<PAGE>
FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(Mark One)
X Quarterly Report Pursuant to Section 13 or 15(d) of the
--- Securities Exchange Act of 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 28, 1996
or
--- Transition Report Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Commission File No. 1-9973
THE MIDDLEBY CORPORATION
-------------------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 36-3352497
- ------------------------------- ------------------------------------
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
1400 TOASTMASTER DRIVE, ELGIN, ILLINOIS 60120
- ---------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
Registrant's Telephone No., including Area Code (847) 741-3300
---------------------
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding twelve (12) months (or for such shorter period that the Registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. YES X NO
--- ---
As of November 12, 1996, there were 8,421,743 shares of the registrant's common
stock outstanding.
<PAGE>
THE MIDDLEBY CORPORATION AND SUBSIDIARIES
QUARTER ENDED SEPTEMBER 28, 1996
INDEX
DESCRIPTION PAGE
- ----------- ----
PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
BALANCE SHEETS
September 28, 1996 and December 30, 1995 1
STATEMENTS OF EARNINGS
September 28, 1996 and September 30, 1995 2
STATEMENTS OF CASH FLOWS
September 28, 1996 and September 30, 1995 3
NOTES TO FINANCIAL STATEMENTS 4
Item 2. Management's Discussion and Analysis
of Financial Condition and Results of
Operations 8
PART II. OTHER INFORMATION
<PAGE>
PART I. FINANCIAL INFORMATION
THE MIDDLEBY CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS)
(UNAUDITED)
ASSETS SEPT. 28, 1996 DEC. 30, 1995
- --------------------------------------------- ------------- -------------
Cash and Cash Equivalents.................... $ 958 $ 972
Accounts Receivable, net..................... 19,115 14,058
Inventories, net............................. 21,062 18,320
Prepaid Expenses and Other................... 1,271 879
Current Deferred Taxes....................... 2,086 2,086
Net Assets of Discontinued
Operations (see Note 2).................... 10,149 12,803
-------- --------
Total Current Assets..................... 54,641 49,118
Property, Plant and Equipment, net of
accumulated depreciation of
$11,478 and $10,642........................ 18,480 17,081
Excess Purchase Price Over Net Assets
Acquired, net of accumulated
amortization of $3,550 and $3,341.......... 7,568 7,777
Deferred Taxes............................... 2,930 2,930
Other Assets................................. 1,939 2,014
-------- --------
Total Assets............................. $ 85,558 $ 78,920
-------- --------
-------- --------
LIABILITIES AND SHAREHOLDERS' EQUITY
- -------------------------------------
Current Maturities of Long-Term Debt......... $ 2,556 $ 1,710
Accounts Payable............................. 12,184 10,587
Accrued Expenses............................. 7,830 8,075
-------- --------
Total Current Liabilities................ 22,570 20,372
Long-Term Debt............................... 45,132 41,318
Minority Interest and Other
Non-current Liabilities.................... 1,900 1,782
Shareholders' Equity:
Preferred Stock, $.01 par value;
nonvoting; 2,000 shares
authorized; none issued.................. -- --
Common Stock, $.01 par value;
20,000 shares authorized;
8,422 and 8,388 issued and
outstanding in 1996 and 1995,
respectively............................. 84 84
Paid-in Capital............................ 28,606 27,934
Cumulative Translation Adjustment.......... (275) (228)
Accumulated Deficit........................ (12,459) (12,342)
-------- --------
Total Shareholders' Equity............... 15,956 15,448
-------- --------
Total Liabilities and Shareholders'
Equity............................... $ 85,558 $ 78,920
-------- --------
-------- --------
See accompanying notes
- 1 -
<PAGE>
THE MIDDLEBY CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
(IN THOUSANDS)
(UNAUDITED)
THREE MONTHS ENDED NINE MONTHS ENDED
SEPT. 28, SEPT. 30, SEPT. 28, SEPT. 30,
1996 1995 1996 1995
--------- --------- ---------- ---------
Net Sales.................... $31,400 $27,558 $89,571 $78,947
Cost of Sales................ 22,020 19,160 63,080 55,377
------- ------- ------- -------
Gross Profit............... 9,380 8,398 26,491 23,570
Selling and Distribution
Expenses................... 4,796 3,982 13,280 11,613
General and Administrative
Expenses................... 2,371 2,137 6,735 6,040
------- ------- ------- -------
Income from Operations..... 2,213 2,279 6,476 5,917
Interest Expense and Deferred
Financing Costs............ 1,122 982 3,277 3,090
Other (Income) Expense, Net.. (9) 117 132 5
------- ------- ------- -------
Earnings Before Income Taxes. 1,100 1,180 3,067 2,822
Provision for Income Taxes
(See Note 3)............... 408 362 1,069 917
------- ------- ------- -------
Net Earnings from
Continuing Operations.... 692 818 1,998 1,905
------- ------- ------- -------
Discontinued Operations, Net
of Income Tax (See Note 2):
(Loss) Earnings from
Discontinued Operations.. (232) 142 (744) 492
Estimated Loss on Disposal
Including Provision for
Operating Losses During
the Phase-Out Period... (1,371) -- (1,371) --
------- ------- ------- -------
Net (Loss) Earnings....... $ (911) $ 960 $ (117) $ 2,397
------- ------- ------- -------
------- ------- ------- -------
Earnings Per Share from
Continuing Operations..... $ 0.08 $ 0.09 $ 0.24 $ 0.22
(Loss) Earnings Per Share
from Discontinued
Operations................ (0.19) 0.02 (0.25) 0.06
------- ------- ------- -------
Net (Loss) Earnings Per Share $ (0.11) $ 0.11 $ (0.01) $ 0.28
------- ------- ------- -------
------- ------- ------- -------
See accompanying notes
-2-
<PAGE>
THE MIDDLEBY CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(UNAUDITED)
NINE MONTHS ENDED
SEPT. 28, 1996 SEPT. 30, 1995
-------------- --------------
Cash Flows From Operating Activities--
Net (loss) earnings.......................... $ (117) $ 2,397
Adjustments to reconcile net earnings
to cash provided by operating activities--
Depreciation and amortization.............. 1,418 1,496
Utilization of Subsidiary NOL's credited
to paid-in capital (See Note 3)......... 972 753
Discontinued operations.................... 2,830 (2,750)
Changes in assets and liabilities--
Accounts receivable...................... (5,057) (604)
Inventories.............................. (2,742) (1,689)
Prepaid expenses and other assets........ (553) 299
Accounts payable and other liabilities... 1,352 2,050
------- --------
Net Cash (Used in) Provided by Operating
Activities................................. (1,897) 1,952
------- --------
Cash Flows From Investing Activities--
Additions to property and equipment.......... (2,564) (1,427)
Proceeds from sale of investment............. -- 1,337
Discontinued Operations...................... (176) (304)
------- --------
Net Cash Used in Investing Activities........ (2,740) (394)
------- --------
Cash Flows From Financing Activities--
Proceeds from senior secured note............ -- 15,000
Proceeds from credit facility................ -- 31,000
Extinguishment of bank debt.................. -- (44,055)
Increase in revolving credit line, net....... 2,993 243
Other financing activities, net.............. 1,180 (1,734)
Cost of financing activities................. -- (1,717)
Proceeds from capital expenditure loan, net.. 450 --
------- --------
Net Cash Provided by (Used in) Financing
Activities................................. 4,623 (1,263)
------- --------
Changes in Cash and Cash Equivalents--
Net increase (decrease) in cash and cash
equivalents................................ (14) 295
Cash and cash equivalents at beginning of
year....................................... 972 653
------- --------
Cash and cash equivalents at end of
period..................................... $ 958 $ 948
------- --------
------- --------
Interest paid.................................. $ 3,434 $ 2,938
------- --------
------- --------
Income taxes paid.............................. $ 96 $ 286
------- --------
------- --------
See accompanying notes
- 3 -
<PAGE>
THE MIDDLEBY CORPORATION AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 28, 1996
(UNAUDITED)
1) BASIS OF PRESENTATION
The financial statements have been prepared by The Middleby Corporation
(the "Company"), without audit, pursuant to the rules and regulations of
the Securities and Exchange Commission. Certain information and footnote
disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been
condensed or omitted pursuant to such rules and regulations, although the
Company believes that the disclosures are adequate to make the information
not misleading. These financial statements should be read in conjunction
with the financial statements and related notes contained in the Company's
1995 Annual Report. Other than as indicated herein, there have been no
significant changes from the data presented in said Report.
In the opinion of management, the financial statements contain all
adjustments necessary to present fairly the financial position of the
Company as of September 28, 1996 and December 30, 1995, and the results of
operations for the three and nine months ended September 28, 1996 and
September 30, 1995, respectively, and cash flows for the nine months ended
September 28, 1996 and September 30, 1995.
2) DISCONTINUED OPERATION
On November 1, 1996, the Company announced that it had entered into a
letter of intent to sell its Victory Refrigeration Company subsidiary for
approximately $6,500,000, subject to closing date balance sheet
adjustments. The Company has also entered into a sale and leaseback
agreement for its Cherry Hill, New Jersey facility which the Victory
Refrigeration Company occupies. The Company will receive net proceeds of
approximately $4,500,000 from this sale and leaseback transaction and,
pursuant to the November 1, 1996 letter of intent, the purchasers of the
Victory Refrigeration Company assets will assume the lease obligation. Net
proceeds from these transactions will be used to pay down debt.
