EXHIBIT 10.3
REAL PROPERTY LEASE - MENOMONIE, WISCONSIN
LEASE
This lease is made and entered into this 2nd day of February, 1999, by
and between UM Properties LLC, hereinafter referred to as "LESSOR", and RLD
Enterprises, Inc., whose address is 8120 Penn Ave. South, Suite #120, City of
Bloomington, County of Hennepin, State of Minnesota, and which does business at
1621 Indianhead Drive, Menomonie, Wisconsin, hereinafter referred to as "RLD" or
"LESSEE".
1. DESCRIPTION OF THE PREMISES.
Lessor does hereby lease to LESSEE and LESSEE does hereby lease and
take from LESSOR those certain premises more particularly described as follows:
Lot Two (2), Certified Survey Map Number 981, as recorded in Volume One
(1) of Survey Maps, at page 46, according to the records in the Office
of the Dunn County Register of Deeds along with improvements thereon,
including a building having approximately 10,000 square feet of net
rentable area in the building located at 1621 Indianhead Drive,
Menomonie, Wisconsin ("Premises").
2. TERM.
The term of this Lease shall commence on the date of the closing of the
purchase of the premises by LESSOR and continue for a term of ten (10) years
terminating on the last day of the month prior to the expiration of the basic
term of the lease.
3. USE OF PREMISES.
It is agreed that the leased premises shall be used by the LESSEE for
the manufacture, packaging and distribution of potato chips and other snack food
items and the necessary offices in connection therewith and for no other
purpose, except with the written permission of the LESSOR; subject to all local,
state and federal laws and regulations regarding the use of the premises.
LESSOR is not aware of any environmental conditions, including but not
limited to, present or past conditions with respect to soil, surface waters,
ground waters, stream sediments, involving any spill, discharge, leakage, or
contamination, and similar environmental conditions which could result in any
claims by third parties, including without limitation, governmental entities.
LESSEE warrants and represents without limitation regarding
environmental matters as follows:
(a) LESSEE has obtained all permits, licenses and other
authorizations which are required under federal,
state and local laws (collectively, "Environmental
Laws") relating to pollution or protection of the
environment, including laws relating to emissions,
discharges, releases or threatened releases of
pollutants, contaminants, hazardous or toxic
materials or wastes into ambient air, surface water,
ground water or land or otherwise relating to the
manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling
of pollutants, contaminants or hazardous or toxic
materials or wastes (collectively, "Environmental
Matters"). LESSEE is in full compliance with all
terms and conditions of such required permits,
licenses and authorizations and are also in full
compliance with all other limitations, restrictions,
conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in
the Environmental Laws or contained in any plan,
order, decree, judgment or notice. The LESSEE is not
aware of, nor has the LESSEE received notice of any
events, conditions, circumstances, activities,
practices, incidents, actions or plans which may
interfere with or prevent continued compliance or
which may give rise to any liability under any
Environmental Laws or the
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common law. The LESSEE has not received any summons,
citation, directive, letter or other communication,
written or oral, from any agency or department of any
state, federal or local government relating to any
Environmental Matters or any alleged Environmental
Matters; and no investigation, administrative order,
consent order and agreement, litigation or settlement
with respect to any Environmental Matters or any
alleged Environmental Matters has been received by
the LESSEE or is proposed, threatened, anticipated or
in existence with respect to the LESSEE.
(b) In the event LESSEE discovers, receives notice from
any governmental body or determines the existence of
any Environmental Condition the result of which may
require remedial action pursuant to any law or may be
the basis for the assertion of any third party
claims, including claims of governmental entities,
LESSEE shall promptly notify LESSOR thereof and
LESSOR may at any reasonable time cause an inspection
of the operation of the LESSEE'S business to
determine compliance with Paragraph 3(a). LESSOR
reserves the right to require that immediate remedial
action shall be taken to bring the premises and the
operations conducted on the premises into compliance
with the warranty provisions of Paragraph 3(a) of
this lease.
