U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-QSB
[ X ] Quarterly Report under Section 13 or 15 (d) of the
Securities Exchange Act of 1934.
For the quarterly period ended June 30, 1997
[ ] Transition Report under Section 13 or 15 (d) of the
Exchange Act.
For the transition period from ___________________ to ________________________.
Commission File Number 000-19318
SPARTA FOODS, INC.
(exact name of small business issuer as specified in its charter)
Minnesota 41-1618240
(state or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
2570 Kasota Avenue, St. Paul, MN 55108
(Address of principal executive offices)
(612) 646-1888
(Issuer's telephone number)
Check whether the Issuer (1) filed all reports required to be filed by Section
13 or 15 (d) of the Exchange Act during the past 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 [ ]
State the number of shares outstanding of each of the Issuer's classes of common
equity, as of the latest practicable date:
6,705,049 shares of Common Stock at July 25, 1997.
Transitional Small Business Disclosure Format: Yes [ ] No [ X ]
<PAGE>
SPARTA FOODS, INC.
FORM 10-QSB
QUARTER ENDED JUNE 30, 1997
TABLE OF CONTENTS
PAGE
----
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements 3
Condensed Consolidated Balance Sheets at June 30, 1997
and September 30, 1996 3
Condensed Consolidated Statements of Operations for the
three-month periods and the nine-month periods
ended June 30, 1997 and 1996 4
Condensed Consolidated Statements of Cash Flows for
the nine-month periods ended June 30, 1997
and 1996 5
Notes to Condensed Consolidated Financial Statements-
June 30, 1997 6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 8
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 12
SIGNATURES 13
EXHIBIT INDEX 14
<PAGE>
PART 1. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
SPARTA FOODS, INC.
Condensed Consolidated Balance Sheets
<TABLE>
<CAPTION>
June 30 September 30
1997 1996
-------------- ---------------
(unaudited)
<S> <C> <C>
ASSETS
Current Assets
Cash $ 30,567 $ 600
Accounts receivable, less allowances of $50,000
and $52,000, respectively 849,877 639,934
Inventories:
Finished goods 481,674 241,959
Raw materials and packaging 498,405 506,513
Prepaid expenses 211,197 63,915
----------------------------------------------------------------------------------------------------------------
Total current assets 2,071,720 1,452,921
----------------------------------------------------------------------------------------------------------------
Property and Equipment 6,080,455 5,850,489
Less accumulated depreciation 2,456,966 2,115,810
----------------------------------------------------------------------------------------------------------------
3,623,489 3,734,679
----------------------------------------------------------------------------------------------------------------
Other Assets
Goodwill, less accumulated amortization of $69,355
and $102,358, respectively 444,018 457,533
Covenants not-to-compete, less accumulated amortization
of $38,606 and $235,366, respectively 71,394 98,134
Rental property held for resale, less accumulated depreciation
of $33,966 and $15,984, respectively 911,184 924,016
Other 636,687 339,730
----------------------------------------------------------------------------------------------------------------
2,063,283 1,819,413
----------------------------------------------------------------------------------------------------------------
$ 7,758,492 $ 7,007,013
----------------------------------------------------------------------------------------------------------------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities
Note payable, bank $ 791,174 $ 294,811
Current maturities of long-term debt 442,230 567,905
Accounts payable 670,969 658,575
Accrued expenses 523,997 412,074
----------------------------------------------------------------------------------------------------------------
Total current liabilities 2,428,370 1,933,365
----------------------------------------------------------------------------------------------------------------
Long-Term Debt, less current maturities 1,729,097 2,063,613
----------------------------------------------------------------------------------------------------------------
Stockholders' Equity
Preferred Stock, authorized 1,000,000 shares,
no designated par value; none issued ---- ----
Common Stock, authorized 15,000,000 shares, $.01 par value; issued
and outstanding 6,685,049 and 6,679,049 shares, respectively 66,850 66,790
Additional paid-in capital 4,913,459 4,911,070
Accumulated deficit (1,379,284) (1,967,825)
----------------------------------------------------------------------------------------------------------------
3,601,025 3,010,035
----------------------------------------------------------------------------------------------------------------
$ 7,758,492 $ 7,007,013
----------------------------------------------------------------------------------------------------------------
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
<PAGE>
SPARTA FOODS, INC.
Condensed Consolidated Statements of Operations
(unaudited)
<TABLE>
<CAPTION>
For the three months For the nine months
ended ended
June 30 June 30
-------------------------------------- --------------------------------------
1997 1996 1997 1996
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $ 3,810,107 $ 3,346,613 $ 10,114,728 $ 9,262,690
Cost of sales 2,558,433 2,430,227 7,028,204 6,762,206
- ---------------------------------------------------------------------------------------------------------------------------
Gross profit 1,251,674 916,386 3,086,524 2,500,484
Selling, general and administrative expenses 791,552 735,602 2,329,987 2,194,622
- ---------------------------------------------------------------------------------------------------------------------------
Operating income 460,122 180,784 756,537 305,862
Other income (expense),net 35,086 35,826 88,221 70,213
Interest expense (74,502) (93,710) (240,130) (344,893)
- ---------------------------------------------------------------------------------------------------------------------------
Income before income tax 420,706 122,900 604,628 31,182
Provision for income tax 13,587 --- 16,087 ---
- ---------------------------------------------------------------------------------------------------------------------------
Net income $ 407,119 $ 122,900 $ 588,541 $ 31,182
- ---------------------------------------------------------------------------------------------------------------------------
Net income per common and common
equivalent share:
Primary earnings per share $ .05 $ .01 $ .07 $ .01
============== ============== ============== ==============
Weighted average number of
common and common equivalent
shares 9,235,535 9,162,490 9,235,535 6,505,866
============== ============== ============== ==============
Fully diluted earnings per share $ .05 $ .01 $ .07 ----
============== ============== ============== ==============
Weighted average number of
common and common equivalent
shares 9,235,535 9,292,110 9,235,535 7,118,036
============== ============== ============== ==============
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
<PAGE>
SPARTA FOODS, INC.