The results of the Victory Refrigeration Company subsidiary have been
reported separately as a discontinued operation in the consolidated
financial statements for all periods presented. Summarized results of the
Victory Refrigeration Company are as follows:
- 4 -
<PAGE>
<TABLE>
<CAPTION>
(IN THOUSANDS)
THREE MONTHS NINE MONTHS
SEPT. 28, 1996 SEPT. 30, 1995 SEPT. 28, 1996 SEPT. 30, 1995
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Net Sales.................... $ 9,876 $ 7,679 $27,261 $25,843
Costs and Expenses .......... 10,032 7,201 27,719 24,313
------- ------- ------- -------
Operating (Loss) Income...... (156) 478 (458) 1,530
Allocated Interest........... 190 266 653 771
Other Costs.................. -- -- -- 25
------- ------- ------- -------
(Loss) Earnings Before Taxes. (346) 212 (1,111) 734
Provision for Taxes.......... (114) 70 (367) 242
------- ------- ------- -------
(Loss) Earnings from
Discontinued Operations.... (232) 142 (744) 492
Estimated Loss on Disposal
Including Provision for
Operating Losses During
the Phase-Out Period....... (1,371) -- (1,371) --
------- ------- ------- -------
Total (Loss) Earnings
Related to Discontinued
Operations................. $(1,603) $ 142 $(2,115) $ 492
------- ------- ------- -------
------- ------- ------- -------
</TABLE>
Interest expense has been allocated based upon the ratio of the net assets
of the discontinued operations to the consolidated capitalization of the
Company. Continuing operations and discontinued operations reflect the net
tax expense or tax benefit generated by the respective operations, limited
however by the income tax benefit recognized in the Company's historical
financial statements. No general corporate expenses have been allocated to
the discontinued operations.
The results of the discontinued operations are not necessarily indicative
of the results which may have been obtained had the continuing and
discontinuing operations been operating independently.
The net assets of discontinued operations included in the Consolidated
Balance Sheets at September 28, 1996 and September 30, 1995 amounted to
$10,149,000 and $12,803,000 respectively, and consist primarily of
receivables, inventory, and property, plant and equipment related to the
discontinued operations, net of accounts payable, accrued liabilities and
closing costs associated with the sale.
- 5 -
<PAGE>
3) INCOME TAXES
The Company files a consolidated Federal income tax return. In January,
1993, the Company adopted Statement of Financial Accounting Standards No.
109 ("SFAS 109"), Accounting for Income Taxes. SFAS 109 requires the
recognition of deferred tax assets and liabilities for expected future tax
consequences of events that have been recognized in the Company's financial
statements or tax returns. Adoption of SFAS 109 was effected through the
cumulative catch-up method.
The Company has recorded an income tax provision of $1,069,000 for the
fiscal nine months ended September 28, 1996. Although the Company is not a
Federal taxpayer due to its NOL carry-forwards, a tax provision is still
required to be recorded. The majority of the NOL carry-forwards relate to
an old quasi-reorganization and are not recorded as a credit to the tax
provision, but are directly credited to paid-in capital.
The utilization of the net operating loss and credit carry-forwards depend
on future taxable income during the applicable carry-forward periods.
Management evaluates and adjusts the valuation allowance, based on the
Company's expected taxable income, as part of the annual budgeting process.
These adjustments reflect
management's judgment as to the Company's ability to generate taxable
income which will, more likely than not, be sufficient to recognize these
tax assets.
4) EARNINGS PER SHARE
Earnings per share of common stock are based upon the weighted average
number of outstanding shares of common stock, and where required, common
stock equivalents. The treasury stock method used in computing earnings
per share provides that common stock equivalents are excluded when their
effect is anti-dilutive. Consequently, common stock equivalents were
excluded for the quarter and nine months ended September 28, 1996. Earnings
per share were computed based upon common shares outstanding of 8,417,000
and 8,680,000 for the fiscal quarters ended September 28, 1996 and
September 30, 1995, respectively, and 8,406,000 and 8,679,000 for the
fiscal year-to-date periods ended September 28, 1996 and September 30,
1995, respectively.
5) INVENTORIES
Inventories are valued using the first-in, first-out method.
Inventories consist of the following:
(IN THOUSANDS)
SEPT. 28, 1996 DEC. 30, 1995
-------------- -------------
Raw Materials and Parts $10,043 $ 6,337
Work in Process 3,519 4,652
Finished Goods 7,500 7,331
------- -------
$21,062 $18,320
------- -------
------- -------
-6-
<PAGE>
6) ACCRUED EXPENSES
Accrued expenses consist of the following:
(IN THOUSANDS)
SEPT. 28, 1996 DEC. 30, 1995
-------------- -------------
Accrued payroll and
related expenses $2,848 $3,200
Accrued commissions 1,426 1,190
Accrued warranty 1,148 879
Accrued interest 626 636
Other 1,782 2,170
------ ------
$7,830 $8,075
------ ------
------ ------
7) RECLASSIFICATION
Certain amounts have been reclassified in 1995 to be consistent with the
1996 presentation.
- 7 -
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS (UNAUDITED).
INFORMATIONAL NOTE
This report contains forward-looking statements subject to the safe harbor
created by the Private Securities Litigation Reform Act of 1995. The Company
cautions readers that these projections are based upon future results or
events and are highly dependent upon a variety of important factors which
could cause such results or events to differ materially from any
forward-looking statements which may be deemed to have been made in this
report, or which are otherwise made by or on behalf of the Company. Such
factors include, but are not limited to, changing market conditions; the
availability and cost of raw materials; the impact of competitive products and
pricing; the timely development and market acceptance of the Company's
products; foreign exchange risks affecting international sales; and other risks
detailed herein and from time-to-time in the Company's Securities and Exchange
Commission filings. Additionally, there can be no assurance that the proposed
sale of the Victory Refrigeration Company subsidiary will ever be consummated
or will be consummated on the terms described in this report.
RESULTS OF OPERATIONS
CONTINUING OPERATIONS:
Net sales for the quarter ended September 28, 1996 increased by $3,842,000
(13.9%) to $31,400,000 compared to $27,558,000 in the prior year's quarter
ended September 30, 1995. Net sales for the nine month period ended September
28, 1996 increased $10,624,000 (13.5%) to $89,571,000, compared to $78,947,000
in the prior year's nine-month period ended September 30, 1995. The overall
sales increase was largely due to unit volume increases (rather than price
increases). Cooking and warming manufacturing divisions reported a sales
increase of 9%. Conveyor oven sales increased 5% during the quarter. Counter
line cooking and warming equipment increased 22% in the quarter. Sales in the
core cooking and steaming equipment line increased 17% in the quarter.
International sales, including sales of distributed product lines, increased 22%
in the third quarter over the prior year's quarter. International sales
represented 38% of total sales for the quarter as compared to 35% in the 1995
quarter.
Gross profit increased $982,000 (11.7%) to $9,380,000 for the quarter compared
to $8,398,000 in the prior year's quarter. Gross profit for the nine-month
period increased $2,921,000 (12.4%) to $26,491,000 compared to $23,570,000 in
the prior year's nine-month period. This increase in gross profit is consistent
with the overall increase in sales. As a percentage of net sales, gross margin
decreased 0.6% to 29.9% for the quarter compared to 30.5% in the prior year's
quarter. Gross margin for the nine month period decreased 0.3% to 29.6%
compared to 29.9% in the prior nine month period. The decline in gross margin
percentage was primarily related to product mix and operational inefficiencies
associated with the start-up and move to the Company's new Philippine
manufacturing facility.
-8-
<PAGE>
Selling, general and administrative expenses increased $1,048,000 (17.1%) and
$2,362,000 (13.4%) for the three- and nine-month periods, respectively.
Increased expenses reflected the increased sales level as well as promotional
expenses for new products and dealer programs, and expansion of international
sales and service capabilities. As a percentage of sales, selling, general and
administrative expenses increased to 22.9% for the fiscal quarter ended
September 28, 1996, compared to 22.2% for the prior year's quarter, and
decreased to 22.3% for the nine-month period ended September 28, 1996 compared
to 22.4% for the prior year's nine month period.
Interest expense and deferred financing costs for the fiscal quarter ended
September 28, 1996 increased $140,000 (14.3%) compared to the prior year fiscal
quarter and $187,000 (6.1%) year-to-date. The increase was primarily due to
increased amortization of deferred financing costs. In the fourth quarter of
1995, the Company accelerated the amortization of the financing costs associated
with the January 10, 1995 refinancing.
The Company recorded earnings from continuing operations of $692,000 for the
fiscal quarter ended September 28, 1996 compared to $818,000 for the prior year
fiscal quarter. Year-to-date earnings from continuing operations were
$1,998,000 for the nine-month period ended September 28, 1996 compared to net
earnings of $1,905,000 for the nine months ended September 30, 1995.
DISCONTINUED OPERATIONS:
(Loss) earnings from discontinued operations was a $232,000 loss for the quarter
ended September 28, 1996 as compared to earnings of $142,000 in the prior year
quarter ended September 30, 1995. (Loss) earnings from discontinued operations
was a loss of $744,000 for the nine months ended September 28, 1996 as compared
to earnings of $492,000 for the prior nine month period. This decline in
earnings is primarily attributable to product mix, promotional expenses for new
products and dealer programs, and operational inefficiencies. The Company also
recorded an estimated loss on disposal of the Victory Refrigeration Company
subsidiary of $1,371,000. This provision includes an estimate of $902,000 of
operating losses during the phase-out period and certain other costs to complete
the sale of the subsidiary and the building sale and leaseback transactions.
FINANCIAL CONDITION AND LIQUIDITY
For the nine months ended September 28, 1996, net cash provided by operating
activities before changes in assets and liabilities was $5,103,000, as compared
to $1,896,000 for the nine months ended September 30, 1995. Net cash used in
operating activities after changes in assets and liabilities was $1,897,000 as
compared to $1,952,000 provided by operating activities in the prior year-to-
date period. The increase in accounts receivable of $5,057,000 was due to
increased sales level and the timing of cash receipts from certain large
customers. The increase in inventories of $2,742,000 was due to the
introduction of new products, expansion of international manufacturing, and
timing of orders with certain large customers. This increase was partly offset
by increased accounts payable.
-9-
<PAGE>
During the fiscal quarter, the Company decreased its borrowings under its credit
agreements by $2,369,000 primarily by using cash provided by operations. For
the fiscal year-to-date, the Company increased its borrowings by $4,623,000,
principally to finance an increase in accounts receivables, inventories and
capital expenditures related to international expansion. The Company maintains
a revolving credit facility which, as of September 28, 1996 provided $23,921,000
of total borrowing availability. There was $17,993,000 outstanding under this
facility at September 28, 1996. The Company has executed letters of credit of
$632,000 against this facility, leaving an available line of credit of
$5,296,000 at September 28, 1996. Subsequent to the end of the third quarter,
the Company and its lenders, under both the senior secured credit facility and
the senior secured note, agreed to amend certain borrowing covenants to reflect
the impact of the discontinued operations.