4. PARKING AND DRIVES.
The LESSEE, its employees, and invitees shall have the exclusive right
to use the driveways, and parking lots, as well as the improved portions of the
premises.
5. NET LEASE.
This is a "net" Lease and LESSOR shall not be required to perform any
services or do any act in connection with the leased premises not herein in this
Lease specifically set forth.
6. RENT.
LESSEE shall pay to LESSOR in advance, the annual rent in equal monthly
installments of $4,000.00 on or before the first day of each month.
Annual rent for years three through ten of the basic term of the lease
shall be:
Years Annual Monthly
Three through five $52,800.00 $4,400.00
Six through ten $57,600.00 $4,800.00
All rental payments required hereunder shall be paid to LESSOR at such
place as LESSOR indicates on the rent statement or may otherwise direct from
time to time in writing.
LESSOR shall assess and collect from LESSEE a late charge of three (3%)
percent on rent payments received after the tenth of the month and such a charge
will be made for each month that such rent payment(s) remains unpaid.
7. TAXES AND SPECIAL ASSESSMENTS.
LESSOR shall pay all real estate taxes and special assessments. In the
event the real estate taxes and assessments increase and that increase is equal
to or greater than 105 percent of the 1998 real estate taxes and assessments any
amount greater than 105 percent shall be paid by the LESSEE.
8. MAINTENANCE CHARGES.
LESSEE shall pay the costs of maintaining the leased premises including
snow plowing, lawn care, building insurance, grounds upkeep, and building and
systems maintenance.
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9. UTILITIES.
LESSEE is responsible and shall pay for all utility services.
LESSOR shall not be liable to LESSEE for any loss or damage of any kind
or description whatsoever caused or sustained by reason of failure of the
heating or ventilating and air conditioning systems servicing the leased
premises beyond the warranty period to the LESSOR or because of inability to
obtain energy or utilities for any reason.
10. INSURANCE.
The LESSEE shall maintain in full force and effect during the term
hereof, a policy of public liability insurance which LESSOR and LESSEE are named
insured; the minimum limits of such insurance shall be $1,000,000.00 combined
single limit for bodily injury and property damage. LESSEE agrees to deliver a
duplicate copy of said policy, or a certificate of insurance evidencing such
coverage, to LESSOR. Such policy shall contain a provision requiring thirty (30)
days written notice to LESSOR before cancellation of the policy can be effected.
The LESSEE shall carry and cause to be in full force and effect a fire
and extended coverage insurance policy on the building. The policy shall be
without coinsurance and shall be in amounts equal to full insurable value or
replacement value whichever is greatest. Such policy shall contain a provision
that the policy shall not be canceled except upon (30) days written notice to
the LESSOR.
Each insurance policy carried by the LESSEE covering the leased
premises or its contents shall provide that the insured party has relinquished
all rights to recover against the other party for loss or damage resulting from
perils insured against by the policy.
LESSEE agrees to hold LESSOR harmless from and indemnify LESSOR against
any and all liabilities, damages and expenses arising from injury, damage or
loss to or caused by LESSEE, its employees, guests, agents, sub-tenants or
visitors, or any property of said persons, in or about the premises, building or
grounds from any cause whatsoever, connected with the use of or activities in or
about the property. LESSEE further will make no claim against LESSOR for any
loss of or damage to the premises or property of LESSEE caused by theft,
burglary, and water, gas or other means.
11. MAINTENANCE.
The LESSEE shall be wholly responsible for the maintenance and repair
of the lease premises, and will keep them in as good condition as when turned
over to it, reasonable wear and tear and damage by fire and the elements
excepted.
The LESSEE agrees to keep the leased premises in a clean, orderly and
sanitary condition and will neither do nor permit to be done therein anything
which is in violation of insurance policies on the building or that is contrary
to law.
The LESSEE will neither commit nor suffer waste to the building or to
the leased premises.
LESSEE shall be responsible for maintenance of heating mechanical and
air conditioning fixtures and equipment which shall include the reasonable costs
of any periodic inspections and repairs that may be required and performed by an
independent mechanical contractor who shall be contracted for by LESSEE.