Condensed Consolidated Statements of Cash Flows
(unaudited)
<TABLE>
<CAPTION>
For the nine months
ended
June 30
--------------------------------
1997 1996
-----------------------------------------------------------------------------------------------------------
<S> <C> <C>
Cash Flows From Operating Activities
Net income $ 588,541 $ 31,182
Adjustments to reconcile net income to net cash provided
by (used in) operating activities:
Depreciation and amortization 421,152 401,043
Loss on sale-leaseback of equipment 15,940 ---
Changes in assets and liabilities:
Accounts receivable (209,944) (84,171)
Inventories (231,607) 115,085
Prepaid expenses (147,282) (18,614)
Other assets (302,107) 5,041
Accounts payable and accrued expenses 124,318 (501,927)
-----------------------------------------------------------------------------------------------------------
Net cash provided by (used in) operating activities 259,011 (52,361)
-----------------------------------------------------------------------------------------------------------
Cash Flows From Investing Activities
Purchases of equipment (472,696) (71,734)
Proceeds from the sale-leaseback of equipment 205,030 ---
-----------------------------------------------------------------------------------------------------------
Net cash (used in) investing activities (267,666) (71,734)
-----------------------------------------------------------------------------------------------------------
Cash Flows From Financing Activities
Net borrowings (payments) on line of credit 496,363 (581,274)
Long-term borrowings (repayments), net (460,191) (444,182)
Issuance of Common Stock (excluding, in 1996, stock issued for
conversion of debt), net of cost 2,450 1,149,288
-----------------------------------------------------------------------------------------------------------
Net cash provided by financing activities 38,622 123,832
-----------------------------------------------------------------------------------------------------------
Net increase (decrease) in cash 29,967 (263)
Cash Balance
Beginning of period 600 863
-----------------------------------------------------------------------------------------------------------
End of period $ 30,567 $ 600
-----------------------------------------------------------------------------------------------------------
Supplemental Disclosures of Cash Flow Information
Cash payments for:
Interest $ 242,569 $ 356,149
Income tax 3,750 ---
-----------------------------------------------------------------------------------------------------------
Supplemental Schedule of Noncash Financing Activities
Conversions to Common Stock:
of bridge financing $ --- $ 350,000
of trade account payable --- 20,000
Reclassification of deferred private placement costs to equity
upon issuance of Common Stock --- 18,704
-----------------------------------------------------------------------------------------------------------
</TABLE>
See Notes to Condensed Consolidated Financial Statements.
<PAGE>
Sparta Foods, Inc.
Notes to Condensed Consolidated Financial Statements
June 30, 1997
(unaudited)
NOTE 1. GENERAL
The unaudited condensed consolidated balance sheet at June 30, 1997,
condensed consolidated statements of operations for the three-month and
nine-month periods ended June 30, 1997 and 1996, and condensed consolidated
statements of cash flows for the nine-month periods ended June 30, 1997 and
1996, include all adjustments which in the opinion of management are
necessary in order to make the financial statements not misleading and are
not necessarily indicative of results of operations to be expected for the
entire fiscal year ending September 30, 1997.
The unaudited financial statements should be read in conjunction with the
audited financial statements for the years ended September 30, 1996 and
1995, contained in Form 10-KSB and Form 10-KSB/A(No. 1), and Management's
Discussion and Analysis of Financial Condition and Results of Operations
contained herein.
NOTE 2. FINANCING AGREEMENT
The Company has a financing agreement with a bank which involves a line of
credit and term note. Under this agreement the Company is required to
maintain certain minimum net worth levels. In addition, a maximum debt to
net worth ratio is specified, and dividends and capital expenditures are
restricted. Advances are secured by the Company's accounts receivable,
inventories and equipment. Maximum borrowing under the line of credit is
determined by an accounts receivable and inventory borrowing base
calculation or $1,200,000, whichever is less. At June 30, 1997, such
borrowing bears interest at prime plus .50 percent (9.00 percent), and
$791,174 was outstanding on the line of credit. On December 20, 1996 this
agreement was amended to adjust various covenants, extend the maturity and
make available an additional $200,000 under the term note.
NOTE 3. PROVISION FOR INCOME TAX
The 1997 provision for income tax is based upon taxable income subject to
federal and state alternative minimum taxes. The availability of tax
benefits from prior years offsets income otherwise subject to ordinary
taxation. Such benefits eliminated taxes on income of the 1996 periods.
<PAGE>
NOTE 4. NET INCOME PER COMMON AND COMMON EQUIVALENT SHARE
Primary earnings per common and common equivalent share are calculated
based on the net income for the period and on the weighted average number
of common shares outstanding during the period, both adjusted by assuming
the issuance of shares for the exercise of all stock options and warrants
having exercise prices which are less than the average market price of
Common Stock, using the treasury stock method. By that method, the assumed
proceeds from the exercises are used to repurchase shares to the extent
possible and then apply the balance of any proceeds to reduce debt, thereby
decreasing interest expense; where applicable, net income has been
increased for the computation of earnings of the periods. The computation
of fully diluted earnings per share employs the treasury stock method but
applies the market price at the close of the periods rather than average
prices during the periods to repurchase shares.
The Financial Accounting Standards Board has issued "Statement of Financial
Accounting Standards No. 128, Earnings per Share" (FAS 128) which
supersedes Accounting Principles Board Opinion No. 15 (APB 15). FAS 128
requires, for financial statement periods ending after December 15, 1997
but not sooner, the presentation of basic earnings per share (EPS) and
diluted per share amounts. Basic EPS is the net income related to the
weighted-average number of common shares outstanding for the period.
Diluted EPS reflects potential dilution assuming the issuance of Common
Stock for the exercise of all stock options and warrants, computed
similarly to fully diluted EPS pursuant to APB 15.
If the Company had applied FAS 128 in the accompanying financial
statements, the following per share amounts would have been reported.
