved to Lessor is
intended to be exclusive of any other right or remedy, and every right and
remedy shall be cumulative and in addition to any other legal or equitable
right or remedy given hereunder, or now or hereafter existing. The failure of
Lessor to insist upon the strict performance of any provision or to exercise
any option, right, power or remedy contained in this Lease shall not be
construed as a waiver or a relinquishment thereof for the future. Receipt by
Lessor of any Basic Rent or Additional Rent payable hereunder with knowledge of
the breach of any provision contained in this Lease shall not constitute a
waiver of such breach (other than the prior failure to pay such Basic Rent or
Addi-
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tional Rent), and no waiver by Lessor of any provision of this Lease shall be
deemed to have been made unless made under signature of an authorized
representative of Lessor. Lessor shall be entitled, to the extent permitted by
law, to injunctive relief in case of the violation, or attempted or threatened
violation, of any provision of this Lease, or to a decree compelling observance
or performance of any provision of this Lease, or to any other legal or
equitable remedy.
21. Notices:
All notices and other instruments or communications given or made pursuant
to this Lease shall be in writing and shall be validly given if sent by prepaid
United States registered or certified mail, return receipt requested, addressed
to the person entitled to receive the same. Lessor and Lessee, and any other
person to whom any such writing is to be given hereunder, shall each have the
right to specify, from time to time, as its address for purposes of this Lease,
any address in the United States upon giving 15 days' written notice thereof to
each other person then entitled to receive notices and other instruments or
communications hereunder. The addresses of Lessor and Lessee for purposes of
this Lease, until notice has been given as above provided, shall be as follows:
Lessor: BF Properties Company
c/x Xxxxxx Xxxxxxx Realty Corporation
00 Xxxxxxxx Xxxxx
Xxx Xxxx, X.X. 00000
Xxxxxx: Xxxxxxxx Foods Co.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Law Department
Each such writing given by Lessee pursuant to this Lease shall be signed by an
officer or employee of Lessee authorized by its board of directors to sign such
a writing in the name and on behalf of Lessee.
22. Estoppel Certificates:
Lessee will, from time to time upon not less than 10 days' prior request
by Lessor, execute, acknowledge and deliver to Lessor a statement of Lessee,
signed by one of its Vice Presidents and currently
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dated, certifying, if such is the fact, that this Lease is unmodified and in
full effect (or, if there have been modifications, that this Lease is in full
effect as modified, and setting forth such modifications) and the dates to
which the Basic Rent and Additional Rent and other amounts payable by Lessee
hereunder have been paid, and either stating that to the knowledge of the
signer of such certificate no default exists in the observance or performance
of any provision contained in this Lease and no event of default hereunder has
occurred and is continuing, or specifying each such default or event of default
of which the signer may have knowledge, it being intended that any such
statement delivered pursuant to this paragraph may be relied upon by any
mortgage or by any prospective purchaser of the Property or any assignee of
such mortgagee.
23. No Merger:
There shall be no merger of this Lease or of the leasehold estate hereby
created with the fee estate in the Property or any portion thereof by reason of
the fact that the same person may acquire or hold, directly or indirectly, all
or part of such fee estate and this Lease or the leasehold estate hereby created
or any interest in this Lease, and this Lease shall not be terminated for any
cause except as expressly provided herein.
24. Surrender:
(a) Upon the expiration or earlier termination of the term of this Lease,
Lessee shall surrender the Property to Lessor in the same condition in which
the Property was originally received from Lessor except as repaired, rebuilt,
restored, altered or added to pursuant to any provision of this Lease, and
except for ordinary wear and tear. Lessee shall remove from the Property on or
prior to such expiration or earlier termination all property situated thereon
which is not owned by Lessor, and at its cost and expense shall repair any
damage caused by such removal. Property not so removed shall become the
property of Lessor, which may thereafter cause such property to be removed from
the Property and disposed of, but the cost of any such removal and disposition
as well as the cost of repairing any damage caused by such removal shall be
borne by Lessee.
(b) Except for surrender upon the expiration of earlier termination of the
term hereof, no surrender to Lessor of this Lease or of the Property or any
portion thereof or of any interest therein shall be
31
29
valid or effective unless agreed to and accepted under signature of an
authorized representative of Lessor, and no act by Lessor or by any other
representative of Lessor, other than such an agreement and acceptance so
signed, shall constitute an acceptance by Lessor of any such surrender.