To the extent ESSOR has received directly or indirectly manufacturer or
contractor warranties, which relate to any improvements, such rights shall be
assigned to LESSEE. LESSOR agrees to cooperate and reasonably assist LESSEE in
the enforcement of any such warranties.
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12. APPEARANCE AND ACCESS.
LESSEE agrees to keep the grounds, building and leased premises in a
condition of good repair and appearance. All means of ingress and egress to the
premises shall remain open and free of blockage and in good repair.
13. LESSEE'S PURCHASE OPTION/RIGHT OF FIRST REFUSAL.
The LESSEE shall have the right to purchase the property after the end
of year two of the lease through end of year three for a cash purchase price not
less than three hundred thousand dollars ($300,000.00) plus all costs incurred
by LESSOR for property improvements, maintenance or other operating costs
(exclusive of real estate taxes and special assessments) and costs incurred in
acquiring the property and obtaining financing, or the fair value of the
property.
Notice of the LESSEE'S desire to purchase the property shall be given
to LESSOR by registered mail no less than six months prior to the intended
purchase date, followed with a Commercial Order to Purchase Agreement within
thirty days thereafter.
If LESSOR desires to treat the sale of the property to LESSEE as a
Section 1031 tax deferred exchange [IRC 1031 (a) (3)], the closing of the sale
of the property may be delayed, at the LESSOR'S discretion, until a suitable
replacement property can be identified and acquisition thereof is reasonably
assured. LESSOR will use all reasonable means to locate and acquire a
replacement property.
In the event LESSOR shall receive a bona fide offer for the purchase of
the demised premises and the offer of purchase shall be acceptable to LESSOR,
LESSOR shall give LESSEE the right to purchase the demised premises at the price
and on the terms of the offer so made. This right shall be extended by ESSOR
giving written notice of the offer by registered mail to LESSEE at the demised
premises, requiring LESSEE to accept the offer in writing and to sign a purchase
agreement within forty-five (45) days after the mailing of the notice.
If LESSEE fails to exercise the right to purchase, or refuses to
purchase under the terms specified above, and a sale of the demised premises is
consummated with the original offeror, this lease agreement shall remain in full
force and effect through the term and the sale shall be subject to this lease.
Nothing herein shall be construed to extend the term of this lease.
This above purchase option and right of first refusal on behalf of
LESSEE shall be available to LESSEE during the periods specified herein, but the
privileges shall not be transferred to the executor, trustee, administrator,
heirs, assigns of LESSEE, or any other person or entity.
However, if LESSEE is habitually delinquent in the payment of rent, the
purchase option and right of first refusal may be withdrawn by the LESSOR. For
this purpose "habitually delinquent" shall be defined as three (3) defaults, or
as defined in section 16 herein, within any twelve (12) month period, or a total
of six defaults during the elapsed term of the lease.
14. CONDEMNATION LOSS.
Should all the leased premises be taken in condemnation proceedings or
by exercise of any right of eminent domain, then this Lease shall automatically
terminate as of the date the condemning authority or the authority exercising
its right of eminent domain takes possession of the leased premises. If there is
a partial taking but LESSEE continues to occupy the premises in part, the rent
shall be reduced in the proportion that the unoccupied part of the premises
bears to the entire premises. If, as a result of partial taking, the leased
premises are not longer usable for the purpose specified in Paragraph 3 of this
Lease, then in any such case, the LESSEE may terminate this Lease as of the date
the condemning authority or the authority exercising its right of eminent domain
takes possession of the property by giving written notice thereof to the LESSOR.
LESSEE shall have no claim against LESSOR for the value of any unexpired term of
the Lease.
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15. ASSIGNMENT.