<TABLE>
<CAPTION>
Periods Ended June 30
-------------------------------------------------------------------------
3 mo. `97 3 mo. `96 9 mo. `97 9 mo. `96
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
Net Income $ 407,119 $ 122,900 $ 588,541 $ 31,182
--------- --------- --------- ---------
Shares 6,685,049 6,667,304 6,683,269 5,477,580
--------- --------- --------- ---------
Basic EPS $ .06 $ .02 $ .09 $ .01
- --------- ------- ------- ------- -------
Dilutive securities:
Options and Warrants 1,568,053 2,180,047 1,605,781 827,768
--------- --------- --------- ---------
Total Shares 8,253,102 8,847,351 8,289,050 6,305,348
--------- --------- --------- ---------
Diluted EPS $ .05 $ .01 $ .07 ----
- ----------- ------- ------- ------- -------
</TABLE>
Options and warrants to purchase 884,134 shares of Common Stock at various
prices ranging from $1.06 to $5.00 per share were outstanding during the 1997
periods but were not included in the computations of diluted EPS because the
exercise prices were greater than the average market price of the Common Stock.
The options and warrants have various expiration dates between 2001 and 2007.
NOTE 5. SUBSEQUENT EVENT
As part of the Company's previously announced relocation of its corporate
headquarters and manufacturing plant to a leased facility within the Twin
Cities metropolitan area, it has obtained additional financing to
facilitate the move and extend its production capabilities. During July
1997, the Company entered into a $1,950,000 credit agreement with the
Minnesota Agricultural and Economic Development Board to finance the
purchase of new manufacturing equipment. It also obtained an additional
$800,000 in availability for revolving credit borrowings under its existing
Credit Agreement with its bank.
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Overview
La Canasta of Minnesota, Inc. ("La Canasta"), the predecessor of Sparta
Foods, Inc. (the "Company"), and now a wholly-owned subsidiary of the
Company, began producing limited volumes of hand stretched tortillas, corn
tortillas and corn tortilla chips shortly following its organization in
1981, primarily for sale to restaurants. The Company was organized under
the laws of the State of Minnesota in 1988, originally under the name of
"Sparta Corp." for the purposes of raising capital for the acquisition of,
or investment in, a business. In January 1991, the Company acquired all of
the outstanding capital stock of La Canasta. During the period 1991 through
1993 the Company completed acquisitions which expanded its trademark retail
brands to include Cruz, Chapala, Mexitos and La Campana Paradiso, its food
service bases to include McDonald's restaurants and its retail distribution
network to include Bradley Distributing, Inc. In 1995 the Company relocated
its Lakeville, Minnesota production operations to its St. Paul
manufacturing facility. The Company leased the Lakeville facility in 1996
for a period of 10 years with a purchase option. Effective September 1,
1997 the Company signed a 15-year lease to relocate all operations to an
office and manufacturing facility in New Brighton, Minnesota. The current
facility in St. Paul has been sublet for the remainder of its lease term.
Results of Operations
The Company's net sales of $10,114,728 increased $852,038 for the nine
months ended June 30, 1997, as compared to the nine months ended June 30,
1996. Net sales of $3,810,107 increased $463,494 for the three months ended
June 30, 1997, as compared to the three months ended June 30, 1996. These
increases primarily resulted from new customers in the food service
industry as well as expansion into new territories through its primary
retail distributors, Crystal Farms Refrigerated Distribution Company and
Marigold Foods, Inc.
The Company has historically had higher sales in its third and fourth
fiscal quarters which end June 30 and September 30, respectively, than in
its first and second quarters. Management believes that this is a result of
seasonal consumption patterns with respect to the Company's food products,
such as consumption of higher volumes of tortilla chips, salsas, and
barbecue sauces, during the summer months. This seasonality may cause
quarterly results of operations to fluctuate.
Gross profit, as a percentage of net sales, for the nine months ended June
30, 1997 was 30.5 % compared to 27.0 % for the nine months ended June 30,
1996. Gross profit, as a percentage of net sales, for the three months
ended June 30, 1997 was 32.9 % compared to 27.4% for the three months ended
June 30, 1996. The higher percentages reflect significant cost savings
achieved by certain purchases of raw materials and packaging and processing
efficiencies, as well as the effect of periodic price increases of the
Company's products.
<PAGE>
Selling, general and administrative expenses increased $135,365 or 6 % in
the nine months ended June 30, 1997, as compared to the nine months ended
June 30, 1996. These expenses increased $55,950 or 8 % in the three months
ended June 30, 1997, as compared to the three months ended June 30, 1996.
Both increases reflect the results of the Company's cost control programs
to limit growth of these expenses to a comparative growth in sales.
Interest expense decreased $104,763 for the nine months ended June 30, 1997
compared to the nine months ended June 30, 1996. Interest expense decreased
$19,208 for the three months ended June 30, 1997 compared to the three
months ended June 30, 1996. Both are due primarily to interest rate
reductions and lower levels of bank borrowings.
As previously reported the Company signed a lease during the third quarter
and will be moving its corporate office and manufacturing operations to a
new facility during the fourth quarter. The Company will record a
nonrecurring charge against operating income in connection with the
relocation, the amount of which is unknown at this time.
Liquidity and Capital Resources
The Company financed its current activities primarily through short-term
borrowings, cash generated from its operations and the sale and leaseback
of equipment.
Cash provided by operating activities during the nine months ended June 30,
1997 was $259,011 consisting principally of net income of $588,541,
depreciation and amortization of $421,152, and an increase in accounts
payable and accrued expenses of $124,318, offset by increases in
inventories of $231,607, accounts receivable of $209,944, prepaid expenses
of $147,282, and other assets of $302,107. Included in prepaid expenses is
a reclassification of manufacturing supplies of $53,821 previously included
in inventories. Included in other assets are equipment deposits of
$190,539. Cash used in investing activities was $267,666, primarily the
result of the sale and leaseback of a new freezer and the purchase and
installation of new production equipment. Cash provided by financing
activities was $38,622 due mainly to a net increase in short-term
borrowings under the Company's Line of Credit.