25. Separability:
Each provision contained in this Lease shall for all purposes be construed
to be separate and independent and the breach of any such provision by Lessor
shall not discharge or relieve Lessee from Lessee's obligation to observe and
perform each provision of this Lease to be observed or performed by Lessee. If
any provision of this Lease or the application thereof to any person or
circumstance shall to any extent be invalid and unenforceable, the remainder of
this Lease, or the application of such provision to persons or circumstances
other than those as to which it is invalid or unenforceable, shall not be
affected thereby, and each provision of this Lease shall be valid and shall be
enforceable to the extent permitted by law.
26. Binding Effect; Merger, Consolidation and Disposition of Assets:
All provisions contained in this Lease shall (subject to the provisions of
paragraph 18) be binding upon, inure to the benefit of and be enforceable by,
the respective successors and permitted assigns of Lessor and Lessee to the same
extent as if each such successor or assign were named as a party to this Lease.
If Lessee shall merge into another corporation, or consolidate with one or more
corporations in a consolidation in which Lessee shall not be the surviving
entity, or sell or otherwise dispose of all or substantially all its assets, the
surviving entity or transferee of assets, as the case may be, shall deliver to
Lessor an acknowledged instrument in recordable form assuming all obligations,
covenants and responsibilities of Lessee hereunder, and Lessee covenants that it
will not so merge or consolidate or sell or otherwise dispose of all or
substantially all its assets unless such instrument shall have been so
delivered. This Lease embodies the entire agreement between Lessor and Lessee
relating to the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter. Neither this Lease nor any
provision hereof may be amended, modified, waived, discharged or terminated
orally, but only as expressly provided herein or by an instrument signed by
Lessor and Lessee.
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30
27. Lessee Empowered to Grant or Release Easements:
Lessee may grant easements, licenses and rights-of-way (and other rights
and privileges in the nature thereof, or may release existing easements or
appurtenances for the benefit of the Property, to any person, with or without
consideration. If any consideration in excess of $5,000 is paid for any such
grant, such consideration in excess of $5,000 shall be paid to Lessor. If Lessee
shall have made any such payments, Lessee shall be entitled to recover the
aggregate amount of such payments by deducting such amount from the purchase
price paid by Lessee upon a purchase of the Property (except a purchase price
calculated pursuant to Part IX of Schedule B), provided that no such reduction
of the purchase price shall reduce the purchase price below the amount necessary
to make the payment of the balance of the indebtedness evidenced by the Owner's
Note, including principal, interest and premium, if any, payable thereon on the
day of purchase. Lessee is hereby empowered to take any such action without the
consent or joinder of Lessor or of the mortgagee, trustee or beneficiary under
any mortgage or deed of trust subordinate to this Lease (including, without
limitation, the Mortgage). Lessee hereby agrees that it will not take any such
action without the consent of Lessor and the Trustees under the Indenture which,
viewed either by itself or together with all other action taken by Lessee
pursuant to this paragraph 27, would either materially affect the marketability
of title to the Property or materially impair the fair market value of the
Property or the use thereof for the purposes for which it is held by Lessee.
28. Certain Definitions:
As used in this Lease the following terms have the meanings set forth
below:
Additional Rent: as defined in paragraph 5(b).
Applicable Premium: the applicable premium determined in accordance
with Schedule B hereto.
Basic Rent: as defined in paragraph 5(a).
Basic Term: as defined in paragraph 4(a).
Capitalized Cost: the capitalized cost of the Property set forth in
Schedule B hereto.
certificate: a certificate executed by the President or any Vice
President of Lessee.
33
31
event of default: as defined in paragraph 20(a).
Excess: as defined in paragraph 12(b).
Extended Term: as defined in paragraph 4(b).
Fair Market Value: the fair market value of the Property
determined in accordance with Schedule B hereto.
Indenture: the Collateral Trust Indenture dated as of February
15, 1972 between Mortgagee and Bankers Trust Company and X. Xxxx, as
Trustees, securing the Notes, as the same may be amended or
supplemented from time to time as permitted thereby.
Lessee: as defined on page 1.
Lessee's Percentage: the Lessee's percentage determined in
accordance with Schedule B hereto.
Lessor: as defined on page 1.