The LESSEE will not assign, mortgage, or encumber this Lease, and will
not sublet any part of said premises without prior written consent of the
LESSOR. Said consent will not be unreasonably withheld. Any such assignment or
subletting will not release the LESSEE from its responsibilities under this
Lease, unless expressly agreed to in writing by the LESSOR. The LESSOR shall
have the right to any profit made in such assignment or subletting, but only in
the event that the LESSEE is using less than one-half of its leased premises for
its business operation. If the LESSEE shall be declared bankrupt, shall have a
receiver appointed for its property, shall make an assignment for the benefit of
creditors, transfer a controlling interest in its business, or its rights
hereunder shall be taken under execution, such event shall be construed as an
assignment of this Lease within the meaning hereof, and the LESSOR shall have
the right to terminate this Lease.
16. DEFAULT OF LESSEE.
(a) In the event of any failure of LESSEE to pay any
rental due hereunder within ten (10) days after the
same shall be due, or any failure to perform any
other of the terms, conditions or covenants of this
Lease to be observed or performed by LESSEE for more
than thirty (30) days after written notice of such
failure shall have been given to LESSEE, or if LESSEE
or any agent of LESSEE shall falsify any report
required to be furnished to LESSOR pursuant to the
terms of this Lease, or if LESSEE or any guarantor of
this Lease shall become bankrupt or insolvent, or
file any debtor proceedings or any person shall take
or have against LESSEE or any guarantor of this Lease
in any court pursuant to any statute either of United
States or of any state a petition in bankruptcy or
insolvency or for reorganization or for the
appointment of a receiver or trustee of all or
portion of LESSEE'S or any such guarantor's property,
or if LESSEE or any such guarantor makes an
assignment for the benefit of creditors, or petitions
for or enters into an arrangement with its creditors,
or if LESSEE shall abandon the Demised Premises or
suffer this Lease to be taken under any writ of
execution, then in any such event LESSEE shall be in
default hereunder, and LESSOR, in addition to other
rights of remedies it may have, shall have the
immediate right of re-entry and may remove all
persons and property from the Demised Premises and
such property may be removed and stored in a public
warehouse or elsewhere at the cost of, and for the
account of LESSEE, without being guilty of trespass,
or becoming liable for any loss or damage which may
be occasioned thereby.
(b) Should LESSOR elect to re-enter the Demised Premises,
as herein provided, or should it take possession of
the Demised Premises pursuant to legal proceedings or
pursuant to any manner provided for by law, it may
either terminate this Lease or it may from time to
time, without terminating this Lease, make such
alterations and repairs as may be necessary in order
to relet the Demised Premises, and relet the Demised
Premises or any part thereof for such term or terms
(which may be for a term extending beyond the term of
this Lease) and at such rental or rentals and upon
such other terms and conditions as LESSOR in its sole
discretion may deem advisable. Upon each such
subletting all rentals received by the LESSOR from
such reletting shall be applies first to the payment
of any indebtedness other than rent due hereunder
from LESSEE to LESSOR; second, to the payment of any
costs and expenses of such reletting, including
brokerage fees and attorney's fees and costs of such
alterations and repairs; third, to the payment of the
rent due and unpaid hereunder, and the residue, if
any, shall be held by LESSOR and applies in payment
of future rent as the same may become due and payable
hereunder. If such rentals received from such
reletting during any month be less than that to be
paid during that month by LESSEE hereunder, LESSEE,
upon demand, shall pay any such deficiency to LESSOR.
No such re-entry or taking possession of the Demised
Premises by LESSOR shall be construed as an election
on its part to terminate this Lease unless a written
notice of such intention be given to LESSEE or unless
the termination thereof be decreed by a court or
competent jurisdiction. Notwithstanding any such
reletting without termination, LESSOR may at any time
after such re-entry and reletting elect to terminate
this Lease for any such breach, in addition to any
other remedies it may have, it may
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recover from LESSEE all damages it may incur by
reason of such breach, including the cost of
recovering the Demised Premises, attorney's fees, and
costs, the unamortized portion of any leasehold
improvements made by LESSOR for LESSEE and including
the worth at the time of such termination of the
excess, if any, of the amount or rent and charges
equivalent to rent reserved in this Lease for the
remainder of the stated term over the then reasonable
rental value of the Demised Premises for the
remainder of the stated term, all of which amounts
shall be immediately due and payable from LESSEE to
LESSOR.
