EXHIBIT 10.5
HANGAR LICENSE AGREEMENT
Agreement, dated September 19, 2002, by and between CONAGRA FOODS,
INC., a Delaware corporation ("ConAgra") and SWIFT BEEF COMPANY, a Delaware
corporation ("Company").
RECITALS:
This Agreement is made with reference to the following facts and
circumstances:
(a) Company is the assignee from ConAgra of the tenant's interest
in land in Greeley, Weld County, Colorado leased from
Greeley-Weld County Airport Authority ("Authority") pursuant
to a Greeley-Weld County Airport Ground Lease Agreement for
Land Space # 19 & 65 dated August 2, 2000, as amended by an
Amendment No. 1 dated October 27, 2000 and an Amendment No. 2
dated December 4, 2001 (the "Ground Lease"), as more
particularly described therein (the "Land").
(b) Company is the transferee from ConAgra of the buildings,
fixtures and other improvements affixed to the Land (the
"Hangar"). The Land and the Hangar are collectively referred
to as the "Premises".
(c) ConAgra and Company each own an aircraft that is based at the
Hangar, described as:
ConAgra Learjet: Learjet 35A S/N 459 N829CA ("ConAgra Plane")
Company Learjet: Learjet 35A S/N 590 N827CA ("Company Plane")
collectively the "Planes".
(d) The parties desire to set forth herein certain other
agreements with respect to the joint use of the Premises by
the parties.
AGREEMENT:
In consideration of the foregoing recitals which are incorporated with
and are made a part of this Agreement, and in further consideration of the
mutual covenants and agreements hereinafter contained, the parties agree,
subject to the terms and conditions hereinafter set forth, as follows:
1. Term. The term of this Agreement shall be two (2) years, commencing
on September 19, 2002 (the "Commencement Date and ending on September 19, 2004
(the "Termination Date").
2. Maintenance of Premises. Company shall, at its sole cost and
expense, be responsible for all maintenance, repair, replacement of and services
to the Premises and the performance of all of the tenant's obligations under the
Ground Lease. Services include, but are
not limited to, weather reporting services, utilities, electrical, trash,
janitorial, snow removal, mowing and the like.
3. Non-Exclusive License.
(a) Grant of License. Company hereby grants to ConAgra a
non-exclusive license for the Licensed Premises
(defined below) for the storage, maintenance,
scheduling and operation of the ConAgra Plane (the
"Permitted Use").
(b) License Fee. ConAgra shall pay Company the sum of
Eighteen Thousand and No/100 Dollars ($18,000.00) per
annum, payable monthly in advance, in equal monthly
installments of One Thousand Five Hundred and No/100
Dollars ($1,500.00) (the "License Fee") for ConAgra's
use of the Licensed Premises. ConAgra shall timely
pay to Company the License Fee on the first day of
each month, without notice, demand, deduction or set
off (except as otherwise expressly provided herein),
by good and sufficient check drawn on a national
banking association at Company's address provided for
in Section 10 of this Agreement or as otherwise
specified by Company and shall be accompanied by all
applicable state and local sales or use taxes. All
past due payments required of ConAgra hereunder shall
bear interest from the date due until paid at the
lesser of eighteen percent per annum or the maximum
lawful rate of interest.
(c) Licensed Premises. As used herein, the term "Licensed
Premises" shall mean that portion of the Premises
that is reasonably necessary for the Permitted Use
and that does not interfere with Company's use of the
Premises and operation of the Company Plane, as
reasonably determined by Company, but in no event
shall the Licensed Premises be more than 50% of the
Premises.
(d) Use. ConAgra shall not use the Licensed Premises for
any other purpose without the express written consent
of Company, which consent shall not be unreasonably
withheld. ConAgra agrees to pay any costs, loss,
liability or damages which may arise by reason of
ConAgra's use of the Licensed Premises hereunder.
Additionally, ConAgra's use of the Licensed Premises
shall be in such a manner so as not to interfere in
any way with the operations of Company on the
Premises, as determined by the Company in its
reasonable discretion. Notwithstanding any provision
herein to the contrary, Company agrees that the
Company's use of the Premises shall not interfere
with ConAgra's Permitted Use and Operation of the
ConAgra Plane. ConAgra shall fully pay for all labor
and materials used in, on, or about the Licensed
Premises and will not permit or suffer any mechanics'
or materialmen's liens of any nature to be affixed
against Premises by reason of any work done or
materials furnished to the Licensed Premises at
ConAgra's instance or request.