Lessor's Original Equity: Lessor's original equity in the
Property set forth in Schedule B hereto.
Lessor's Percentage: Lessor's percentage determined in accordance
with Schedule B hereto.
Mortgage: mortgage or deed of trust of the Property dated as of
February 15, 1972, made by Lessor to Mortgagee, as the same may be
amended or supplemented from time to time as permitted thereby.
Mortgagee: BF Properties Corporation, a Delaware corporation, as
beneficiary or mortgagee under the Mortgage, and any assignee of the
rights of BF Properties Corporation as such beneficiary or mortgagee.
Net Award: as defined in paragraph 12(b).
Note Purchase Agreement: the Note Purchase Agreement dated
February 15, 1972, between Lessor and each of the addressees listed in
Annex I thereto.
Notes; outstanding: all 7 1/2 Collateral Trust Notes due February
25, 2002 and all Improvement Notes from time to time issued by
Mortgagee under the Indenture; when used with respect to Notes, the
term "outstanding" shall have the meaning designated in the Indenture.
34
32
Other Properties: all parcels of land (in each case together with the
buildings and other improvements thereon and the easements, rights and
appurtenances thereto) which are under lease from Lessor, as lessor, to
Lessee, as lessee, and Mortgages of which are pledged by Mortgagee under
the Indenture.
Owner's Note: The note executed by Lessor and secured by the Mortgage.
Payment Dates: as defined in paragraph 5(a).
Permitted Liens: Encumbrances permitted under the Mortgage.
Property: as defined in paragraph 1.
Remaining Excess: as defined in paragraph 12(b).
Trustees: the Trustees under the Indenture.
Unamortized Cost: the unamortized cost of the Property determined in
accordance with Schedule B hereto.
29. Lessee's Remedies:
If (i) Lessee shall pay any moneys by reason of the provisions of
paragraph 6(d) of this Lease and such payment would not have been required but
for the fact that taxes, costs, expenses, indebtedness, obligations or
liabilities of any character were incurred by Lessor, or (ii) if Lessee's use
and quiet enjoyment of the Property shall be interfered with by Lessor or by
parties claiming by, through or under Lessor while Lessee is paying the Basic
Rent and other sums required to be paid by Lessee pursuant to this Lease (other
than sums described in clause (i) above) and is keeping and performing the
covenants and agreements herein required to be kept and performed by Lessee,
then and in such event but subject to the provisions of paragraph 6:
(A) Lessee shall have and may assert a claim against Lessor for the
aggregate of the amounts so paid or incurred by Lessee by reason of the
occurrences described above, provided that in exercising any remedy
available to Lessee, Lessee may exercise such remedy only if, and to the
extent that, and in such manner that, such exercise will not, directly or
indirectly, prevent payment to the holders of the Notes of any amounts due
or to become due on the Notes or payment to the Trustees of any amounts due
to them from
35
33
time to time for services, expenses and indemnification pursuant to the
Indenture, and Lessee covenants that it will not exercise any remedy so as
to, directly or indirectly, prevent any such payment to the holders of the
Notes or to the Trustee;
(B) If Lessee shall purchase the Property pursuant to the provisions
of this Lease, Lessee shall have the right to apply in payment of the
purchase price, to the extent thereof, the aggregate of the amounts so paid
or incurred by Lessee, together with interest on the amount of each such
payment at the rate of 8 1/2% per annum from the date of such payment to
the date of payment of the purchase price, provided that no such
application of amounts so paid or incurred by Lessee to payment of the
purchase price for the Property may be made unless, prior to such purchase
of the Property (or unless through application of an advance of a portion
of the purchase price payable by Lessee upon such purchase of the
Property), the Notes shall have been fully paid and the Indenture shall
have been satisfied and discharged;
(C) During any Extended Term, provided that the notes have been fully
paid and the Indenture has been satisfied and discharged, Lessee shall have
the right to apply, to the extent thereof, the aggregate of the amounts so
paid or incurred by Lessee, together with interest on the amount of each
such payment, at the rate of 8 1/2% per annum from the date of such payment
to the date of such application, in payment of any rents due during such
Extended Term.