The Company estimates that as of June 30, 1997, there was an additional
$305,000 which could be drawn under its bank Line of Credit. The amount
available under this Line of Credit fluctuates daily based upon the
Company's eligible accounts receivable and inventory. The Line of Credit,
Bank Term Note and Bank Capital Note are subject to various financial
covenants, the violation of which could result in termination of the loan
agreements which would require the Company to repay the loans in full. It
is management's opinion that the Company will be able to meet the
requirements of these covenants in the future; however, there is no
assurance that the Company will not violate the financial covenants in the
future or that the bank would waive any such violations.
At June 30, 1997, the Company had cash of $30,567 and negative working
capital of $356,650.
The Company believes that its bank credit facilities and cash flow from
operations will be sufficient to meet its operating requirements through
fiscal 1997, assuming the following: (i) the Company's fiscal 1997 sales
equal or exceed fiscal 1996 sales; (ii) there are no significant increases
in operating expenses in fiscal 1997; and (iii) the Company is able to keep
its bank credit facilities operative.
<PAGE>
Seasonality
The Company has historically had higher sales in its third and fourth
fiscal quarters which end June 30, and September 30, respectively, than in
its first and second quarters. Management believes that this is a result of
seasonal consumption patterns with respect to the Company's food products,
such as consumption of higher volumes of tortilla chips, salsa and barbecue
sauces, during the summer months. This seasonality may cause quarterly
results of operations to fluctuate.
Raw Material Cost Fluctuations
The Company does not enter into futures contracts as defined by SFAS 80. It
does, however, enter into purchase orders for delayed delivery of raw
materials, generally 30 days for raw materials other than flour and corn.
The Company enters into purchase orders for delayed delivery of flour and
corn for a period of 2-18 months, depending on current pricing, to ensure
the availability of the type of flour and corn best suited for the
Company's products. These purchase orders are placed directly with the
suppliers.
Subsequent Event
On July 2, 1997, in conjunction with the previously reported relocation of
the Company's corporate office and manufacturing facilities planned for the
fall of 1997, the Company signed a $1,950,000 credit agreement with the
Minnesota Agricultural and Economic Development Board ("Board") for new
equipment financing. The Board issued tax-exempt revenue bonds under its
Small Business Development Loan Program and will loan the proceeds to the
Company to purchase new equipment. The interest rate is 5.79% and the loan
matures on August 1, 2008. The Company is subject to various financial
covenants, and the Board received a security interest in the equipment.
On July 1, 1997 the Bank and the Company signed an amendment to their
Credit Agreement which adjusted various financial covenants and made
available additional revolving credit borrowings of $800,000 through
November 1, 1997. After November 1, 1997 this additional borrowing may be
converted into a five-year term loan.
Outlook
The Company's plan in fiscal 1997 is to increase revenues and improve
profitability by focusing on new markets and product brand positioning of
tortillas and tortilla chips in the retail and food service markets to take
advantage of strong industry growth patterns.
The foregoing statements contained in this Outlook section of Management's
Discussion and Analysis of Financial Condition and Results of Operations,
including those relating to the Company's (i) ability to meet its covenant
requirements under its Credit Agreement and (ii) operating requirements
through fiscal 1997 contained in Management's Discussion and Analysis of
Financial Condition and Results of Operations, involve a number of risks
and uncertainties. Some of the factors that could cause actual results to
differ materially include but are not limited to seasonality of its sales
and raw materials cost fluctuations, which are discussed above, and the
following:
<PAGE>
Reliance on Principal Customers. The Company has several customers who each
accounted for a significant percentage of the Company's sales in the nine
month period ended June 30, 1997. During that period, sales to Crystal
Farms Refrigerated Distribution Company, Ken Davis Products, Inc., Catalina
Specialty Foods, Inc. and Bradley Distributing, Inc. accounted for
approximately 22 %, 8 %, 13 % and 6 % of the Company's sales, respectively.
While the Company has manufacturing agreements with all of the foregoing
customers except Bradley Distributing, Inc., the loss of any of these
customers could have a material and adverse effect on the Company's sales
and profitability.
Competition. The Mexican-style food manufacturing and distribution industry
is highly competitive. The Company is in competition with a number of
manufacturers and distributors of Mexican-style food products and, to a
limited extent, manufacturers of "snack foods," many of which are better
capitalized than the Company. The Company will also be subject to future
competition from other manufacturers, distributors and retailers who enter
into the Mexican-style food and distribution industry. In the retail
market, many of these competitors engage in extensive local and national
advertising and marketing, and the brand names for products distributed by
those competitors are significantly more recognizable to the consumer than
the Company's brand names. In addition, competition for shelf space in
retail grocery stores is intense. In the food service market, the Company
is competing with a number of regional and national producers or
Mexican-style food products. Many of these competitors are better
capitalized than the Company and have established sales organizations. No
assurance can be given that the Company will be able to compete as it
expands its markets.
Sufficiency of Working Capital. As of June 30, 1997, the Company had a cash
balance of $30,567 and negative working capital of $356,650. As of June 30,
1997, there was an estimated $305,000 which could have been drawn under the
Company's Line of Credit. The amount available fluctuates daily based upon
the Company's eligible accounts receivable and inventory. In addition, the
Company's ability to obtain additional equity capital is severely
restricted, and, if obtainable at all, would result in substantial
dilution. Therefore, the Company's ability to fund its working capital
requirements in fiscal 1997 will be almost entirely dependent on generating
sales which equal or exceed the Company's fiscal 1996 sales. In addition,
any unforeseen expense of a material nature would materially and adversely
affect the Company's ability to fund ongoing operations.
<PAGE>
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Exhibit
Number Description
------- -----------
10.46 Commercial lease between First Industrial L. P. and
Sparta Foods, Inc., effective September 1, 1997 for a
15-year period
11 Computation of Earnings Per Common Share
27 Financial Data Schedule (only filed in electronic
format)
(b) Reports on Form 8-K
A report on Form 8-K was not filed during the quarter ended June 30, 1997.