2
4. Non-liability. ConAgra shall not be liable for, and Company waives,
releases and covenants not to xxx ConAgra for, any claim, liability, damage,
cost, fine, penalty or expense in any way relating to the maintenance, repair or
operation of the Premises.
5. Indemnification. Company shall indemnify, defend and hold ConAgra
harmless from and against all losses, damages, liabilities, costs and expenses,
including, but not limited to attorney's fees and legal costs, arising out of:
(a) a default under the Ground Lease; or (b) the Company's or its employees',
agents' or contractors' negligence or willful misconduct in connection with the
use, maintenance, repair or operation of the Premises or the Company Plane.
ConAgra shall indemnify, defend and hold Company harmless from and against all
losses, damages, liabilities, cost and expenses, including, but not limited to
attorney's fees and legal costs, arising out of ConAgra's or its employees',
agents', or contractors' negligence or willful misconduct in connection with the
maintenance, repair or operation of the ConAgra Plane or other activities of
such persons at the Premises.
6. Insurance.
(a) Insurance on the Hangar. Company shall, at its sole
cost and expense, keep the Hangar insured against
loss by an "all risk" property insurance policy in an
amount sufficient to prevent Company from being a
co-insurer under the terms of the applicable policy,
but in any event in an amount not less than ninety
percent (90%) of the full replacement value of the
Hangar, as determined from time to time. Such
insurance shall contain a provision that no act or
omission of Company or ConAgra shall affect or limit
the obligation of the insurance company to pay the
amount of any loss sustained and shall contain a
waiver of subrogation. Nothing contained herein shall
be construed as creating any liability or
responsibility on the part of ConAgra for the
adequacy of insurance coverage on the Hangar. Company
shall be deemed to be a self-insurer as to the
deductible, self-insurance retention, or co-insurance
applicable to such insurance coverage and shall pay
any such amount applicable in the event of such loss
or damage.
(b) Hangarkeepers Liability Insurance. Company shall, at
its sole cost and expense maintain hangarkeepers
liability insurance affording minimum single limit
protection of Five Million Dollars ($5,000,000.00)
per occurrence, and Ten Million Dollars
($10,000,000.00) in the aggregate.
(c) Liability Insurance. The parties shall each, at their
respective sole cost and expense maintain:
(i) Commercial general liability insurance written on
an occurrence form, including blanket contractual
liability coverage against claims for bodily injury,
death and property damage occurring in or about the
Premises, affording minimum single limit protection
of Five Million Dollars ($5,000,000.00) per
occurrence, and Ten Million Dollars ($10,000,000.00)
3
in the aggregate, with respect to personal injury or
death and property damage; and
(ii) Automobile liability insurance against claims
for bodily injury, death and property damage,
affording minimum single limit protection of Two
Million Dollars ($2,000,000.00) with respect to
personal injury or death and property damage
occurring or resulting from one occurrence.
(d) Terms Applicable to All Insurance Policies. All
insurance policies maintained by the parties shall be
issued by financially sound insurance companies duly
authorized to conduct business in the State of
Colorado. The insurance companies shall be required
to give the parties thirty (30) days prior written
notice in the event of cancellation or material
alteration of coverage. Upon request, a party shall
furnish the other party a certificate of insurance
evidencing the coverages required hereunder.
7. Termination. This Agreement may be terminated before the Termination
Date under the following circumstances:
(a) The parties may agree to terminate this Agreement at any time
and under any circumstances that have been mutually agreed
upon in writing.
(b) At the option of ConAgra on ninety (90) days prior written
notice to Company.
(c) If one of the parties breaches the terms of this Agreement or
any of the other documents referenced herein, the other party
may give the breaching party a notice in writing which
specifically sets out the nature and extent of the breach, and
the steps that must be taken to cure the breach.
After receiving such a written notice, the breaching party
will then have ten (10) days to cure the breach. If the
breaching party does not do so, the non-breaching party will
have the right to terminate this Agreement.
(d) In the event that a party to this Agreement incurs costs,
expenses, and attorneys' fees in connection with protecting
its rights or enforcing its remedies following a breach of
this Agreement by the other party, the breaching party must
reimburse the non-breaching party for all such costs,
expenses, and attorneys' fees, regardless of whether or not
the protection of rights or the enforcement of remedies
involved judicial proceedings, arbitration proceedings, or
other formal dispute resolution proceedings. The breaching
party must reimburse the non-breaching party for these costs,
expenses, and attorneys' fees within ten (10) days of
receiving a reasonably detailed reimbursement claim from the
non-breaching party.