The Company believes that its cash flow from operations, together with
available financing and cash on hand, will be sufficient to fund its working
capital needs, capital expenditure program, and debt amortization. Assuming
the successful completion of the sale of the Victory Refrigeration Company
subsidiary and the building sale and leaseback of the Victory Refrigeration
Company facility, the Company will utilize the net proceeds from these
transactions to pay down debt.
-10-
<PAGE>
PART II. OTHER INFORMATION
The Company was not required to report the information pursuant to Items 1
through 6 of Part II of Form 10-Q for any of the three months ended September
28, 1996, except as follows:
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
a) Exhibits - The following Exhibits are filed herewith:
Exhibit (10) (iii) (j) - Agreement of Purchase and Sale of the
Company's Cherry Hill, New Jersey
Facility, with attached lease.
Exhibit (27) - Financial Data Schedules (EDGAR only)
b) Reports on Form 8-K: None.
- 11 -
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
THE MIDDLEBY CORPORATION
------------------------
(Registrant)
Date November 12, 1996 By: /s/ John J. Hastings
------------------ ---------------------------
John J. Hastings, Executive
Vice President, Chief
Financial Officer and
Secretary
(Principal Financial and
Accounting Officer)
- 12 -
<PAGE>
10/23/96 AGREEMENT OF PURCHASE AND SALE
Vineland Construction Co., a New Jersey corporation, or its nominee,
hereinafter referred to as "Purchaser", agrees to purchase, and Victory
Refrigeration Company, a Delaware corporation, hereinafter referred to as
"Seller", agrees to sell that real property of approximately thirty five (35)
acres, hereinafter referred to as the "Property", commonly known as 110
Woodcrest Road, of Cherry Hill, New Jersey, and legally described on the
attached Exhibit A, together with all rights, privileges, easements and
appurtenances thereto and improvements thereon, excluding all trade fixtures,
manufacturing and office equipment, furniture, furnishings and personal
property, located at the Property (such excluded property called collectively,
the "Excluded Items").
1. PURCHASE PRICE. The Purchase Price for the Property shall be Four
Million Eight Hundred Thousand and 00/100 Dollars ($4,800,000.00), payable by
certified check or wire transfer of funds at Closing, less the Deposit, as
defined in Paragraph 2 herein.
2. DEPOSIT. On or before the expiration of the Review Period, as
hereinafter defined, Purchaser shall deposit the amount of Seventy Five Thousand
and 00/100 Dollars ($75,000.00) (the "Deposit") with Peoples Title Agency, Inc.
(agent of Chicago Title Insurance Company) ("Escrow Holder"), to secure
Purchaser's performance hereunder. The Deposit shall be nonrefundable to
Purchaser, but shall be applicable to the Purchase Price at Closing. Interest
on the Deposit shall belong to the party who is entitled to the Deposit
hereunder. Escrow Holder shall credit the Deposit to Purchaser upon recordation
of the deed or upon other evidence that the purchase and sale contemplated
herein has closed, without the necessity of any further instructions or
authorizations from Seller. If Purchaser and Seller jointly instruct Escrow
Holder to deliver the Deposit, Escrow Holder shall comply with such direction.
If Purchaser or Seller instructs Escrow Holder to deliver the Deposit, then
Escrow Holder shall notify the other party of such demand, and, unless Escrow
Holder receives within seven (7) days of the date of Escrow Holder's notice an
affidavit from such other party stating that there is a genuine dispute as to
which party is entitled to the proceeds of the Deposit, Escrow Holder shall
deliver the Deposit in accordance with the demand. If Escrow Holder does timely
receive such an affidavit, then Escrow Holder shall hold the Deposit in escrow
in an interest bearing account until the dispute as to which party is entitled
to the proceeds of the Deposit is resolved.
3. REVIEW OF PROPERTY.
3.1. Upon its execution of this Agreement, Seller shall:
(a) Deliver to Purchaser copies of any architectural or
engineering drawings and geotechnical and environmental tests relating
to the Property which are in Seller's possession.
<PAGE>
(b) Provide Purchaser and its agents or consultants with access
to the Property to inspect each and every part thereof to determine
its present condition causing architectural, engineering,
geotechnical, environmental and other tests, studies and analyses to
be made at Purchaser's own cost and at Purchaser's own risk.
(c) Deliver to Purchaser copies of any surveys, title reports
and other documents relating to the condition of or affecting the
Property in Seller's files (excluding confidential materials).
Purchaser shall have until 5:00 p.m. October 24, 1996 (the "Review
Period") to determine in its sole discretion whether the Property supports
the proposed purchase price. If Purchaser shall conclude that such is the
case and so notifies Seller or fails to notify Seller that such is the case
by the aforementioned date, this Agreement shall continue in full force and
effect and Purchaser shall be deemed to have waived this condition and
shall deliver the Deposit to the Escrow Holder. If Purchaser shall
conclude that such is not the case, Purchaser shall so notify Seller prior
to the expiration of the aforementioned period, and this Agreement shall
terminate without liability on the part of Seller or Purchaser.
3.2. In connection with any entry by Purchaser, or its agents,
employees or contractors onto the Property, Purchaser shall give Seller
reasonable advance notice of such entry and shall conduct such entry and
any inspections in connection therewith so as to minimize, to the greatest
extent possible, interference with Seller's business and the business of
Seller's tenants and otherwise in a manner reasonably acceptable to Seller.
Without limiting the foregoing, prior to any entry to perform any on-site
testing, Purchaser shall give Seller written notice thereof, including the
identity of the company or persons who will perform such testing and the
proposed scope of the testing. Seller shall approve or disapprove the
proposed testing after receipt of such notice. If Purchaser or its agents,
employees or contractors take any sample from the Property in connection
with any such approved testing, Purchaser shall, at Seller's request,
provide to Seller a portion of such sample being tested to allow Seller, if
it so chooses, to perform its own testing. Seller or its representative
may be present to observe any testing or other inspection performed on the
Property. Purchaser shall, at Seller's request, promptly deliver to Seller
copies of any reports relating to any testing or other inspection of the
Property performed by Purchaser or its agents, employees or contractors.
Purchaser shall maintain, and shall assure that its contractors maintain
public liability and property damage insurance in amounts and in form and
substance adequate to insure against all liability of Purchaser, its
agents, employees or contractors, arising out of any entry or inspections
of the Property pursuant to the provisions hereof, and Purchaser shall
provide Seller with evidence of such insurance coverage upon request by
Seller. Purchaser shall indemnify and hold Seller harmless from and
against any costs, damages, liabilities, losses, expenses, liens or claims
(including, without limitation, reasonable attorney's fees) arising out of
or relating to any entry on the Property by Purchaser, its agents,
employees or contractors in the course of performing the inspections,
testings or inquiries provided for in this Agreement, and shall restore the
Property to its
2
<PAGE>
original state after testing. The foregoing indemnity shall survive beyond
the Closing, or if the sale is not consummated, beyond the termination of
this Agreement.
4. TITLE; SURVEY.
4.1. Purchaser shall order a preliminary commitment for an ALTA Form B
owner's title insurance policy (the "Title Commitment") in the amount of
the Purchase Price, from a title company licensed to transact business in
the State of New Jersey (the "Title Company"), with respect to the
Property. The Title Commitment shall identify the Property by the legal
description set forth in the Survey, as hereinafter defined, provided that
if the Survey has not been prepared at the time the Title Commitment is
ordered, by a preliminary legal description. When the exact legal
description of the Property is determined, the Title Commitment shall be
revised to include only said legal description. On or prior to the
expiration of the Review Period, Purchaser may notify Seller in writing of
any objection Purchaser may have to any exceptions reported in the title
report or matter shown on the survey for the Property. Seller shall notify
Purchaser, in writing within ten (10) business days after receipt of
Purchaser's notice, whether Seller intends to remove or insure over any
exception to which Purchaser objects, or whether Seller is unwilling or
unable to do so. Any exception that Seller does not agree to remove or
insure over shall be a permitted exception unless Purchaser repeats its
objection within seven (7) days after receipt of Seller's response, and
notifies Seller that Purchaser desires to terminate this Agreement. If,
prior to Closing, Seller is unable to remove any unpermitted exceptions to
title or survey matters previously objected to, after using reasonable
efforts to do so, and Purchaser is unwilling to take title subject thereto,
then Purchaser may terminate this Agreement, and each party shall be
released from all duties and obligations contained herein.
4.2. Purchaser shall cause to be made a survey of the Property
(the "Survey"). The Survey shall consist of a boundary survey of the
Property prepared by a surveyor duly registered in the state in which the
Property is located. Unless the Title Company raises any title exceptions
related to the legal description shown on the Survey, the description of
the Property as reflected in the Survey shall be substituted for the
description set forth in Exhibit A, if different, and shall be the legal
description contained in the deed to be delivered by Seller to Purchaser at
Closing.
5. REPRESENTATIONS AND WARRANTIES.
5.1. As used in this Section 5.1, the phrase "to the knowledge,
information and belief of Seller" shall mean and be limited to the actual
knowledge, information and belief of any employee of Seller of the level of
plant manager or higher. Seller hereby warrants and represents to
Purchaser as follows:
3
<PAGE>
(a) That Seller has good and marketable fee simple title to the
Property, free and clear of liens (other than liens which will be
removed at Closing), encumbrances, judgments and tenancies, but
subject to any easements and rights of ways as shown in the Survey or
Title Commitment.
(b) That Seller is not a "foreign person" within the meaning of
Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended
(the "Code"), and that Seller will furnished to Purchaser, prior to
Closing, an affidavit in form satisfactory to Purchaser confirming the
same.