Notwithstanding any other provision of this Lease, Lessee agrees that
Lessor shall incur no personal liability pursuant to this Lease, that Lessee
will look solely to the Property and the proceeds of the sale of the Property in
satisfaction of all obligations of lessor under this Lease, and that no other
property or assets of Lessor or of any partner of Lessor shall be subject to
levy, execution or enforcement procedure for the satisfaction of the claims of
Lessee, and while Lessee may bring or maintain suits, actions or other
proceedings against Lessor, no judgment or decree in the nature of a deficiency
judgment shall be asked for or take against Lessor or any partner of Lessor, and
any judgment or decree shall be satisfied from, and only from, the Property and
the proceeds of sale thereof, subject to the provisions of subparagraphs (A),
(B) and (C) above.
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34
30. Miscellaneous:
The table of contents preceding this Lease and the headings to the various
paragraphs of this Lease have been inserted for convenient reference only and
shall not modify, define, limit or expand the express provisions of this Lease.
IN WITNESS WHEREOF, Lessor and Lessee hereto have each caused this Lease
to be duly executed and delivered in their respective names and behalf, as of
the day and year first above written.
BF Properties Company
By XXXXXX XXXXXXX REALTY
CORPORATION
General Partner
By [ILLEGIBLE]
-------------------------------
President
Witnesses:
[ILLEGIBLE]
-------------------------------
[ILLEGIBLE]
-------------------------------
XXXXXXXX FOODS CO.
By [ILLEGIBLE]
-------------------------------
Vice President
[CORPORATE SEAL]
Attest:
[ILLEGIBLE]
-------------------------------
Secretary
Witnesses:
[ILLEGIBLE]
-------------------------------
-------------------------------
This instrument was prepared by D. Xxxxx X'Xxxxxx, attorney-at-law, whose
address is 000 Xxxxxxxx, Xxx Xxxx, X.X. 00000.
----------------------
37
35
SCHEDULE A
DESCRIPTION OF THE PROPERTY
(SEE FOLLOWING PAGES)
38
SCHEDULE A
Property Number 1 - Lincoln, Nebraska
Parcel 1:
Xxxx 0, 0, 0, 0, 0, 0 xxx 0, Xxxxxxx Xxxx Company's Subdivision of Xxx 0,
Xxxxx 00, Xxxxxxx; and all of Xxx 0, Xxxxx 00, Xxxxxxx.
Xxxxxx 2:
Xxxx 0, 0, 0, 0, 0, 0, 0 and 10, Block 84, Lincoln; Xxxx 0, 0, 0, 0, 0, 0
xxx 0, Xxxxxxx Xxxx Company's Subdivision of Xxxx 0 xxx 0, Xxxxx 00, Xxxxxxx;
The South 9 feet 3 inches of M Street lying North and adjacent to Xxx 0,
Xxxxxxx Xxxx Company's Subdivision of Xxxx 0 xxx 0, Xxxxx 00, Xxxxxxx; Xxxx
0, 0, xxx 0, Xxxxxxx Xxxx Company's Subdivision of Xxxx 00 xxx 00, Xxxxx 00,
Xxxxxxx; The West 55 feet of Xxxx 0, 0 xxx 0, Xxxxxxx Xxxx Company's
subdivision of Xxxx 00 xxx 00, Xxxxx 00, Xxxxxxx; and all that part of the West
55 feet of Xxx 0, Xxxxxxx Xxxx Company's Subdivision of Xxxx 00 xxx 00, Xxxxx
00, Xxxxxxx, lying Westerly of a line drawn 12 feet radically distant westerly
of the center line of the most westerly tracts of the Chicago Burlington &
Quincy Railroad Company (now Burlington Northern) crossing said Lot 7; and the
vacated North-South alley bounded on the West by Lots 1 through 7 Lincoln Land
Company's Subdivision of Lots 5 and 6, Block 84, and bounded on the East by Xxx
0, Xxxxx 00, Xxxxxxx, vacated by Ordinance No. 8252; and the vacated East-West
alley in Block 84, Lincoln vacated by Ordinance No. 4434;
Parcel 3:
Xxxx 0, 0, 0, 0, 0, 0 xxx 0, Xxxxxxx Xxxx Company's Subdivision of Xxxx 0
xxx 0, Xxxxx 000, Xxxxxxx; and that part of Xxx 0, Xxxxx 000 Xxxxxxx, described
as beginning at the Southwest corner of said Lot 3, thence East along the South
line thereof 50 feet, thence North along the East line thereof 142 feet, thence
West along the North line thereof 15.5 feet, thence Southwesterly in a straight
line to a point on the West line of said Xxx 0, 000 xxxx Xxxxx of the point of
beginning, thence South along the West line thereof 116 feet to the point of
beginning, and the vacated alley lying between the West line of Xxxx
0, 0, 0, 0, 0, 0 xxx 0, Xxxxxxx Xxxx Company's Subdivision of Xxxx 0 xxx 0,
Xxxxx 000, Xxxxxxx, and the East line of Xxx 0, Xxxxx 000, Xxxxxxx, all of the
above described property being located in Lancaster County, Nebraska.