<PAGE>
SIGNATURES
In accordance with the requirements of the Exchange Act, the Registrant
caused this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
SPARTA FOODS, INC.
(Registrant)
Dated: August 7, 1997 By:/s/ Joel P. Bachul
Joel P. Bachul,
President and Chief Executive Officer
Dated: August 7, 1997 By:/s/ A. Merrill Ayers
A. Merrill Ayers
Treasurer, Secretary and
Chief Financial Officer
<PAGE>
EXHIBIT INDEX
SPARTA FOODS, INC.
Form 10-QSB for Quarter Ended June 30, 1997
Exhibit Number Description
- -------------- -----------
10.46 Commercial lease between First Industrial L. P. and
Sparta Foods, Inc., effective September 1, 1997 for
a 15-year period
11 Computation of Earnings Per Common Share
27 Financial Data Schedule (only filed in electronic
format)
FIRST INDUSTRIAL, L.P.
STANDARD FORM - INDUSTRIAL BUILDING LEASE
(Triple Net/Single Tenant)
Section 1: BASIC TERMS
This Section 1 contains the Basic Terms of this Lease between Landlord and
Tenant, named below. Other Sections of the Lease referred to in this Section 1
explain and define the Basic Terms and are to be read in conjunction with the
Basic Terms.
1.1 Date of Lease:
1.2 Landlord: First Industrial, L.P., a Delaware limited partnership
1.3 Tenant: Sparta Foods, Inc.
1.4 Premises: See Exhibit "A" consisting of 112,082 sq. ft., subject to
verification by Tenant prior to the lease commencement date.
1.5 Lease Term: Fifteen (15) years Zero (0) months ("Term"), commencing
September 1, 1997 ("Commencement Date") and ending August 31, 2012
("Expiration Date").
1.6 Permitted Uses: (See Section 4) General office/production/warehouse
1.7 Tenant's Guarantor: (if none, so state) None
1.8 Brokers: (See Section 22; if none, so state)
(A) Tenant's Broker: None
(B) Landlord's Broker: Michael Stephens, First Industrial &
Bob Atkinson, Robert C. Atkinson, Inc.
1.9 Security Deposit: (See Section 4) None
1.10 Rent Payable by Tenant: See Exhibit "B"
1.11 Riders to Lease: The following riders are attached to and made a part
of this Lease. (If none, so state) See Section 25.15.
Section 2: LEASE OF PREMISES; RENT
2.1 Lease of Premises for Lease Term. Landlord hereby leases the Premises
to Tenant, and Tenant hereby rents the Premises from Landlord, for the Term and
subject to the conditions of this Lease. Landlord warrants to Tenant that, to
the best of the actual knowledge of Landlord, as of the date that Tenant takes
possession of the Premises, the Premises shall be in compliance with all
applicable codes, laws and ordinances relating to the Premise and the building
systems are in good working order and condition as of the date of this Lease.
Landlord and Tenant shall conduct an joint inspection of the Premises on the
date that the Premises is delivered to Tenant. If such inspection shall disclose
that any of the building systems are not in good working order and condition,
Landlord shall cause the same to be put into such condition as soon as
reasonably possible, at Landlord's expense. In addition, the Premises shall be
delivered to Tenant by Landlord in a "broom clean" condition.
<PAGE>
2.2 Types of Rental Payments. Tenant shall pay rents of (a) net base rent
payable in monthly installments as set forth in Exhibit "B" attached hereto (the
"Net Base Rent"), in advance, on the first day of each and every calendar month
during the term of this Lease; (b) except as provided herein all costs, expenses
and charges of every nature relating to, or incurred in connection with, the
ownership and operation of the Premises and that are attributable to, or become
due, during the Term ("Additional Rent"); and (c) in the event that any monthly
installment of Net Base Rent is not paid within ten (10) days of the date when
due, a late charge in an amount equal to three percent (3%) of the
then-delinquent installment of Net Base Rent (the "Late Charge"; the Net Base
Rent, Additional Rent and Late Charge shall collectively be referred to as
"Rent"). All Rent shall be paid to Landlord c/o First Industrial, L.P., PO Box
75631, Chicago, IL 60675-5631 (or to such other entity designated as Landlord's
management agent, if any, and if Landlord so appoints such a management agent,
the "Agent"), or pursuant to such other directions as Landlord shall designate
in this Lease or otherwise.
2.3 Covenants Concerning Rental Payments. Tenant shall pay the Rent
promptly when due, without notice or demand, and without any abatement,
deduction or setoff, except as may otherwise be expressly and specifically
provided in this Lease. No payment by Tenant, or receipt or acceptance by Agent
or Landlord, of a lesser amount than the correct Rent shall be deemed to be
other than a payment on account, nor shall any endorsement or statement on any
check or letter accompanying any payment be deemed an accord or satisfaction,
and Agent or Landlord may accept such payment without prejudice to its right to
recover the balance due or to pursue any other remedy available to Landlord. If
the Commencement Date occurs on a day other than the first day of a calendar
month, the Rent due for the partial calendar months occurring at the
commencement and the expiration of the Term shall be prorated on a per diem
basis. It is intended that the Rent provided in this Lease shall be an
absolutely net return to Landlord throughout the Term and any renewals or
extensions thereof, except as provided herein.