(c) To Seller's knowledge, information and belief, except as set
forth in the Phase I Environmental Assessment dated December 14, 1994,
prepared by Clayton Environmental Consultants (the "Environmental
Report"), no toxic or hazardous materials, chemicals, wastes,
pollutants or similar substances (including, but not limited to,
petroleum, asbestos insulation, urea formaldehyde insulation, and any
other materials or substances defined as "hazardous substances",
"hazardous materials", "toxic substances" or "pollutants" in
applicable law or regulation) have been, are or will be, prior to
Closing, stored, treated, disposed of or incorporated into, on or
around the Property by Seller or Seller's employees or agents in
violation of any applicable law or regulation. In the event of a
spill or mishandling of the same, by Seller or Seller's employees or
agents, between the date hereof and the Closing, Seller will be liable
for all costs incurred in connection with the clean-up, remediation
and restoration of the Property required by any governmental agency
and will indemnify and hold Purchaser harmless.
(d) That this Agreement has been, and all the documents to be
delivered by Seller to Purchaser at Closing will be, duly authorized,
executed and delivered by Seller and are or will be legal, valid and
binding obligations of Seller.
The warranty set forth in first sentence of this Section 5.1(c) shall
survive the Closing for a period of two (2) years. All other
warranties and representations shall terminate at Closing unless
provided otherwise herein.
5.2. Purchaser hereby represents and warrants to Seller that this
Agreement has been, and all the documents to be delivered by Purchaser to
Seller at Closing will be, duly authorized, executed and delivered by
Purchaser and are or will be legal, valid and binding obligations of
Purchaser. Subject to Section 5.1(c), Purchaser acknowledges that it has
performed any architectural, engineering, geotechnical, environmental and
other tests, studies and analyses it deems necessary or prudent to
determine the present condition of the Property, and is satisfied with the
results of its investigations and testing except as follows: on or before
November 29, 1996, Seller shall at its expense, retain the services of a
consultant to collect and analyze the soil sample specified in the first
indented paragraph on page 17 of the Environmental Report. Prior to having
the above work performed, a summary of the scope of the testing shall be
delivered to Purchaser. Within seven (7) days of the
4
<PAGE>
receipt of a report analyzing the soil condition, Purchaser shall notify
Seller whether or not Purchaser is satisfied with the soil condition or
Purchaser shall be deemed to have accepted the report and the soil
condition. If Purchaser notifies Seller that Purchaser is not satisfied
with the soil condition within the specified period, the Deposit shall
be returned to Purchaser; provided however, if the consultant's
estimated cost to remediate the problem specified in the report is less
than Twenty Five Thousand Dollars ($25,000.00), Purchaser may not elect
to terminate the Agreement or receive a return of the Deposit, and Seller
shall remediate the problem as recommended in the report within twelve
(12) months from the Closing, which Closing shall not be delayed from the
originally scheduled date. The obligation to remediate shall survive
the Closing, and Seller shall deposit the amount of money specified in
the report with the Title Company or other escrowee agreeable to
Purchaser and Seller. If the remediation cost exceeds Twenty Five
Thousand Dollars ($25,000.00), and Purchaser elects to terminate this
Agreement, Seller may nevertheless elect, at its sole option, to
override Purchaser's election to terminate the Agreement and
perform the suggested remediation within the above time frame.
5.3. The continued accuracy in all respects of the aforesaid
representations and warranties shall be a condition precedent to
Purchaser's or Seller's, respectively, obligation to close. All
representations and warranties contained in this Agreement shall be deemed
remade as of the date of Closing and shall survive the Closing for a period
of one year. If any of Seller's representations and warranties shall not
be correct at the time the same is made or as of the Closing, Purchaser may
terminate this Agreement and there shall be no further liability on the
part of Purchaser to Seller. If any of Purchaser's representations and
warranties shall not be correct at the time the same is made or as of the
Closing, Seller may terminate this Agreement and there shall be no further
liability on the part of Seller to Purchaser.
5.4. Prior to Closing, Seller shall have performed minor roof repairs
on the portion of the roof which has not been replaced in the past five (5)
years, provided however Seller need not spend in excess of Sixteen Thousand
Five Hundred Dollars ($16,500.00) on such repairs in the aggregate. In
addition, Seller shall have removed asbestos containing floor tile which is
currently deemed by Purchaser's environmental consultant not to be in good
condition, which is located in the bench assembly area identified by
Purchaser's environmental consultant and which is estimated to cost Twelve
Hundred Dollars ($1200.00) to remove and dispose of properly; provided
however that Seller need not spend in excess of Twelve Hundred Dollars
($1200.00) to remove and properly dispose of the tile. Other than as
specifically set forth herein, Seller has not made and does not hereby make
any representations, warranties or other statements as to the condition of
the Property and Purchaser acknowledges that at Closing it is purchasing
the Property on an "as is" basis and without relying on any representations
and warranties of any kind whatsoever, express or implied, from Seller, its
agents or brokers as to any matters concerning the Property.
5
<PAGE>
6. CLOSING.
6.1. The purchase and sale contemplated herein shall close (herein
referred to as the "Closing") at the office of the Escrow Holder on
December 16, 1996 or such earlier date as agreed to between Seller and
Purchaser, by delivery to Purchaser of a bargain sale deed with covenants
against grantor's acts and payment of the purchase price to Seller. The
sale (payment of purchase price and delivery of deed) may, at Purchaser's
option, be closed through escrow with the Escrow Holder in accordance with
the general provisions of the usual form of escrow agreement used in
similar transactions by such holder with special provisions inserted as may
be required to conform with this Agreement. Seller may extend the Closing
if, after using reasonable efforts, it has not obtained the documents
specified in Section 6.4 herein by the scheduled Closing, but in no event
shall the Closing be delayed beyond May 15, 1997.
6.2. Pursuant to Paragraph 7 hereof, Seller shall lease the Property
from Purchaser after Closing. Therefore, there shall be no proration of
taxes or operating or other expenses of the Property until expiration, or
earlier termination of the Lease.
6.3. All title (including, without limitation, search and examination
fees and insurance premiums), escrow, survey costs, and recording fees
shall be paid by Purchaser. Any transfer tax or other fees shall be paid
in accordance with local custom.
6.4. At Closing, Seller shall have obtained and furnished to Purchaser
any and all environmental approvals or clearances required in connection
with Seller's disposition of the Property from the New Jersey Department of
Environmental Protection.
7. LEASE. At Closing, Seller, as tenant, and Purchaser, as landlord,
shall enter into a triple net lease in the form of Exhibit B, attached hereto
and made a part hereof, execution of which is a condition of Closing.
8. MISCELLANEOUS.
8.1. This Agreement can be amended only in writing and supersedes any
and all agreements between the parties hereto regarding the acquisition of
the Property by Purchaser which are prior in time to this Agreement.
8.2. If the improvements on the Property are destroyed or materially
damaged, or if condemnation proceedings are commenced against the Property,
between the date hereof and the Closing, either party may terminate this
Agreement by written notice to the other party delivered within thirty (30)
days of the destruction damage or notification of the institution of
condemnation proceedings. If neither party elects to terminate the
Agreement, all proceeds of insurance payable to Seller by reason of such
damage shall be used to restore the improvements and the condemnation award
shall be assigned to Purchaser. In the event of non-material damage to the
Property, which damage Seller is unwilling to repair prior to
6
<PAGE>
Closing, Purchaser shall have the right either to terminate this Agreement
or accept the Property in its then condition.
8.3. It is understood that Seller is acting as a principal and that
Seller is not participating in any commission in connection with this
transaction and has no fiduciary obligation to Purchaser.
8.4. Time is of the essence of this Agreement.
8.5. All tenders and notices required hereunder shall be made and
given in writing to either of the parties hereto at their respective
addresses herein set forth and shall be effective as of the date of
personal delivery, mailing by U.S. certified mail, return receipt
requested, or delivery to a private contract carrier that assures same or
next day delivery and provides a receipt, as the case may be.
8.6. The parties agree to execute such instructions to the Escrow
Holder and such other instruments as may be reasonably necessary to carry
out the provisions of this Agreement.
8.7. This Agreement shall be binding upon and inure to the benefit of
the heirs, successors, and assigns of the parties hereto, provided
Purchaser may not assign its rights or obligations hereunder without the
prior written consent of Seller.
8.8. The performance and interpretation of this Agreement shall be
controlled by the law of the State of New Jersey.
8.9. Seller and Purchaser each (a) represents and warrants to the
other that it has not dealt with any broker or finder in connection with
the transaction contemplated by this Agreement other than Jones Lang and
Wootton USA ("Broker"), and (b) agrees to indemnify and hold the other
harmless from and against any losses, damages, costs or expenses (including
attorney's fees and costs) incurred by such other party due to a breach of
the foregoing warranty by the indemnifying party.
8.10. If any action is brought by either party against the other
party, the prevailing party shall be entitled to recover court costs
incurred and reasonable attorney's fees and costs.
8.11. IF SELLER DEFAULTS HEREUNDER, PURCHASER MAY TERMINATE THIS
AGREEMENT OR MAY ENFORCE SPECIFIC PERFORMANCE OF THIS AGREEMENT AS ITS SOLE
REMEDY. IF SAID SALE IS NOT CONSUMMATED BECAUSE OF A DEFAULT UNDER THIS
AGREEMENT SOLELY ON THE PART OF PURCHASER, THE DEPOSIT SHALL BE PAID TO AND
RETAINED BY SELLER AS LIQUIDATED DAMAGES. THE PARTIES HAVE AGREED THAT
SELLER'S ACTUAL DAMAGE, IN THE EVENT OF SUCH A
7
<PAGE>
DEFAULT BY PURCHASER, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO
DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES
ACKNOWLEDGE THAT THE DEPOSIT HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS
THE PARTIES' REASONABLE ESTIMATE OF SELLER'S DAMAGES AND AS SELLER'S
EXCLUSIVE REMEDY AGAINST PURCHASER, AT LAW OR IN EQUITY, IN THE EVENT OF
SUCH A DEFAULT UNDER THIS AGREEMENT SOLELY ON THE PART OF PURCHASER.
INITIALS: SELLER: ______ PURCHASER: ______
8.12. If Purchaser rightfully terminates this Agreement pursuant
to the provisions of Paragraphs 3, 4, 5.3, 8.2 or 8.11, or pursuant to any
other right of Purchaser to terminate hereunder, Purchaser may, without
limiting any other rights or remedies of Purchaser, obtain the return of
the Deposit, and Seller shall have no right thereto.