39
SCHEDULE B
BUSINESS TERMS
PART I: PAYMENT DATES
The Payment Dates for purposes of this Lease shall be May 25, 1972 and each
August 25, November 25, February 25 and May 25 thereafter during the term of
this Lease.
PART II: CAPITALIZED COST; ACQUISITION COST
(a) The Capitalized Cost of the Property is $1,518,100.00.
(b) The Acquisition Cost of the Property is $1,583,120.00
PART III: UNAMORTIZED COST
The Unamortized Cost of the Property as of a particular Payment Date shall
be determined by the applicable percentage set forth below.
QUARTERS ELAPSED QUARTERS ELAPSED
SINCE BEGINNING OF SINCE BEGINNING OF
BASIC TERM PERCENTAGE BASIC TERM PERCENTAGE
------------------ ---------- ------------------ ----------
1................................. 95.6761 17................................ 91.5985
2................................. 95.4552 18................................ 91.3011
3................................. 95.2302 19................................ 90.9982
4................................. 95.0009 20................................ 90.6896
5................................. 94.7674 21................................ 90.3752
6................................. 94.5294 22................................ 90.0549
7................................. 94.2870 23................................ 89.7286
8................................. 94.0401 24................................ 89.3962
9................................. 93.7885 25................................ 89.0576
10................................ 93.5322 26................................ 88.7126
11................................ 93.2711 27................................ 88.3611
12................................ 93.0051 28................................ 88.0030
13................................ 92.7342 29................................ 87.6383
14................................ 92.4581 30................................ 87.2667
15................................ 92.1769 31................................ 86.8881
16................................ 91.8904 32................................ 86.5024
40
QUARTERS ELAPSED QUARTERS ELAPSED
SINCE BEGINNING OF SINCE BEGINNING OF
BASIC TERM PERCENTAGE BASIC TERM PERCENTAGE
------------------ ---------- ------------------ ----------
33................................ 86.1095 67................................ 67.3104
34................................ 85.7092 68................................ 66.5576
35................................ 85.3015 69................................ 65.7908
36................................ 84.8860 70................................ 65.0095
37................................ 84.4628 71................................ 64.2136
38................................ 84.0317 72................................ 63.4028
39................................ 83.5925 73................................ 62.5768
40................................ 83.1450 74................................ 61.7353
41................................ 82.6891 75................................ 60.8780
42................................ 82.2247 76................................ 60.0046
43................................ 81.7516 77................................ 59.1149
44................................ 81.2696 78................................ 58.2085
45................................ 80.7786 79................................ 57.2850
46................................ 80.2784 80................................ 56.3443
47................................ 79.7688 81................................ 55.3859
48................................ 79.2496 82................................ 54.4096
49................................ 78.7207 83................................ 53.4150
50................................ 78.1819 84................................ 52.4017
51................................ 77.6330 85................................ 51.3694
52................................ 77.0738 86................................ 50.3177
53................................ 76.5041 87................................ 49.2464
54................................ 75.9237 88................................ 48.1549
55................................ 75.3325 89................................ 47.0430
56................................ 74.7301 90................................ 45.9102
57................................ 74.1165 91................................ 44.7562
58................................ 73.4914 92................................ 43.5806
59................................ 72.8545 93................................ 42.3829
60................................ 72.2057 94................................ 41.1627
61................................ 71.5447 95................................ 39.9197
62................................ 70.8714 96................................ 38.6534
63................................ 70.1854 97................................ 37.3633
64................................ 69.4865 98................................ 36.0490
65................................ 68.7746 99................................ 34.7101
66................................ 68.0493 100............................... 33.3461
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Quarters Elapsed
Since Beginning of
Basic Term Percentage
------------------ ----------
101................ 31.9565
102................ 60.5409
103................ 29.0987
104................ 27.6295
105................ 26.1327
106................ 24.6079
107................ 23.0545
108................ 21.4719
109................ 19.8597
110................ 18.2172
Quarters Elapsed
Since Beginning of
Basic Term Percentage
------------------ ----------
111.................16.5440
112.................14.8393
113.................13.1028
114.................11.3336
115................. 9.5313
116................. 7.6952
117................. 5.8246
118................. 3.9190
119................. 1.9777
120................. 0.0000
PART IV: PURCHASE PURSUANT TO PARAGRAPH 11(C)
The purchase price payable pursuant to paragraph 11(c) shall be determined
by multiplying the Acquisition Cost of the Property by the applicable
percentage set forth below.