8. Survival of Claims. Any claims that the parties have against each
other that arise out of actions or omissions that take place while this
Agreement is in effect will survive the termination of this Agreement for three
(3) years after termination of this Agreement.
4
9. Authority. Both parties to this Agreement represent and warrant
that they have taken all corporate action necessary to authorize them to enter
into and be bound by this Agreement. The parties further represent and warrant
to each other that the officer signing this Agreement on behalf of each party
has the necessary authority to do so, and has the authority to bind the party on
whose behalf he is signing to perform its duties and obligations under this
Agreement.
10. Notices. All written notices sent under this Agreement will be sent
by certified mail, return receipt requested, or by facsimile. All such notices
will be effective upon receipt.
Notices to ConAgra will be addressed as follows:
ConAgra Flight Operations
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
ConAgra Foods, Inc.
Xxx XxxXxxx Xxxxx
Xxxxx, Xxxxxxxx 00000-0000
Attention: Senior Vice President - Controller
Facsimile No. (000) 000-0000
Notices to Company will be addressed as follows:
Swift Beef Company
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: President
Facsimile No. (000) 000-0000
With a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxxxx Xxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile No. (000) 000-0000
11. Governing Law. This Agreement will be interpreted and enforced in
accordance with the laws of the State of Colorado.
5
12. Assignment. This Agreement may be assigned by either party with
prior written notice to the other party.
13. Entire Agreement. This Agreement and the other documents referenced
in it set out the entire agreement between the parties regarding the matters
described in this Agreement. The parties agree that there are no other oral or
written understandings or agreements between them regarding these matters, and
that this Agreement and the other documents referenced in it supersede any
previous oral or written understandings or agreements.
14. Interpretation. This Agreement and any other documents related to
it will be interpreted in a fair and neutral manner, without favoring one party
over the other. No provision of this Agreement or any other document related to
it will be interpreted for or against any party because the provision was
drafted by that party or its legal representatives.
15. Amendment, Modification, or Waiver. No amendment, modification, or
waiver of any provision of this Agreement or any other document related to it
will be effective unless it is made in writing, unless it is signed by the
parties to be bound by it, and unless it clearly specifies the nature and extent
of the amendment, modification, or waiver.
16. Severability. If any provision of this Agreement is held to be
invalid or unenforceable under any applicable law, that holding will not affect
the validity or enforceability of the rest of the Agreement. Also, any provision
of this Agreement which is held to be invalid or unenforceable will not be
completely invalidated, but will instead be considered amended to the extent
necessary to remove the cause of the invalidity or the unenforceability.
17. Relationship of Parties. The relationship of the parties hereunder
shall be that of independent contractors, and nothing shall be construed to
alter this relationship. Nothing herein shall be construed to create a
relationship of partner, agency, joint venture or employer/employee between the
parties.
18. No Waiver. If either party to this Agreement fails to insist upon
strict performance of any obligation under this Agreement or any other document
related to it, that failure will not result in a waiver of that party's right to
demand strict performance in the future. This will be the case no matter how
long the failure to insist upon strict performance continues.
19. Successors and Assigns. This Agreement will be binding upon and
will continue in effect for the benefit of the parties to it, as well as their
successors and permitted assigns.
20. Headings and Captions. The headings and captions of the sections
and subsections of this Agreement are for convenience of reference only. Those
headings and captions are not part of this Agreement, and will not be used in
interpreting the Agreement.
21. Company Plane Pilots. Simultaneous with the execution of this
Agreement, ConAgra shall terminate two (2) pilots, selected by ConAgra, who
regularly pilot the Company Plane, and Company shall offer such pilots
employment to pilot the Company Plane at the same base salary as such pilots
received from ConAgra. If such pilots, or either of them, accept
6
employment with Company, nothing contained in this Agreement shall prohibit
Company from terminating or changing the terms of employment of any such pilot
(other than a reduction of such pilot's base salary) after the date hereof.
[Signatures on next page]
7
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement effective as of the date set forth above.
CONAGRA FOODS, INC. SWIFT BEEF COMPANY
By: /s/ XXXXXX X. XXXXXX By: /s/ XXXXX X. XXXXX
--------------------------------- --------------------------------
Print Name: Xxxxxx X. Xxxxxx Print Name: Xxxxx X. Xxxxx
Title: Executive Vice President, Title: Vice President, Tax
Operations Control and
Development