8.13. The Seller agrees to pay a commission for services rendered
in effecting the sale, payable only if the Closing occurs, to Broker.
8.14. Seller shall have until November 1, 1996 to obtain approval
of this transaction by its Board of Directors and by any lienholder having
approval rights concerning the sale of the Property. If such approval is
not obtained, and Seller notifies Purchaser within an additional three (3)
business day period, this Agreement shall terminate without liability on
the part of Seller or Purchaser except that Seller shall reimburse
Purchaser for Purchaser's actual out-of-pocket expenses upon presentment of
evidence thereof, not to exceed Ten Thousand and 00/100 Dollars
($10,000.00); otherwise, this Agreement shall continue in full force and
effect, and Seller shall be deemed to have waived this provision.
8.15. Seller agrees to cooperate with Purchaser in structuring the
transaction in the form of a tax-free exchange so long as such structure
does not delay or defer full payment of the Purchase Price at Closing or
result in any additional expense to Seller. Seller has no obligation to
seek out or designate exchange property, nor shall Seller be required to
take legal title to any other real estate or assume any liability under any
third party contract. Purchaser shall indemnify, defend and hold Seller
harmless from and against any damages, costs, penalties, claims,
liabilities, judgments or expenses Seller may incur by reason of Seller's
cooperation with Purchaser's exchange, including, without limitation,
reasonable attorney's fees, court costs and broker's or finder's fees.
Purchaser shall reimburse Seller for Seller's reasonable attorney's fees
and costs incurred in connection with reviewing documents and otherwise
cooperating with Purchaser in connection with the exchange.
8
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the dates set forth below.
SELLER: PURCHASER:
VICTORY REFRIGERATION COMPANY VINELAND CONSTRUCTION CO.
By: ______________________________ By: ______________________________
Its: ______________________________ Its: ______________________________
Date: ____________________, 1996 Date: ___________________, 1996
Address: Address:
110 Woodcrest Road 71 West Park Avenue
Cherry Hill, New Jersey 08003 Vineland, New Jersey 08360
9
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
<PAGE>
10/23/96
EXHIBIT B
LEASE AGREEMENT BETWEEN
VINELAND CONSTRUCTION CO.,
AS LANDLORD
AND
VICTORY REFRIGERATION COMPANY,
AS TENANT
<PAGE>
TABLE OF CONTENTS
ARTICLE 1 BASIC LEASE TERMS . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3 PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 4 LEASE TERM . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 5 OPTION PERIODS . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 6 MINIMUM RENT. . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 7 USES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 8 REAL ESTATE TAXES . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 9 FIRE INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 10 TENANT'S LIABILITY INSURANCE. . . . . . . . . . . . . . . . . . 6
ARTICLE 11 WAIVER OF SUBROGATION . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 12 MAINTENANCE AND REPAIR BY TENANT. . . . . . . . . . . . . . . . 6
ARTICLE 13 MAINTENANCE AND REPAIR BY LANDLORD. . . . . . . . . . . . . . . 7
ARTICLE 14 ALTERATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 15 UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 16 CASUALTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE 17 CONDEMNATION. . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 18 QUIET ENJOYMENT; NON-DISTURBANCE; ESTOPPEL STATEMENT. . . . . . 9
ARTICLE 19 TENANT DEFAULT. . . . . . . . . . . . . . . . . . . . . . . . .10
ARTICLE 20 LANDLORD DEFAULT. . . . . . . . . . . . . . . . . . . . . . . .11
ARTICLE 21 ATTORNEYS' FEES . . . . . . . . . . . . . . . . . . . . . . . .12
ARTICLE 22 ASSIGNMENT AND SUBLETTING PERMITTED . . . . . . . . . . . . . .12
ARTICLE 23 UNTENANTABILITY AND ENTRY . . . . . . . . . . . . . . . . . . .13
ARTICLE 24 SUCCESSORS IN INTEREST. . . . . . . . . . . . . . . . . . . . .13
ARTICLE 25 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
ARTICLE 26 MEMORANDUM OF LEASE . . . . . . . . . . . . . . . . . . . . . .14
ARTICLE 27 GENERAL CONDITIONS. . . . . . . . . . . . . . . . . . . . . . .14
ARTICLE 28 SECURITY DEPOSIT. . . . . . . . . . . . . . . . . . . . . . . .16
Exhibits:
EXHIBIT A REAL ESTATE LEGAL DESCRIPTION. . . . . . . . . . . . . . . . . .17
EXHIBIT B MEMORANDUM OF LEASE. . . . . . . . . . . . . . . . . . . . . . .18
<PAGE>
THIS LEASE (the "Lease") dated this _____ day of ________________, 1996, is
between Landlord and Tenant who are designated in Section 1.2 hereof.
ARTICLE 1
BASIC LEASE TERMS
1.1. COMMON ADDRESS LOCATION. 110 Woodcrest Road, Cherry Hill, New Jersey
08002.
1.2. PARTIES & NOTICE.
(a) Landlord: Vineland Construction Co.
71 West Park Avenue
Vineland, New Jersey 08360
(b) Tenant: Victory Refrigeration Company
110 Woodcrest Road
Cherry Hill, New Jersey 08003
1.3. SIZE OF BUILDING. The building is approximately 228,640 square feet
in size.
1.4. TERM. The initial Term of this Lease shall commence on the
Commencement Date and shall expire ("Initial Term Expiration Date") two (2)
years later, on ________________________.
1.5. OPTIONS. Twelve (12) additional one (1) month periods, the first of
such periods commencing, if at all, on the day following the Initial Term
Expiration Date.
1.6. ANNUAL RENT. Beginning on the Commencement Date and continuing
through the Initial Term Expiration Date, Six Hundred Twenty Eight Thousand
Seven Hundred Sixty and 00/100 Dollars ($628,760.00) per year.
1.7. MONTHLY INSTALLMENT OF RENT.
(a) One twelfth (1/12) of the Annual Minimum Rent payable from time
to time, or Fifty Two Thousand Three Hundred Ninety Six and 67/100 Dollars
($52,396.67).
(b) During the monthly option periods, the monthly rent shall be
Thirty Thousand and 00/100 Dollars ($30,000.00).
<PAGE>
ARTICLE 2
DEFINITIONS
The terms defined in this Article 2 shall for all purposes of this Lease
and all agreements supplemental hereto have the meanings herein specified unless
expressly stated otherwise.
2.1. BUILDING. That industrial building located on the Real Estate
containing the Leasable Floor Area specified in Section 1.3 hereof.
2.2. COMMENCEMENT DATE. __________________________.
2.3. CURE RATE. An annual interest rate equal to the "prime rate" or
"corporate base rate" announced from time to time by American National Bank and
Trust Company of Chicago, or if that rate is unavailable, the Wall Street
Journal prime rate, in either event plus two percent (2%), but in no event in
excess of the maximum rate of interest permitted by applicable law.
2.4. INITIAL TERM EXPIRATION DATE. Defined in Section 1.4.
2.5. MINIMUM RENT. The annual amounts specified in Section 1.6, and
payable in monthly installments pursuant to Sections 1.7 and 6.1.
2.6. REAL ESTATE. That certain real estate with all improvements therein
and appurtenances thereto, located as set forth in Section 1.1 hereof, which
land is described with particularity in Exhibit A, including the Building, all
parking areas, driveways, loading docks and landscaped areas.
ARTICLE 3
PREMISES
Landlord hereby leases to the Tenant and the Tenant hires from the
Landlord, the Real Estate, together with the Building and all other improvements
and appurtenances.
ARTICLE 4
LEASE TERM
The Term of this Lease shall commence on the Commencement Date and shall
expire on the Initial Term Expiration Date specified in Section 1.4, subject to
the Tenant options to extend the Term as provided in the following Article 5.
2
<PAGE>
ARTICLE 5
OPTION PERIODS
The Tenant may extend the original Term of this Lease for the number of
separate, consecutive additional periods as designed in Section 1.5 hereof, on
the terms and conditions set forth herein, except that the number of option
periods remaining to be exercised under Section 1.5 shall, in each case, be
reduced by one, by notifying the Landlord, in writing, not less than six (6)
months prior to the expiration of the original term, or each extended term, as
the case may be. Tenant may exercise its option for more than one (1) period at
a time, as long as the minimum advance notice is provided.
ARTICLE 6
MINIMUM RENT
6.1. PAYMENT OF MINIMUM RENT. During the Term of this Lease, the Tenant
shall pay Minimum Rent to the Landlord as specified in Section 1.6, by monthly
payments in the amount of the Monthly Installment of Rent specified in Section
1.7. Each Monthly Installment of Rent shall be payable in advance, without
offset (except as specifically provided for in this Lease) or demand, on or
before the first (1st) day of each calendar month during the Term. If the Lease
commences other than on the first (1st) day of a calendar month, the first (1st)
month's Monthly Installment of Rent shall be prorated accordingly and paid with
the Monthly Installment of Rent for the first full month. All Monthly
Installments of Rent and other payments to be made by Tenant to Landlord shall
be sent to the place to which notices are required to be sent, unless otherwise
directed by the Landlord in writing.
6.2. NET LEASE. This Lease is what is commonly called a "Net Lease", it
being understood that, except as otherwise specified in this Lease, Landlord
shall receive the rent specified in Section 1.6 free and clear of any and all
other impositions, taxes, liens, charges or expenses of any nature whatsoever in
connection with the ownership and operation of the Building.
ARTICLE 7
USES
7.1. PERMITTED USE. The Building may be used and occupied for
manufacturing, storage and office purposes.
3
<PAGE>
7.2. NO CONTINUOUS USE. Notwithstanding any other provision of this Lease
to the contrary, Tenant does not covenant or agree to any obligation to
continuously use or operate the Building during the Term, and nothing in this
Lease shall be deemed to impose any obligation of continuous use or operation on
Tenant.