Section 3: TAXES AND ASSESSMENTS; ASSOCIATION DUES
3.1 Taxes. Tenant agrees to pay as "Additional Rent" for the Premises (i)
all governmental taxes, assessments, fees, penalties and charges of every kind
or nature (other than Landlord's income taxes, estate tax, succession,
inheritance or other transfer tax or corporate franchise tax), whether general,
special, ordinary or extraordinary, due and payable at any time, or from time to
time, during the Term and any extensions thereof, in connection with the
ownership, leasing or operation of the Premises or of the personal property and
equipment located therein or in connection therewith (the "Taxes"). All such
Taxes shall be paid by Tenant before they become delinquent. The Taxes for the
first and last years of the Term and any extension thereof will be appropriately
prorated. If any special assessments levied against the Premises are payable in
installments, Tenant shall be responsible only for those installments that are
attributable to the period during which Tenant has possession of the Premises
and such installments shall be paid over the longest allowable period. For
purposes hereof, Taxes for any year shall be Taxes that are due for payment or
paid in that year, rather than taxes that are assessed or become a lien or
accrue during such year. If at any time during the Term, the methods of taxation
prevailing on the date hereof shall be altered, such additional or substitute
tax, assessment, levy, charge or imposition shall be deemed to be included
within the term "Taxes" for the purposes hereof.
Section 4: USE OF PREMISES; SECURITY DEPOSIT
4.1 Use of Premises. The Premises shall be used for the purpose(s) set
forth in Section 1.6 above and for no other purpose whatsoever. Tenant shall
not, at any time, use or occupy, or suffer or permit anyone to use or occupy,
the Premises, or do or permit anything to be done in the Premises, in any manner
that may (a) violate any Certificate of Occupancy for the Premises; (b) cause,
or be liable to cause, injury to the Premises or any equipment, facilities or
systems therein; (c) constitute a violation of the laws and requirements of any
public authority or the requirements of insurance bodies or the reasonable rules
and regulations of the Premises; and (d) impair or tend to impair the proper and
economic maintenance, operation, and repair of the Premises and its equipment,
facilities or systems.
<PAGE>
4.2 Signage. Tenant shall not affix any sign of any size or character to
any portion of the Premises without prior written approval of Landlord, which
approval shall not be unreasonably withheld or delayed. Tenant shall remove all
signs of Tenant upon the expiration or earlier termination of this Lease and
immediately repair any damage to the Premises caused by, or resulting from, such
removal.
Section 5: CONDITION AND DELIVERY OF PREMISES
5.1 Condition of Premises. Except as provided herein, Landlord shall
deliver the Premises to Tenant "broom-clean." Tenant agrees that Tenant is
familiar with the condition of the Premises, and Tenant hereby accepts the
Premises on an "AS-IS," "WHERE-IS" basis. Except as provided herein, tenant
acknowledges that neither Landlord nor Agent nor any representative of Landlord
has made any representation as to the condition of the Premises or the
suitability of the Premises for Tenant's intended use. Except as provided
herein, tenant represents and warrants that Tenant has made its own inspection
of the Premises and is not relying on any representation of Landlord with
respect thereto. Neither Landlord nor Agent shall be obligated to make any
repairs, replacements or improvements of any kind or nature to the Premises
(whether structural or nonstructural and whether or not involving the roof of
the Building, the Building's HVAC (defined below) system, the Premises' parking
lot, or any other component of the Premises) in connection with, or in
consideration of, this Lease, except (a) as set forth in Section 17 and (b) with
respect to any repairs and improvements expressly and specifically described in
Exhibit "C" attached hereto ("Work Items"), which items Landlord shall complete
at its sole cost and expense prior to the Commencement Date to the reasonable
satisfaction of Tenant and (c) as set forth in Paragraph F of Exhibit F.
Landlord agrees to enforce, or cause Agent to enforce, upon Tenant's request,
all manufacturer's or contractor's warranties, if any, given in connection with
the Work Items.
5.2 Delay in Commencement. Landlord shall not be liable to Tenant if
Landlord does not deliver possession of the Premises to Tenant on the
Commencement Date. The obligations of Tenant under the Lease shall not thereby
be affected, except that the Commencement Date shall be delayed until Landlord
delivers possession of the Premises to Tenant, and the Lease Term shall be
extended by a period equal to the number of days of delay in delivery of
possession of the Premises to Tenant, plus the number of days necessary to end
the Lease Term on the last day of a month. Notwithstanding anything contained in
this Section 5.2 to the contrary, in the event that Landlord fails to deliver
possession of the Premises to Tenant in the condition required herein, with
Landlord's Improvements substantially completed, on or before the date which is
sixty (60) days after the scheduled Commencement Date, then Tenant shall have
the right, as its sole remedy therefor, to terminate this Lease ab initio by
giving written notice of such termination at any time thereafter and prior to
the date on which such possession is actually delivered to Tenant by Landlord;
provided, however, that such sixty (60) day period shall be extended for any
delays which may be caused by the action or inaction of Tenant, or acts of God.
<PAGE>
Section 6: SUBORDINATION; NOTICES TO SUPERIOR LESSORS AND MORTGAGEES; ATTORNMENT
6.1 Subordination of Lease. This Lease, and all rights of Tenant hereunder,
are subject and subordinate to all ground leases of the Premises now or
hereafter existing and to all mortgages or trust deeds or deeds of trust (all of
which are hereafter referred to collectively as "Mortgages"), that may now or
hereafter affect or encumber all or any portion of Landlord's interest in the
Premises. This subordination shall apply to each and every advance made, or to
be made, under such Mortgages; to all renewals, modifications, replacements and
extensions of such Mortgages; and to "spreaders" and consolidations of such
Mortgages. This Section 6.1 shall be self-operative and no further instrument of
subordination shall be required; however, in confirmation of such subordination,
Tenant shall from time to time execute, acknowledge and deliver any instrument
that Landlord may from time to time reasonably require in order to evidence or
confirm such subordination. If Tenant fails to execute, acknowledge or deliver
any such instrument within twenty (20) days after request therefor, and Tenant
fails to notify Landlord within such twenty (20) day period of when such
delivery will be made, Tenant hereby irrevocably constitutes and appoints
Landlord as Tenant's attorney-in-fact, which appointment is coupled with an
interest, to execute and deliver any such instruments for and on behalf of
Tenant. Tenant acknowledges that this Lease has been (and, in the future, may
be) assigned by Landlord to a Superior Mortgagee (defined below) as additional
collateral security for the loans secured by the Superior Mortgage (defined
below) held by such Superior Mortgagee. Any ground lease to which this Lease is
subject and subordinate is hereinafter referred to as a "Superior Lease," the
lessor under a Superior Lease is hereinafter referred to as a "Superior Lessor,"
and the lessee thereunder, a "Superior Lessee"; and any Mortgage to which this
Lease is subject and subordinate is hereinafter referred to as a "Superior
Mortgage," and the holder of a Superior Mortgage is hereinafter referred to as a
"Superior Mortgagee." Notwithstanding the foregoing, this Lease may be made
senior to the lien of any Superior Mortgage, if and only if the Superior
Mortgagee thereunder so requests. Notwithstanding the foregoing, so long as
Tenant is not in default hereunder, Tenant's possession of the Premises pursuant
to the terms of this Lease shall not be disturbed.