(c) LESSOR may, at its option, instead of exercising any
other rights or remedies available to it in this
Lease or otherwise by law, statute or equity, spend
such money as is reasonably necessary to cure any
default of LESSEE herein and the amount so spent, and
costs incurred, including attorney's fees in curing
such default, shall be paid by LESSEE, as additional
rent, upon demand.
(d) In the event suit shall be brought for recover of
possession of the Demised Premises, for the recovery
of rent or any other amount due under the provisions
of this Lease, or because of the breach of any other
covenant herein contained on the part of the LESSEE
to be kept or performed, and a breach shall be
established, LESSEE shall pay to LESSOR all expenses,
incurred therefore, including attorney's fees and
costs, together with interest on all such expenses at
the rate of twelve percent (12%) per annum from the
date of such breach of the covenants of this Lease.
(e) Any rents due or other amounts due or that may become
due under the provisions of this Lease or because of
the breach of any covenants herein contained on the
part of the LESSEE, may be paid by Ronald J. Bach, a
partner of UM Properties LLC, at his sole discretion
and such payments will be in the form of a secured
loan. The loan(s) will bear interest at 15% per annum
and be secured by substantially all assets of RLD
under the Security agreement issued by RLD, dated
October 5, 1995 granting Ronald J. Bach, as a secured
party, a security interest in the assets of RLD.
(f) LESSEE waives any demand for possession of the
Demised Premises, and any demand for payment of rent
and any notice of intent to re-enter the Demised
Premises, or of intent to terminate this Lease, other
than the notices above provided in this Article, and
any other notice or demand prescribed by any
applicable statutes or laws.
(g) No remedy herein or elsewhere in this Lease or
otherwise by law, statute or equity, conferred upon
or reserved to LESSOR or LESSEE shall be exclusive of
any other remedy, but shall be cumulative, and may be
exercised from time to time and as often as the
occasion may arise.
17. ALTERATIONS.
The LESSEE shall not make any alterations to the leased premises
without the written consent of the LESSOR, such consent not to be unreasonable
withheld. If the LESSEE shall desire to make any such alterations, an accurate
description shall first be submitted to and approved by the LESSOR and shall be
done by the LESSEE at its own expense. LESSEE agrees that all such work shall be
done in a good, workmanship like manner, and in conformance with applicable
building codes, that the structural integrity of the building shall not be
impaired, and that no liens shall attach to the premises by reason thereof.
Unless the LESSOR shall elect at any time that all or any part of such
alterations shall remain, the premises shall be restored to its original
condition (except as to any part of such alterations which the LESSOR shall
elect to remain) by the LESSEE before the expiration of the Lease at LESSEE'S
own expense. Any such alterations shall become the property of the LESSOR as
soon as they are affixed to the premises and all right, title and interest
therein of the LESSEE shall immediately cease unless otherwise stated in
writing. The LESSEE, however, shall remain the owner of any installed trade
fixtures at the expiration of this Lease Agreement, so long as the premises are
restored to their original condition.
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18. SIGNS.
The LESSEE shall have the right, at its own risk and expense, to place
signs identifying its business on the exterior walls of the building and next to
any door openings directly into the premises, so long as all such signs conform
with the LESSOR'S building standards and criteria and with all applicable zoning
laws. Said signs shall not be erected without the written prior approval of the
LESSOR. LESSEE agrees to maintain its signs in good repair, to remove its signs
at the end of the term or any extended term, repairing any damage caused by such
removal and to hold LESSOR harmless from any loss, cost, or damage resulting
from the erection, existence, maintenance, or removal of LESSEE'S sign.
19. ENTRY.
The LESSOR shall have the right to keep pass keys to the leased
premises. The LESSEE agrees that no additional locks will be placed on any of
the LESSEE'S doors without the written consent of LESSOR. LESSOR, its agencies,
and its employees shall have the right to enter the premises at all reasonable
times to inspect them, to make repairs, and to maintain the building of which
the premises are a part. During the one hundred twenty days prior to the
expiration of the term, the LESSOR or its agents may exhibit the premises to
prospective LESSEES. LESSOR shall also have the right of entry as provided in
Paragraph 16. LESSOR shall have the right at all reasonable times and upon
reasonable notice to LESSEE to enter the Demised Premises for the purpose of
exhibiting the premises to prospective purchasers and/or lessees thereof.