7.3. EARLY TERMINATION. During the term of this Lease, Tenant shall have
the right and option to terminate the Lease prior to the Initial Term Expiration
Date (but not before the expiration of the first year of the Term) by providing
Landlord with at least six (6) months written notice prior to the new
termination date and shall specify such date (the "Early Termination Date").
The exercise of the early termination option shall be effective to terminate the
renewal options specified above. On or prior to the Early Termination Date,
Tenant shall pay to Landlord a termination fee computed by multiplying Thirty
Five Thousand and 00/100 Dollars ($35,000.00) by the number of months the
Initial Term is shortened (prorated for any partial month reduction).
ARTICLE 8
REAL ESTATE TAXES
8.1. PAYMENT OF REAL ESTATE TAXES.
(a) Tenant shall pay, on or before the due date, all taxes and
assessments levied against the Building or the real property of which the
Building forms a part, including land. Landlord shall cooperate with
Tenant in directing all tax bills to be sent direct to Tenant. If Landlord
receives any such bills, it shall promptly forward them to Tenant so that
Tenant receives them no less than twenty (20) days prior to the due date.
In the event of assessments which may be paid in installments by reason of
bonding or otherwise, Tenant may elect to make payment under the
installment plan. For purposes of this Article 8, "taxes and assessments"
payable by Tenant hereunder includes: (i) any fee, license fee, license
tax, business license fee, commercial rental tax, levy, charge, assessment,
penalty or tax imposed by any taxing authority against the Real Estate;
(ii) any tax on the Landlord's right to receive, or the receipt of, rent or
income from the Real Estate or against Landlord's business of leasing the
Real Estate, including a gross receipts tax or business taxes based on
gross receipts; (iii) any tax or charge for fire protection, streets,
sidewalks, road maintenance, refuse or other services provided to the Real
Estate by any governmental agency; (iv) any charge or fee replacing any tax
previously included within the definition of real property tax; and (v) all
personal property taxes assessed against any personal property located on
the Real Estate.
(b) Should the Tenant be in occupancy during only a portion of the
final calendar year, Tenant shall be responsible to Landlord for a pro rata
portion of its tax obligation as described herein, based on the portion of
such taxes due and payable in said final year.
4
<PAGE>
8.2. EXCLUSIONS. Tenant shall have no responsibility for any of the
following, which shall be the sole responsibility of Landlord: income, excess
profits, estate, single business, inheritance, succession, transfer, franchise,
capital or other tax or assessment upon Landlord or the rentals payable under
this Lease.
8.3. REBATES. Any rebates, refunds or abatements of real estate taxes
received by the Landlord subsequent to payment of taxes by the Tenant which
relate to periods of Tenant's occupancy, shall be immediately refunded to
Tenant.
8.4. CONTEST. Tenant shall have such rights to contest the validity or
amount of real estate taxes or assessments as are permitted by law, either in
its own name or in the name of the Landlord, in either case with the Landlord's
full cooperation, so long as Tenant either pays any contested taxes under
protest or otherwise provides reasonable security against any foreclosure or tax
sale resulting from the failure to pay such taxes. Tenant shall indemnify and
hold Landlord harmless from any liability or loss resulting from Tenant's
failure to pay any taxes or assessments payable by Tenant hereunder. The term
"contest" as used in this section means contest, appeal, abatement or other
proceeding prescribed by applicable law to obtain tax reduction or tax refund,
howsoever denominated.
ARTICLE 9
FIRE INSURANCE
9.1. POLICY TO BE MAINTAINED. Tenant will maintain at all times during the
Term a policy insuring against damage to any portion of the Building (including,
but not limited to, theft, vandalism or malicious mischief perpetrated by any
person, including, without limitation, any servant, employee, agent, contractor
or representative of Tenant). Such building insurance shall be for one hundred
percent (100%) of the replacement value, without deduction for physical
depreciation and shall provide that the proceeds of any loss shall be payable in
the manner provided for in this Lease. Tenant shall, upon request of Landlord
(not more frequently than annually), provide Landlord with a certification of
such insurance coverage from an insurer licensed to do business within the state
in which the Building is located, which shall name Landlord as an additional
insured under the policy. Tenant shall also reimburse Landlord for Landlord's
procurement of "loss rental" insurance, in an amount not to exceed Seven Hundred
Fifty Dollars ($750.00) of premium expense per lease year. Said annual premium
payment shall be paid annually upon billing by Landlord and presentment of
evidence of such insurance. In the event of the early termination of the Lease,
should Landlord receive any refund of the premium for such insurance, the refund
shall be given to Tenant.
9.2. PROCEEDS OF INSURANCE. All insurance proceeds for damage or
destruction to the Building shall be paid directly to the party entitled to the
proceeds under, and for use as provided in Article 16.
5
<PAGE>
ARTICLE 10
TENANT'S LIABILITY INSURANCE
Tenant shall at all times during the Term keep in force a policy or
policies of public liability insurance, or an endorsement on a blanket liability
insurance policy or policies, against claims for personal injuries, death or
property damage, occurring on, in or about the Building, or in or about any
sidewalks, or otherwise in or about the Real Estate, with a combined single
limit of not less than Two Million and 00/100 Dollars ($2,000,000.00), in
respect of personal injury or death to any one or more persons arising out of
any one or more occurrence and for injury to or destruction of property, which
policy or policies shall name Landlord as an additional insured.
ARTICLE 11
WAIVER OF SUBROGATION
Tenant and Landlord hereby waive and release any and all right of recovery
against the other, including employees and agents, arising during the Term for
any and all loss or damage to any property located within or constituting a part
of the Real Estate. This mutual waiver is in addition to any other waiver or
release contained in this Lease. Landlord and Tenant shall give written notice
to its insurers of the provisions of this waiver and release and have its
insurance policies endorsed, if required, to prevent invalidation of insurance
coverage by reason of this waiver and release.
ARTICLE 12
MAINTENANCE AND REPAIR BY TENANT
Tenant shall have no liability for any Building or common area replacement
costs and shall only perform normal routine maintenance and repair of a minor or
incidental nature to the Building and normal routine maintenance of a minor or
incidental nature to the common area. Landlord acknowledges that except as set
forth above, Tenant shall surrender the Building and the Real Estate in an "as
is" condition at the end of the Term. Notwithstanding the above, on or before
the expiration of the Lease, Tenant shall remove its trade fixtures,
manufacturing and manufacturing related and office equipment and related visible
electrical feeders from main panels to such equipment (which does not require
intrusion into any closed walls, under floors or ceilings), furniture,
furnishings, inventory and personal property, and shall leave the Building and
grounds free of unreasonable debris caused by Tenant's vacation of the Building.
Tenant shall cause all storage of drums containing any materials specified in
Section 27.13 herein to be centrally located and stored in the location which
has secondary containment and is under roof, and shall remove all such drums
from the Premises, at Tenant's cost, on or prior to the termination of this
Lease.
6
<PAGE>
ARTICLE 13
MAINTENANCE AND REPAIR BY LANDLORD
Landlord shall have no liability whatsoever for any Building or common area
maintenance, repair and replacement costs, except Landlord shall repair any
damage or defects caused by the negligence or wilful act of the Landlord, its
agents or contractors.
ARTICLE 14
ALTERATIONS
Landlord's consent (which shall not be unreasonably withheld or delayed)
shall be obtained prior to Tenant making any alterations, additions and
improvements to the Building and Real Estate. Notwithstanding the above, Tenant
may perform up to Fifty Thousand Dollars ($50,000.00) of alterations, additions
and improvements, at Tenant's cost, without Landlord's consent. Any work must
be performed in a good and workmanlike manner, in conformity with all law,
ordinances and regulations of public authorities having jurisdiction, and free
of liens.
ARTICLE 15
UTILITIES
Tenant agrees to pay all use charges for all utilities serving the Building
during the Term.
ARTICLE 16
CASUALTY
16.1. DAMAGE, DESTRUCTION, OBLIGATION TO REBUILD. If during the Term
of the Lease, the Building is totally or substantially damaged or destroyed by
any cause other than Tenant's negligence, Tenant shall have no duty to repair,
restore or rebuild the Building, and this Lease, at Tenant's or Landlord's
election, shall terminate as of the date of damage, and thereafter neither
Tenant nor Landlord shall have any rights or obligations with respect thereto.
If the Building is only partially damaged or destroyed, and the damage is not
substantial, neither party may elect to terminate the Lease (unless they both
agree to do so). "Substantial" damage or destruction, as used herein, shall
mean that the damage cannot reasonably be repaired within ninety (90) days from
the commencement of the repair work. If the Lease does not terminate, rent
shall abate during the repair or reconstruction period in proportion to the
percentage loss of usage of the Building, unless Tenant's negligence caused the
damage, in which case, there shall be no abatement of rent.
7
<PAGE>
16.2. INSURANCE PROCEEDS. If either party elects to repair, restore or
rebuild the Building, the proceeds of any insurance maintained by Tenant
covering the Building, shall be made available for such repair and used for such
purposes. Tenant shall not be required to expend more than the proceeds of
insurance made available for such repair, restoration or reconstruction. If
Tenant elects not to repair, restore or rebuild, it shall so notify Landlord,
and all proceeds of any insurance maintained by Tenant relating to the Building
shall be payable to Landlord.
16.3. ABATEMENT OF RENT. If this Lease does not terminate, the Annual
Rent payable hereunder shall abate, proportionate to the extent of the damage,
from the date of damage to the earliest to occur of sixty (60) days following
the date that restoration of the Building is substantially complete.
16.4. WAIVER. Tenant waives the provisions of any statutes which
relate to termination of Leases when the thing leased is destroyed and agrees
that such event shall be governed by the terms of this Lease.
ARTICLE 17
CONDEMNATION
17.1. EFFECT OF CONDEMNATION. During the Term, if, as a result of a
Taking:
(a) any substantial portion (meaning more than fifty percent (50%))
or interest in the Building, or
(b) fifty percent (50%) or more of the parking areas, or any other
area of the Real Estate which is reasonably deemed by Tenant to
be material to the conduct of its business,
is taken, within thirty (30) days following the date of such taking,
Tenant may terminate this Lease upon written notice to the Landlord.