Quarters Elapsed
Since Beginning of
Basic Term Percentage
------------------ ----------
61..................73.5569
62..................72.8646
63..................72.1594
64..................71.4409
65..................70.4940
66..................69.7505
67..................68.9932
68..................68.2216
69..................67.2299
70..................66.4316
71..................65.6183
72..................64.7897
73..................63.7501
74..................62.8928
75..................62.0194
76..................61.1297
Quarters Elapsed
Since Beginning of
Basic Term Percentage
------------------ ----------
77..................60.0386
78..................59.1180
79..................58.1801
80..................57.2247
81..................56.0783
82..................55.0897
83..................54.0827
84..................53.0567
85..................51.8510
86..................50.7895
87..................49.7080
88..................48.6064
89..................47.3370
90..................46.1972
91..................45.0359
92..................43.8529
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Quarters Elapsed
Since Beginning of
Basic Term Percentage
------------------ ----------
93..................42.5153
94..................41.2914
95..................40.0445
96..................38.7742
97..................37.3633
98..................36.0490
99..................34.7101
100..................33.3461
101..................31.9565
102..................30.5409
103..................29.0987
104..................27.6295
105..................26.1327
106..................24.6079
Quarters Elapsed
Since Beginning of
Basic Term Percentage
------------------ ----------
107.................23.0545
108.................21.4719
109.................19.8597
110.................18.2172
111.................16.5440
112.................14.8393
113.................13.1028
114.................11.3336
115..................9.5313
116..................7.6952
117..................5.8246
118..................3.9190
119..................1.9777
120..................0.0000
PART V: PURCHASE PURSUANT TO PARAGRAPH 14
The purchase price payable pursuant to paragraph 14 shall be determined by
multiplying the Acquisition Cost of the Property by the applicable percentage
set forth below.
Quarters Elapsed
Since Beginning of
Basic Term Percentage
------------------ ----------
41..................90.4139
42..................89.9292
43..................89.4353
44..................88.9323
45..................88.1673
46..................87.6468
47..................87.1165
48..................86.5762
49..................85.7799
50..................85.2208
51..................84.6513
52..................84.0712
Quarters Elapsed
Since Beginning of
Basic Term Percentage
------------------ ----------
53..................83.2410
54..................82.6407
55..................82.0291
56..................81.4061
57..................80.5397
58..................79.8951
59..................79.2383
60..................78.5692
61..................77.6640
62..................76.9717
63..................76.2664
64..................75.5479
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Quarters Elapsed Quarters Elapsed
Since Beginning of Since Beginning of
Basic Term Percentage Basic Term Percentage
------------------ ---------- ------------------ ----------
65 ----------------- 74.6010 93 ----------------- 46.6224
66 ----------------- 73.8576 94 ----------------- 45.3985
67 ----------------- 73.1002 95 ----------------- 44.1515
68 ----------------- 72.3287 96 ----------------- 42.8813
69 ----------------- 71.3370 97 ----------------- 41.4704
70 ----------------- 70.5387 98 ----------------- 40.1561
71 ----------------- 69.7254 99 ----------------- 38.8172
72 ----------------- 68.8968 100 ----------------- 37.4532
73 ----------------- 67.8572 101 ----------------- 36.0636
74 ----------------- 66.9999 102 ----------------- 34.6480
75 ----------------- 66.1265 103 ----------------- 33.2058
76 ----------------- 65.2368 104 ----------------- 31.7366
77 ----------------- 64.1456 105 ----------------- 30.2398
78 ----------------- 63.2251 106 ----------------- 28.7150
79 ----------------- 62.2872 107 ----------------- 27.1616
80 ----------------- 61.3318 108 ----------------- 25.5790
81 ----------------- 60.1854 109 ----------------- 23.9668
82 ----------------- 59.1968 110 ----------------- 22.3243
83 ----------------- 58.1897 111 ----------------- 20.6511
84 ----------------- 57.1638 112 ----------------- 18.9464
85 ----------------- 55.9581 113 ----------------- 17.2099
86 ----------------- 54.8966 114 ----------------- 15.4407
87 ----------------- 53.8151 115 ----------------- 13.6384
88 ----------------- 52.7135 116 ----------------- 11.8023
89 ----------------- 51.4441 117 ----------------- 9.9371
90 ----------------- 50.3042 118 ----------------- 8.0261
91 ----------------- 49.1430 119 ----------------- 6.0848
92 ----------------- 47.9600 120 ----------------- 4.1071
Part VI: Lessor's Original Equity
The Lessor's Original Equity in the Property is $65,0200.00.