20. SUBORDINATION.
This Lease shall be subordinated to any mortgages that may now exist or
than may hereafter be placed upon the Demised Premises and to any and all
advances made thereunder, and to the interest upon the indebtedness evidenced by
such mortgages, and to all renewals, replacements and extensions thereof. In the
event of execution by LESSOR after the date of this Lease any such mortgage,
renewal, replacement or extension. LESSEE agrees to execute a subordination
agreement with the holder thereof which agreement shall provide that:
(a) Such holder shall not disturb the possession and
other rights of LESSEE so long as LESSEE is not in
default hereunder.
(b) In the event of acquisition of title of the Demised
Premises by such holder, such holder shall accept the
LESSEE as LESSEE of the Demised Premises under the
terms and conditions of this Lease and shall perform
all the obligations of LESSOR hereunder, and
(c) The LESSEE shall recognize such holder as LESSOR
hereunder.
LESSEE shall, upon receipt of a request from LESSOR therefor, execute
and deliver to LESSOR or to any proposed holder of a mortgage or trust deed or
to any proposed purchaser of the premises, a certificate in recordable form,
certifying that this Lease is in full effect, and that there are no offsets
against rent nor defenses to LESSOR'S performance under this Lease, or setting
forth any such offsets or defenses claimed by LESSEE as the case may be.
21. ATTORNMENT.
In the event of a sale or assignment of LESSOR'S interest, in the
Premises, or the Building in which the Demised Premises are located, or this
Lease, or if the Premises comes into custody or possession of a mortgagee or any
other party whether because of a mortgage foreclosure, or otherwise. LESSEE
shall attorney to such assignee or other party and recognize such party as
LESSOR hereunder; provided, however, LESSEE'S peaceable possession will not be
disturbed so long as LESSEE faithfully performs its obligations under this
Lease. LESSEE shall execute, on demand, any attornment agreement required by any
such party to be executed, containing such provisions as such party may require.
LESSOR shall have no further obligations under this Lease after any such
assignment.
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22. NOVATION IN THE EVENT OF SALE.
In the event of the sale of the Demises Premises, LESSOR shall be and
hereby is relieved of all covenants and obligations created hereby accruing from
and after the date of sale, and such sale shall result automatically in the
purchaser assuming and agreeing to carry out all the covenants and obligations
of LESSOR herein. Notwithstanding the foregoing provisions of this Section 22,
LESSOR in the event of a sale of the Demised Premises, shall cause to be
included in this agreement of sale and purchase a covenant whereby the purchaser
of the Demised Premises assumes and agrees to carry out all of the covenants and
obligations of LESSOR herein.
The LESSEE agrees at any time and from time to time upon not less than
ten (10) days prior written request by the LESSOR to execute, acknowledge and
deliver to the LESSOR a statement in writing certifying that this Lease is
unmodified and in full force and effect, or if modified, stating the
modification, and the dates to which the basic rent and other charges have been
paid in advance, if any, it being intended that any such statement delivered
pursuant to this paragraph may be relied upon by any prospective purchaser of
the fee or mortgagee or assignee of any mortgage upon the fee of the Demised
Premises.
23. NOTICES.
All notices, consents, demands and requests, which may be or are
required to be given by either party of the other, shall be in writing, and sent
by United States registered or certified mail, with return receipt requested,
addressed to LESSEE at the street address set forth in paragraph 1 and to the
LESSOR in care of Ronald J. Bach, at 6625 Dakota Trail, Edina, MN 55439, or to
such other address as LESSOR may direct in writing in the future.
The date which said registered or certified mail is mailed by the
LESSOR shall be conclusively deemed to be the date on which a notice, consent,
demand, or request is given or made. The above address of a party may be changed
at any time or from time to time by notice given by said party to the other
party in the manner hereinabove provided.