17.2. TAKING. A Taking means any condemnation proceedings, moratorium,
initiative, referendum, or any regulation which impairs parking, occupancy of
the Building or any transfer in lieu thereof.
17.3. ABATEMENT OF RENT. If this Lease does not terminate, the Annual
Rent payable hereunder shall abate, proportionate to the extent of the taking,
from the date of such taking.
17.4. CONDEMNATION AWARD. The portion of the award attributable to the
real property and the Building structure shall be payable to Landlord, and
Tenant shall receive the portion of the award allocated to the taking of its
fixtures and equipment, leasehold improvements, inventory, relocation expenses,
and for Tenant's goodwill, loss of business, value of leasehold estate or other
8
<PAGE>
award not related to the value of the real property or Building. Tenant shall
be entitled to petition for a separate award. The parties waive such rights of
Lease termination as may be granted them in the event of condemnation by the
laws of the state wherein the Building is located, it being their agreement that
the rights of termination set forth in this Lease shall be exclusive. Tenant
shall be entitled to participate in any condemnation proceedings, and any
settlement thereof shall be subject to Tenant's approval, not to be unreasonably
withheld.
ARTICLE 18
QUIET ENJOYMENT; NON-DISTURBANCE; ESTOPPEL STATEMENT
18.1. QUIET ENJOYMENT. Landlord represents and warrants that it has
full authority to execute and perform this Lease and to grant the subject
leasehold estate to Tenant. Tenant, provided Tenant is not in default
hereunder, shall have peaceful and quiet enjoyment of the Building without
hindrance or disturbance by Landlord or those claiming by, through or under
Landlord, or any other person or entity whatsoever.
18.2. NON-DISTURBANCE AGREEMENT CONTINGENCY. Notwithstanding anything
in this Lease to the contrary, no rent shall be payable under this Lease until
the holder of every mortgage and encumbrance with priority over this Lease shall
have agreed in writing with Tenant, in the form of a non-disturbance agreement
reasonably acceptable to Tenant, that neither such holder nor anyone acting
under or through the holder, will take any action to interfere with or disturb
the rights of Tenant, its successors and assigns, under and pursuant to this
Lease so long as Tenant, its successors and assigns, are not in default
hereunder. The non-disturbance agreement provided for in this Section 18.2 must
contain the lender's express agreement to permit the application of insurance
and condemnation proceeds in accordance with the provisions of this Lease.
18.3. ESTOPPEL STATEMENT. Within ten (10) business days of a written
request therefor by either party hereto, the party receiving such request shall
provide to the requesting party a written statement acknowledging the
commencement and termination dates of this Lease, that this Lease is in full
force and effect (if the same be true), that this Lease has not been modified
(or, if it has, stating such modifications) and providing such other pertinent
information as requesting party reasonably requests.
9
<PAGE>
ARTICLE 19
TENANT DEFAULT
19.1. EVENT OF DEFAULT. The occurrence of either of the following
shall constitute an Event of Default by Tenant pursuant to this Lease: (i) a
failure by Tenant to pay rent within seven (7) days after Tenant's receipt of
written notice from Landlord specifying such failure; or (ii) a failure by
Tenant to perform obligations pursuant to this Lease other than as specified in
(i) above, within thirty (30) days after Tenant's receipt of written notice from
Landlord specifying such failure or, if cure of such failure reasonably would
require more than thirty (30) days, within a time reasonably necessary to cure
such failure after Tenant's receipt of such written notice.
19.2. REMEDIES. Landlord and Tenant agree that, if an Event of Default
by Tenant should occur, then Landlord's remedies shall be as follows:
(a) Landlord shall have the immediate option to terminate this Lease
and all rights of Tenant hereunder by giving written notice of such
intention to terminate. In the event that Landlord shall elect to so
terminate this Lease, then Landlord may recover from Tenant the worth at
the time of award of any unpaid rent which had been earned at the time of
such termination. The phrase "the worth at the time of award" as referred
to above is to be computed by allowing interest at the rate of seven
percent (7%) per annum.
(b) Landlord shall also have the right, with or without terminating
this Lease, to re-enter the Building and remove all persons and property
from the Building; such property may be removed and stored in a public
warehouse or elsewhere at the cost of and for the account of Tenant.
(c) In the event that Landlord shall elect to re-enter as provided in
subparagraph 19.2(b) above, or shall take possession of the Building
pursuant to legal proceeding or pursuant to any notice provided by law,
then if Landlord does not elect to terminate this Lease as provided in
subparagraph 19.2(a) above, Landlord may from time to time, without
terminating this Lease but subject to subparagraph 19.2(e), recover all
rental as it becomes due.
(d) In the event that Landlord shall relet the Building, then rentals
received by Landlord from such reletting shall be applied: first, to the
payment of any indebtedness other than rent due hereunder from Tenant to
Landlord; second, to the payment of any reasonable cost of such reletting;
third, to the payment of the reasonable cost of any repairs to the Building
required precedent to reletting; fourth, to the payment of rent due and
unpaid hereunder; and the residue held by Landlord and applied in payment
of future rent as the same may become due and payable hereunder. Should
that portion of such rentals received from such reletting during any month,
which is applied by the payment of rent hereunder, be less than the rent
payable during that month by Tenant hereunder, then Tenant shall pay
10
<PAGE>
such deficiency to Landlord immediately upon demand therefor by Landlord.
Such deficiency shall be calculated and paid monthly.
(e) Notwithstanding anything to the contrary in this Lease, Landlord
shall in all events use reasonable efforts to mitigate its damages,
including, without limitation, using reasonable efforts to relet the
Building.
19.3. RIGHT OF REDEMPTION. In the event that Landlord shall obtain a
judgment in an unlawful detainer or other proceeding whereby this Lease is
terminated, then if Tenant pays the amount of such judgment within ninety (90)
days of the date that such judgment becomes a final judgment, the rights of the
parties shall be as if the judgment had never been entered, and the Lease had
never been terminated, and appropriate papers and stipulations shall be filed so
that the judgment is rescinded, and the action dismissed. For purposes of the
rights of third parties (e.g., lenders and creditors), this Lease shall not be
deemed to have been terminated unless the ninety (90)-day period passes without
payment as provided for herein. Tenant's right of redemption hereunder shall
not apply to an action or proceeding arising from Tenant's failure to pay Annual
Rent or any installment thereof, unless such failure of payment resulted from
Tenant's good faith exercise of a right of set-off, withholding or deduction
provided for herein or under applicable law.
19.4. WAIVER OF LIENS. Landlord waives such liens, if any, to which it
may have a right with respect to the merchandise, furniture, trade fixtures and
other personal property of Tenant located on or about the Real Estate and shall
from time to time execute such documents as Tenant may reasonably request to
acknowledge such waiver.
ARTICLE 20
LANDLORD DEFAULT
20.1. LANDLORD DEFAULT DEFINED. Landlord default is defined as the
failure by Landlord to pay when due any amount payable pursuant to any mortgage
or encumbrance affecting title to the Real Estate or any portion thereof and to
which this Lease shall be subordinate, or to perform any obligation under this
Lease, which failure continues for a period of more than thirty (30) days after
receipt of written notice from Tenant specifying such default (ten (10) days if
default is for the non-payment of money), or if such default is of a nature to
require more than thirty (30) days for remedy and continues beyond the time
reasonably necessary to cure, provided Landlord shall undertake action to cure
such default within such thirty (30)-day period and diligently thereafter pursue
such efforts to completion.
20.2. REMEDIES. In the event of any default by Landlord which is not
cured as provided in Section 20.1, Tenant shall have the right to exercise any
of the following rights (which rights shall be cumulative and which shall be in
addition to any other rights or remedies available by law):
11
<PAGE>
(a) To deduct any amount due and owing from Landlord to Tenant, with
interest at the Cure Rate from the date such amount was due, from the next
installment or installments of rent accruing hereunder.
(b) To make such payment, perform such act or contract for the
performance thereof and incur any expense reasonably related thereto as is
necessary to cure Landlord's default, and thereafter deduct the same with
interest at the Cure Rate from the next installment or installments of rent
accruing hereunder.
(c) Initiate legal proceedings for damages and consequential damages
resulting from such Landlord default while remaining in possession of the
Building pending Landlord cure of such default, with the right to recover
any judgment amount through deduction from rent in accordance with
subparagraph 20.2(a) above.
ARTICLE 21
ATTORNEYS' FEES
21.1. THIRD PARTY ACTIONS. If either party becomes a party to any
litigation concerning this Lease, the Building or the Real Estate by reason of
any act or omission of the other party or its authorized representatives, and
not by any act or omission of the party that becomes a party to that litigation
or any act or omission of its authorized representatives, the party that causes
the other party to become involved in the litigation shall be liable to that
party for reasonable attorneys' fees, court costs, investigation expenses,
discovery costs and costs of appeal incurred by it in the litigation.
21.2. PREVAILING PARTY. If either party commences an action against
the other party arising out of or in connection with this Lease, the prevailing
party shall be entitled to have and recover from the losing party, reasonable
attorneys' fees, costs of suit, investigation costs and discovery costs,
including costs of appeal. When this Lease imposes upon a party an obligation
to indemnify the other, the indemnification obligation shall include the
obligation to pay the indemnitee's reasonable attorneys' fees, costs and
disbursements, whether the indemnitee be the plaintiff or defendant.