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PART VII: Lessor's Percentage; Lessee's Percentage
The Lessor's Percentage and the Lessee's Percentage during the respective
periods indicated shall be as set forth below:
Lessor's Lessee's
Period Percentage Percentage
------ ---------- ----------
February 25, 1972 to
February 25, 1977 -------------------- 20% 80%
February 25, 1977 to
February 25, 1982 -------------------- 25% 75%
February 25, 1982 to
February 25, 1987 -------------------- 30% 70%
February 25, 1987 to
February 25, 1992 -------------------- 35% 65%
February 25, 1992 to
February 25, 1997 -------------------- 40% 60%
February 25, 1997 to
February 25, 2002 -------------------- 45% 55%
February 25, 2002 to
February 25, 2007 -------------------- 50% 50%
February 25, 2007 to
February 25, 2012 -------------------- 60% 40%
February 25, 2012 to
February 25, 2017 -------------------- 70% 30%
February 25, 2017 to
February 25, 2022 -------------------- 80% 20%
February 25, 2022 to
February 25, 2027 -------------------- 90% 10%
February 25, 2027 to
February 25, 2032 -------------------- 100% 0%
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PART VIII: BASIC RENT
Basic Rent under this Lease shall be payable by Lessee during the term of
this Lease in installments in the dollar amounts, and shall be due and payable
on the Payment Dates, as specified below:
(i) the dollar amount of each of the installments of Basic Rent
payable on each Payment Date during the Basic Term, commencing on May 25,
1972 and continuing to and including February 25, 2002 shall be equal to
$32,709.74;
(ii) the dollar amount of each of the installments of Basic Rent
payable on each Payment Date during the first and second Extended Terms
shall be equal to $11,873.40;
(iii) the dollar amount of each of the installments of Basic Rent
payable on each Payment Date during the third and fourth Extended Terms
shall be equal to $9,894.50 and
(iv) the dollar amount of each of the installments of Basic Rent
payable on each Payment Date during the fifth and sixth Extended Terms
shall be equal to $7,915.60.
PART IX: FAIR MARKET VALUE
Unless Lessor and Lessee each shall otherwise agree in writing, the Fair
Market Value of the Property shall be determined by appraisal as follows:
Lessor and Lessee shall each appoint an appraiser, and if the
appraisers so appointed are unable to agree upon such value, then such
value shall be determined by a third appraiser to be selected by such
appraisers. In the event that such appraisers are unable to agree upon a
third appraiser, such third appraiser shall be appointed by the senior
Federal District Court judge, or such other Federal District Court judge
for the District in which the property is located as may be designated by
such senior Federal District Court judge, acting in his non-judicial
capacity.
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STATE OF NEW YORK )
ss.
COUNTY OF NEW YORK )
BE IT REMEMBERED that I, the undersigned, a Notary Public duly qualified,
commissioned, sworn and acting in and for the County and State aforesaid, hereby
certify that on the 1st day of February, 1972, there appeared before me
_____________, known to me to be the President of Xxxxxx Xxxxxxx Realty
Corporation, the general partner of BF Properties Company, an Ohio limited
partnership, and being a party to the foregoing instrument:
(Pennsylvania, Nebraska, Wisconsin, and Kentucky)
Before me appeared the above-named person, known to me to be the President
of Xxxxxx Peabody Realty Corporation, the general partner of the above-named
partnership and acknowledged before me the foregoing instrument, on the date set
forth above, on behalf of said partnership.