24. SHORT FORM LEASE.
The parties hereto shall, at the option of either party, execute a
short form of Lease for recording purposes and, in such event, the terms
thereof, shall constitute a part of this Lease as fully as through recited at
length herein.
25. ASSUMPTION.
The LESSOR may assign its right, title and interest in this Lease and
such assignment shall hence terminate all the LESSOR'S obligations so long as
the LESSOR is not in default when such assignment is made and the assignee
assumes the LESSOR'S responsibilities thereafter. This LEASE and all the
covenants, terms, provisions and conditions herein contained shall inure to the
benefits, and be binding upon the LESSOR and LESSEE, their respective successors
and assigns.
26. CLAIMS.
The LESSEE will make no claim against the LESSOR for any loss or damage
to property caused by theft, burglary, water, gas, electricity, or other means,
unless LESSOR has been negligent in not making reasonable precaution to prevent
such loss or damage.
27. IMPAIRMENT OF USE.
If the premises shall become untenantable or unfit for occupancy, in
whole or in part, by the total or partial destruction of the building by fire or
other casualty, this Agreement may, at the option of the LESSOR, cease and
terminate and LESSEE shall have no claim against LESSOR for the value of any
unexpired term of said agreement. If LESSOR shall elect to restore the premises,
rent shall be abated for such period of restoration in accordance with the ratio
of the portion of the premises deemed untenantable to the entire premise.
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If the loss is covered by insurance, and if the proceeds thereof are
sufficient to rebuild or repair the improvement without the need for any
additional contribution of funds by the LESSOR, the LESSOR shall at the option
of the LESSEE rebuild or repair the premises to the condition existing prior to
the loss. If LESSEE selects this option, the Lease shall remain in full force
and effect.
28. QUITE ENJOYMENT.
LESSEE, upon payment of the rent herein reserved and upon performance
of all the terms, covenants and conditions of this Lease by it to be kept and
performed, shall at all times, during the term hereof or during any extension or
renewal hereof, peaceably and quietly enjoy the leased premises without any
disturbance from LESSOR, or from any other person claiming through LESSOR. Upon
expiration or sooner termination of the term hereof, LESSEE shall surrender the
leased premises in good condition and repair, except for reasonable wear and
tear, condemnation and casualty.
29. HOLDING OVER.
If LESSEE shall hold over the leased premises or any part thereof after
the expiration of the term hereof such holding over shall be construed only to
be tenancy from month to month subject to all of the covenants, conditions and
obligations hereof except that the rent shall be 150% of the amount determined
in paragraph 6. Nothing herein shall be construed to give LESSEE any rights to
hold over and to continue in possession of the leased premises after the
expiration of the term hereof.
30. DEPOSIT.
LESSEE has deposited with LESSOR the sum of Eight Thousand ($8,000.00)
Dollars. Said sum shall be held by LESSOR as security for the faithful
performance by LESSEE of all the terms, covenants, and conditions of this Lease
to be performed by LESSEE. The deposit shall not bear interest and may be
applied by LESSOR to any default or non-payment by LESSEE and in such event,
LESSEE shall be required to deposit an additional amount with LESSOR to restore
the deposit to its original amount. If LESSEE shall fully and faithfully perform
every provision of this Lease to be performed by it, the security deposit or any
balance thereof shall be returned to LESSEE at the expiration of the Lease term.
31. OTHER PROVISIONS.
The invalidity or unenforceability of any provisions hereof shall not
affect or impair the validity of any other provisions.
The headings herein are inserted only for convenience and reference and
shall in no way define, limit, or describe the scope or intent of any provisions
of this Lease. As used herein and where necessary, the singular imports the
plural and vice versa, and masculine, feminine and neuter pronouns and
expressions are interchangeable.
The covenants and agreements herein contained shall bind and shall
inure to the benefit of the LESSOR and LESSEE, their respective heirs,
administrators, legal representatives, successors and assigns.