ARTICLE 22
ASSIGNMENT AND SUBLETTING PERMITTED
Tenant may sublet all or any part of the Building or assign its interest
under this Lease, provided that each sublease shall expressly be made subject to
the provisions hereof. Prior to any assignment or sublease of a majority of
the square footage of the Building, Tenant shall notify Landlord in writing of
Tenant's desire to assign or sublease the interests herein, including in such
12
<PAGE>
notice the earliest effective date of such assignment or sublease, and Landlord
may, within fifteen (15) days after receipt of such notice, deliver a written
notice to Tenant terminating the Lease effective on the date set forth in
Tenant's prior notice. If Landlord fails to terminate the Lease as provided
above, Tenant may assign or sublease as provided in the first sentence of this
article. If Landlord exercises its option to terminate the Lease, there shall
be no termination fee payable pursuant to Section 7.3 hereof. Unless Tenant has
previously exercised its right to extend the Lease pursuant to Article 5 hereof,
no assignment or sublease shall include the right of such assignee or sublessee
to exercise such extension options. No such assignment of this Lease or
sublease of the Building shall modify or limit any right or power of Landlord
under this Lease or affect or reduce any obligation of Tenant hereunder, and all
such Tenant obligations shall continue in full effect as obligations of a
principal and not of a guarantor or surety, as though no assignment or
subletting has been made, provided that if the assignee's net worth exceeds
Fifteen Million Dollars ($15,000,000.00) at the time of the assignment, Tenant
shall be released of any liability accruing after the date of assignment,
provided the assignee assumes such liability. Tenant shall, within ten (10)
days after the execution of any such sublease or assignment, deliver a conformed
copy thereof to Landlord, including, in the event of an assignment, the
assignee's assumption of the Tenant's lease obligations.
ARTICLE 23
UNTENANTABILITY AND ENTRY
If Tenant's ability to conduct its operations within the Building is for
any reason temporarily or permanently impaired (other than because of the
willful act or negligence or breach of Lease by Tenant) inclusive of impairment
(i) resulting from lack of or impairment of utility service (including air
quality and climate control), or (ii) to Building entry; and such impairment
continues for in excess of three (3) months despite Tenant's commercially
reasonable efforts to eliminate such impairment, then Tenant may terminate this
Lease by thirty (30) days written notice to Landlord unless such impairment is
eliminated during such thirty (30) days.
ARTICLE 24
SUCCESSORS IN INTEREST
The terms, conditions and covenants herein contained shall inure to the
benefit of and be binding upon the heirs, assigns and other successors in
interest to the parties hereto.
13
<PAGE>
ARTICLE 25
NOTICES
Any notice to be given or served in connection with this Lease shall be in
writing, and may be served by personal delivery upon the party, or upon a
corporate officer thereof, or may be served by certified mail, return receipt
requested, or by nationally recognized overnight express carrier, addressed as
specified in Section 1.2 hereof or to such other address as requested by either
party in writing. Mail service shall be deemed effective on the third (3rd)
business day after deposit in the U.S. mail in accordance herewith or on the
first (1st) business day after deposit with a nationally recognized overnight
express carrier which provides written evidence of delivery. Either party by
written notice to the other may designate two (2) additional parties to receive
copies of notices sent to it. Such designees may be changed by written notice.
ARTICLE 26
MEMORANDUM OF LEASE
This Lease shall not be recorded. However, a Memorandum thereof in the
form attached hereto as Exhibit B shall be executed, in recordable form, by both
parties concurrently herewith and recorded by Landlord with the official charged
with recordation duties for the county in which the Real Estate is located, with
directions that it be returned to Tenant. Upon expiration or earlier
termination of this Lease, Tenant shall cooperate with Landlord in executing a
Memorandum, in recordable form, acknowledging Tenant's release of its leasehold
interest in the Real Estate.
ARTICLE 27
GENERAL CONDITIONS
27.1. If any sums payable hereunder by either party are not paid when
due and all required notices of such a default have been given the defaulting
party, then such overdue sums shall accrue interest at the Cure Rate, from the
date the period to cure shall have elapsed until paid in full.
27.2. If any term, covenant, condition or restriction of this Lease is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the provisions hereof shall remain in full force and effect and
shall in no way be affected, impaired or invalidated thereby.
27.3. Nothing contained in this Lease shall be deemed or construed by
the parties hereto or by any third person to create the relationship of
principal and agent, or of partnership, or of joint venture, or of any other
association between the parties other than Landlord and Tenant, or to prevent
Landlord or Tenant from entering into ventures in direct competition with the
Real Estate or the Building.
14
<PAGE>
27.4. Time is of the essence of the performance of each provision of
this Lease.
27.5. The waiver of performance of any covenant, term or condition of
this Lease by Landlord or Tenant shall not be construed as a waiver of any
subsequent breach of the same covenant, term or condition. The various rights,
options, elections, powers and remedies of the parties contained in this Lease
shall be construed as cumulative and no one of them exclusive of any other or of
any legal or equitable remedy which either party might otherwise have in the
event of a breach by the other, and the exercise of one right or remedy by a
party shall not in anyway impair its right to any other right or remedy.
27.6. For purposes of computing dates for expirations, options, rental
adjustments or cancellations, any partial month at the commencement of the Term
shall be disregarded.
27.7. Wherever in this Lease the Landlord or the Tenant is required to
give its consent or approval to any action on the part of the other, such
consent or approval shall not be unreasonably withheld, conditioned or delayed
unless specified to the contrary herein.
27.8. Words of gender used in this Lease shall be deemed to include
other genders, and singular and plural words shall be deemed to include the
other, as the context may require.
27.9. Under no circumstances shall Tenant be liable or responsible for
payment of any brokerage commission, finder's fee or any other charge or fee
unless specifically contracted for in writing by Tenant. Landlord shall
indemnify and hold Tenant harmless from any such fees and charges for which
Tenant did not specifically contract to pay in writing.
27.10. Paragraph headings in this Lease are for convenience only, are
not part of the agreement of the parties, and shall not constitute an aid in
interpreting this Lease.
27.11. This Lease shall be construed in accordance with and governed by
the laws of New Jersey, except as otherwise required by mandatory provisions of
law.
27.12. If Landlord is other than a natural person, each individual
executing this Lease on behalf of the named Landlord represents and warrants
that he is duly authorized to execute this Lease on behalf of the named Landlord
in accordance with a duly adopted resolution of Landlord's board of directors
and Landlord's bylaws (if Landlord is a corporation) and in accordance with the
agreement of partnership (if Landlord is a partnership) and by delivery hereof
warrant that execution by no other signatory is required and will hold Tenant
harmless from any claim to the contrary (and loss suffered by reason thereof).
27.13. Tenant hereby agrees that no toxic or hazardous materials,
chemicals, wastes, pollutants or similar substances (including, but not limited
to, petroleum, asbestos insulation, urea formaldehyde insulation, and any other
materials or substances defined as "hazardous substances", "hazardous
materials", "toxic substances" or "pollutants" in applicable law or regulation)
will, in the future, be stored, treated, disposed of or incorporated into, on or
around the Premises by Tenant or
15
<PAGE>
Tenant's employees or agents during the term of this Lease, in violation of
any applicable law or regulations. Notwithstanding the above, Tenant shall
have no responsibility for and makes no agreement with respect to any such
materials, storage, treatments, disposition or incorporation into, on or
around the Premises relating to the period prior to the date hereof. In the
event of a spill or mishandling of the same by Tenant or Tenant's employees
or agents during the Lease term, Tenant will be liable for all costs incurred
in connection with the clean-up, remediation and restoration of the Premises
required by any governmental agency and will indemnify and hold Landlord
harmless. Neither Landlord nor Tenant shall have any obligation to one
another during the Lease term or thereafter to remove any asbestos or other
such materials which existed on the date of this Lease.
27.14. Prior to the date of this Lease, Tenant and Landlord (or their
predecessors in interest, as adjacent property owners), have entered into one or
more easements/agreements relating to the availability of utility services to
the Premises. Tenant and Landlord acknowledge that nothing contained in this
Lease, and nothing arising at law by reason of Landlord acquiring title to the
Premises, shall interrupt, interfere or diminish Tenant's rights to the utility
services it previously enjoyed as a landowner of the Premises during its tenancy
hereunder, except for well water provided for fire service.
ARTICLE 28
SECURITY DEPOSIT
On or before the Commencement Date Tenant shall deposit with Peoples Title
Agency, Inc. (agent of Chicago Title Insurance Company) as Escrowee the sum of
$20,000. Said sum plus interest thereon (together the "SECURITY DEPOSIT") shall
be held by Escrowee to secure the full performance of those obligations of
Tenant (i) under Article 12 of this Lease to be performed in conjunction with
termination of the Lease and/or surrender of possession of the Building, and
(ii) under Section 27.13 of the Lease in connection with clean-up, remediation
and restoration of the Premises. If Tenant defaults in the performance of any
such obligations, then, without prejudice to any other remedies available to
Landlord, the Security Deposit shall be applied to the extent necessary to make
good any such default, and the remaining balance, if any, shall be returned to
Tenant. Any claim by Landlord against the Security Deposit shall be made, if at
all, in writing served on Escrowee and Tenant within 30 days after surrender of
possession of the Building to Landlord. If no claim is made within said 30-day
period, or if a claim is made for less than the entire amount of the Security
Deposit, then the Escrowee shall promptly return to Tenant the Security Deposit,
or the portion thereof in excess of the claim, as the case may be. Prior to the
Commencement Date Landlord and Tenant shall submit Escrow Instructions to the
Escrowee consistent with the provisions hereof. The Escrowee's fee shall be
shared equally by Landlord and Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease on
this _____ day of _______________, 1996.
16
<PAGE>
LANDLORD: TENANT:
VINELAND CONSTRUCTION CO. VICTORY REFRIGERATION COMPANY
By: ______________________________ By: ______________________________
Title: ______________________________ Title: ______________________________
17
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-28-1996
<PERIOD-END> SEP-28-1996
<CASH> 958
<SECURITIES> 0
<RECEIVABLES> 19,115
<ALLOWANCES> 0
<INVENTORY> 21,062
<CURRENT-ASSETS> 54,641
<PP&E> 29,958
<DEPRECIATION> 11,478
<TOTAL-ASSETS> 85,558
<CURRENT-LIABILITIES> 22,570
<BONDS> 45,132
0
0
<COMMON> 84
<OTHER-SE> 15,872
<TOTAL-LIABILITY-AND-EQUITY> 85,558
<SALES> 89,571
<TOTAL-REVENUES> 89,571
<CGS> 63,080
<TOTAL-COSTS> 63,080
<OTHER-EXPENSES> 20,015
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 3,277
<INCOME-PRETAX> 3,067
<INCOME-TAX> 1,069
<INCOME-CONTINUING> 1,998
<DISCONTINUED> (2,115)
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (117)
<EPS-PRIMARY> (.01)
<EPS-DILUTED> (.01)
</TABLE>