Witness my hand and notarial seal the day and year last above written.
(Ohio)
Before me personally appeared the above-named person, known to me to be the
President of Xxxxxx Xxxxxxx Realty Corporation who, as such officer of the
general partner of the above-named limited partnership which executed the
foregoing instrument, signed the same and acknowledged to me that he did so sign
said instrument in the name of and on behalf of said limited partnership as such
officer of its general partner, that the same is his free act and deed as such
officer of its general partner and the free act and deed of said partnership.
In testimony whereof, I have hereunto subscribed my name and affixed my
official seal, on the date set forth above.
(Florida)
Before me personally appeared the above-named person, to me known and known
to be the person described in and who executed the foregoing instrument as such
officer of the general partner of the
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limited partnership named above, and acknowledged before me that he executed the
same as such officer of such general partner in the name and on behalf of said
general partnership.
Witness my hand and official seal in the County and State aforesaid, on the
date set forth above.
(California)
Before me personally appeared the above-named person, known to me to be
such officer of the general partner of the limited partnership that executed the
within instrument, and acknowledged to me that such partnership executed the
same.
In Wintess Whereof, I have hereunto set my hand and affixed my official
seal in this certificate, on the date set forth above.
/s/ XXXXXX X. X'XXXXXX
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NOTARY PUBLIC
[NOTARIAL SEAL] XXXXXX X. X'XXXXXX
NOTARY PUBLIC, STATE OF NEW YORK
NO. 31-812_____
MY COMMISSION EXPIRES QUALIFIED IN NEW YORK COUNTY
------------------ COMMISSION EXPIRES MARCH 30, 1972
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STATE OF ILLINOIS )
) ss.:
COUNTY OF XXXX )
BE IT REMEMBERED that I, the undersigned, a Notary Public duly qualified,
commissioned, sworn and acting in and for the County and State aforesaid, hereby
certify that on the 23rd day of February, 1972, there appeared before me the
following persons, the designated officers of the corporation set opposite their
names, such corporation being a corporation of the State of Delaware and being a
party to the foregoing instrument:
/s/ XXXX X. XXXXXXX XX., Vice President
/s/ XXXXXXX X. XXXXXXXX, Secretary
XXXXXXXX FOODS CO.
(Ohio)
Before me personally appeared the above-named persons, known to me to be
the persons who, as the respective officers of the corporation set forth above,
the corporation which executed the foregoing instrument, signed the same, and
acknowledged to me that they did so sign said instrument in the name and upon
behalf of said corporation as such officers, respectively, that the same is
their free act and deed as such officers, respectively, and the free and
corporate act and deed of said corporation, that they were duly authorized
thereunto by its board of directors, and that the seal affixed to said
instrument is the corporate seal of said corporation.
(Nebraska and Kentucky)
The foregoing instrument was acknowledged before me by the above-named
persons of the corporation set forth above, on behalf of said corporation.
(Wisconsin and Pennsylvania)
Before me personally appeared the above-named persons, who acknowledged
themselves to be the designated officers of the corporation set out above
opposite their names, and that they, as such officers,
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being authorized so to do, executed the foregoing instrument for the purposes
therein contained, by signing the name of the corporation by themselves as such
officers.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal, in the
County and State aforesaid, on the date set forth above.
(Florida)
Before me personally appeared the above-named persons to me well known and
known to be the persons described in and who executed the foregoing instrument,
as such officers of the corporation set forth above, and severally acknowledged
before me, that they executed the same as such officers in the name and on
behalf of said corporation.
Witness my hand and official seal in the County and State aforesaid, on
the date set forth above.
(California)
Before me personally appeared the above-named persons, known to me to be
the persons who, as the respective officers of the corporation set forth above
executed the within instrument, known to me to be the persons who executed the
within instrument on behalf of said corporation, and acknowledged to me that
said corporation executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, on the date set forth above.
/s/ LOLOTTE X. XXXXXXXX
--------------------------------
Notary Public
[NOTARIAL SEAL]
My commission expires March 16, 1975
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