6.2 Notice in the Event of Default. In the event that Landlord breaches or
otherwise fails to timely perform any of its obligations under this Lease,
Tenant shall give written notice of such alleged breach or default to Landlord
and to each Superior Mortgagee and Superior Lessor whose name and address shall
previously have been furnished, in writing, to Tenant, whereupon any or all of
Landlord, a Superior Mortgagee or Superior Landlord or may remedy or cure such
breach or default within thirty (30) days following the giving of such notice or
immediately in the event of an emergency; provided, however, that said thirty
(30)-day cure period shall be automatically extended in the event that the
breach or default cannot, by its nature, be cured within thirty (30) days and
one or more of Landlord, the Superior Mortgagee or the Superior Lessor is
diligently proceeding to cure said default. Landlord warrants and represents to
Tenant that as of the date hereof there are no Mortgages encumbering the
Premises or Landlord's interest therein. In the event that the obligations of
the Landlord under this Lease are not performed by Landlord, any Superior
Mortgagee or any Superior Lessor within the time limits specified in this
Section 6.2, then Tenant, at its option, and in addition to any other remedy
which Tenant may have at law or in equity, upon written notice thereof to
Landlord and each Superior Mortgagee and Superior Lessor, shall have the right
to perform such obligations and to charge Landlord for all reasonable
out-of-pocket expenses incurred by Tenant in so doing; and, so long as there is
not any Superior Mortgagee or Superior Lessor then existing, and Tenant is not
in default itself under this Lease, Tenant shall have the right to deduct such
expenses from the rental payments next due to Landlord under this Lease.
<PAGE>
6.3 Successor Landlord. If any Superior Lessor or Superior Mortgagee shall
succeed to the rights of Landlord hereunder, then, at the request of such party
(hereinafter referred to as "Successor Landlord"), Tenant shall attorn to and
recognize each Successor Landlord as Tenant's landlord under this Lease and
shall promptly execute and deliver any instrument such Successor Landlord may
reasonably request to further evidence such attornment. Tenant hereby
acknowledges that in the event of such succession, then from and after the date
on which the Successor Landlord acquires Landlord's rights and interest under
this Lease (the "Succession Date"), the rights and remedies available to Tenant
under this Lease with respect to any obligations of any Successor Landlord shall
be limited to the equity interest of the Successor Landlord in the Premises; and
the Successor Landlord shall not (a) be liable for any act, omission or default
of Landlord or other prior lessor under this Lease if and to the extent that
such act, omission or default occurs prior to the Succession Date; (b) be
required to pay any amounts to Tenant that are due and payable, under the
express terms of this Lease, prior to the Succession Date. Additionally, from
and after the Succession Date, Tenant's obligation to pay Rent (as provided in
Sections 2 and 3 hereof) shall not be subject to any abatement, deduction,
set-off or counterclaim against the Successor Landlord that arises as a result
of, or due to, a default of Landlord or any other lessor that occurs prior to
the Succession Date. Moreover, no Successor Landlord shall be bound by any
advance payments of Rent made prior to the calendar month in which the
Succession Date occurs, nor by any Security that is not actually delivered to,
and received by, the Successor Landlord.
Section 7: QUIET ENJOYMENT
Subject to the provisions of this Lease, so long as Tenant pays all of the
Rent and performs all of its other obligations hereunder, Tenant shall not be
disturbed in its possession of the Premises pursuant to the terms of the Lease
by Landlord, Agent or any other person lawfully claiming through or under
Landlord. This covenant shall be construed as a covenant running with the land
of the Premises and is not a personal covenant of Landlord.
Section 8: ASSIGNMENT, SUBLETTING AND MORTGAGING
8.1 Prohibition. Tenant acknowledges that this Lease and the Rent due under
this Lease have been agreed to by Landlord in reliance upon Tenant's reputation
and creditworthiness and upon the continued operation of the Premises by Tenant
for the particular use set forth in Section 4 above; therefore, Tenant shall
not, whether voluntarily, or by operation of law, or otherwise: (a) assign or
otherwise transfer this Lease; (b) sublet the Premises or any part thereof, or
allow the same to be used or occupied by anyone other than Tenant; or (c)
mortgage, pledge, encumber, or otherwise hypothecate this Lease or the Premises,
in any manner whatsoever, without in each instance obtaining the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed. Any purported assignment, mortgage, transfer, pledge or sublease made
without the prior written consent of Landlord shall be absolutely null and void
and of no legal force or effect. No assignment of this Lease shall be effective
and valid unless and until the assignee executes and delivers to Landlord any
and all documentation reasonably required by Landlord in order to evidence
assignee's assumption of all obligations of Tenant hereunder. Any consent by
Landlord to a particular assignment, sublease or mortgage shall not constitute
consent or approval of any subsequent assignment, sublease or mortgage, and
Landlord's written approval shall be required in all such instances. Any consent
by Landlord to any assignment or sublease shall not be deemed to release Tenant
from its obligation hereunder and Tenant shall remain fully liable for
performance of all obligations under this Lease. Any violation of the provisions
of this Section 8.1 shall constitute a default under this Lease.