During the term of this Lease Agreement, in the event the LESSEE should
pay to the LESSOR an amount which is less than the amount due at that time, and
the LESSOR receives and deposits such payment, such receipt and deposit shall
not be assumed to be payment in full, but rather partial payment towards the
LESSEE'S account.
This Lease shall be governed by, construed and enforced in accordance
with the Laws of the State of Minnesota.
One or more waivers of any covenant, term or condition of this Lease by
either party shall not be construed by the other party as a waiver of subsequent
breach of same covenant, term or condition. The failure or delay on the part of
the other party to enforce or exercise at any time any of the provisions, rights
or remedies or this Lease shall in no way be construed to be a waiver thereof
nor in any way effect the validity of this Lease or any part thereof or the
right of the party to thereafter enforce each and every such provisions, right
or remedy.
<PAGE>
32. LENDERS AGREEMENT.
LESSEE will agree to sign Estoppel and Subordination Letters as
required.
33. ADDENDA.
This instrument contains all of the agreements and conditions made
between the parties to this Lease and may not be modified orally or in any other
manner than by agreement in writing signed by all parties to this Lease.
The signatories below warrant that they are duly authorized to enter
into this Lease representing the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed the day and year above written.
LESSOR:
UM PROPERTIES LLC.
By /s/
-----------------------------
Its President
-----------------------------
LESSEE:
RLD Enterprises, Inc.
By /s/ James Garlie
-----------------------------
James Garlie
Its President
-----------------------------
<PAGE>
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE is entered into this 30th day of November,
1999, by and between UM Properties, LLC ("LESSOR") and Rachel's Gourmet Snacks,
Inc., a Minnesota corporation (Charter No. 6J-240), Rachel's Gourmet Snacks,
Inc., a Minnesota corporation (Charter No. 6Z-890), and GO-RACHELS.COM CORP., a
Minnesota corporation (collectively "LESSEE").
RECITALS:
A. On February 2, 1999 UM Properties, LLC, as LESSOR, entered
into a Lease Agreement with RLD Enterprises, Inc., as LESSEE
covering property located at 1621 Indianhead Drive, Menomonie,
Wisconsin, a true and correct copy of which is attached hereto
as Exhibit A ("the Lease Agreement").
B. Rachel's Gourmet Snacks, Inc. (Charter No. 6J-240) and
Rachel's Gourmet Snacks, Inc. (Charter No. 6Z-890) were both
formerly known as RLD Enterprises, Inc.
C. It was and is the intention of the LESSOR and LESSEE that the
three affiliated entities collectively identified above as
LESSEE shall be joint lessees, jointly and severally liable
and responsible to the LESSOR for all obligations of the
lessee under the Lease Agreement.
D. The parties hereto wish to enter into this Amendment of Lease
to reflect their understandings as reflected above.
IT IS AGREED:
1) Parties. The lessees in the Lease Agreement, defined collectively as
"LESSEE", are Rachel's Gourmet Snacks, Inc. (Charter No. 6J-240), Rachel's
Gourmet Snacks, Inc. (Charter No. 6Z-890), and GO-RACHEL'S.COM CORP., who shall
be jointly and severally liable and responsible for all of the lessees'
obligations to the LESSOR under the Lease Agreement.
2) Remainder of Terms Unchanged. Except as herein amended, the original
terms of the Lease Agreement shall remain unchanged, and in full force and
effect.
UM Properties, LLC
By /s/
--------------------------------
Its President
----------------------------
Rachel's Gourmet Snacks, Inc.
(Charter No. 6J-240)
By /s/ Lawrence C. Castriotta
--------------------------------
Lawrence C. Castriotta
Its President
----------------------------
Rachel's Gourmet Snacks, Inc.
(Charter No. 6Z-890)
By /s/ Lawrence C. Castriotta
--------------------------------
Lawrence C. Castriotta
Its President
----------------------------
<PAGE>
GO-RACHEL'S.COM CORP.
By /s/ Lawrence C. Castriotta
--------------------------------
Lawrence C. Castriotta
Its President
----------------------------