<PAGE>
8.2 Rights of Landlord. If this Lease is assigned, or if the Premises (or
any part thereof) are sublet or used or occupied by anyone other than Tenant,
whether or not in violation of this Lease, Landlord or Agent may (without
prejudice to, or waiver of its rights), collect rent from the assignee,
subtenant or occupant. Landlord or Agent may apply the net amount collected to
the Rent herein reserved, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of this Section 8.
With respect to the allocable portion of the Premises sublet, in the event that
the total rent and any other considerations (whether cash or non-cash) received
under any sublease by Tenant, less the reasonable out-of-pocket costs incurred
by Tenant in procuring such sublease, is greater than the total Rent required to
be paid, from time to time, under this Lease, Tenant shall pay to Agent fifty
percent (50%) of such excess as received from any subtenant and such amount
shall be deemed a component of the Additional Rent due under this Lease.
8.3 Permitted Transfers. The provisions of Section 8.1(a) shall apply to a
transfer of a majority of the voting stock of Tenant or to any other change in
voting control of Tenant (if Tenant is a corporation), or to a transfer of a
majority of the general partnership interests in Tenant or managerial control of
Tenant (if Tenant is a partnership), or to any comparable transaction involving
any other form of business entity, whether effectuated in one (1) or more
transactions, as if such transfer were an assignment of this Lease; but said
provisions shall not apply to a transfer to a corporation into or with which
Tenant is merged or consolidated, or to which substantially all of Tenant's
assets are transferred, or to any corporation that controls or is controlled by
Tenant, or is under common control with Tenant, provided in any of such events
(a) the successor to Tenant has a net worth (computed in accordance with
generally accepted accounting principles), at least equal to the greater of (i)
the net worth of Tenant immediately prior to such merger, consolidation or
transfer or (ii) the net worth of Tenant on the date of this Lease and (b) proof
satisfactory to Landlord of such net worth shall have been delivered to Landlord
at least ten (10) days prior to the effective date of any such transaction. Any
such permitted transferee shall execute and deliver to Landlord any and all
documentation reasonably required by Landlord in order to evidence assignee's
assumption of all obligations of Tenant hereunder.
Section 9: COMPLIANCE WITH LAWS
If any license or permit is required for the conduct of Tenant's business
in the Premises, Tenant, at its expense, shall procure such license prior to the
Commencement Date, and shall maintain in good standing and renew such license or
permit. Tenant shall give prompt notice to Landlord of any notice it receives of
the violation of any law or requirement of any governmental or administrative
authority with respect to the Premises or the use or occupation thereof. Tenant
shall, at Tenant's expense, comply with all laws and requirements of any
governmental or administrative authorities that impose any duty on Landlord,
Agent or Tenant arising from Tenant's actions regarding its business operations
or use of the Premises, and Tenant shall pay all expenses, fines and damages
that are imposed upon any or all of Landlord, Agent, any Superior Lessee,
Superior Lessor or Superior Mortgagee, by reason or arising out of Tenant's
failure to fully and promptly comply with and observe the provisions of this
Section.
Section 10: INSURANCE
10.1 Tenant Activities. Tenant shall not violate, or permit the violation
of, any reasonable condition imposed by any insurance policy issued in respect
of the Premises and shall not do, or permit anything to be done, or keep or
permit anything to be kept in the Premises, that would: (a) subject any or all
of Landlord, Agent, any Superior Lessor, any Superior Lessee or any Superior
Mortgagee to any liability or responsibility for personal injury or death or
property damage; (b) result in insurance companies of good standing refusing to
insure (or imposing special conditions on insuring) any or all of the Premises
or the property therein, in amounts reasonably satisfactory to Landlord; or (c)
result in the cancellation of (or the assertion of any defense by the insurer,
in whole or in part, to claims under) any policy of insurance with respect to
any or all of the Premises or the property therein.
<PAGE>
10.2 Insurance to be Maintained by Tenant. Tenant shall, at its sole cost
and expense, at all times during the Term (and any extensions thereof) obtain
and pay for and maintain in full force and effect the insurance policy or
policies described in Exhibit D attached hereto. Certificates of all insurance
policies required pursuant to this Lease (or certificates thereof, in form and
substance acceptable to Landlord), shall be delivered to Landlord not less than
ten (10) days prior to the Commencement Date. If Tenant fails to submit such
policies or certificates to Landlord within the specified time, or otherwise
fails to obtain and maintain insurance coverage in accordance with this section
10.2, then Landlord, at Landlord's sole option, upon at least twenty-four (24)
hours prior notice to Tenant, may, but shall not be obligated to, procure such
insurance on behalf of, and at the expense of, Tenant; provided, however, that
the cost of such insurance shall be a market rate. Tenant shall reimburse
Landlord for such amounts upon demand, it being understood that any such sums
for which Tenant is required to reimburse Landlord shall constitute Additional
Rent.
10.3 Waiver of Right of Recovery. None of Landlord, Agent or Tenant shall
be liable to one another [or to any insurance company (by way of subrogation of
otherwise) insuring any such party] for any loss or damage to the Premises, the
structure of the buildings located thereon, other tangible property located on
the Premises, or any resulting loss of income, or losses under workers'
compensation laws and benefits, despite the fact that such loss or damage might
have been occasioned by the negligence or misconduct of such party, its agents
or employees, provided and to the extent that any such loss or damage would be
covered by insurance that the party suffering the loss is required to maintain
or does maintain pursuant to the terms of this Lease. The failure of any party
to insure its property shall not void this waiver. Each of Landlord, Agent and
Tenant shall secure an appropriate clause in, or an endorsement upon, each
insurance policy obtained by it and covering or applicable to the Premises and
the personal property, fixtures, and equipment located therein or thereon,
pursuant to which the insurance company consents to such waiver of right of
recovery. The waiver of right of recovery set forth above in this Section 10.3
shall extend to Landlord, Agent, Tenant, and their respective agents and
employees, and each Superior Lessor, Superior Mortgagee, and to other
appropriate parties designated by Landlord.
Section 11: ALTERATIONS
11.1 Procedural Requirements. Tenant may, from time to time, at its
expense, make alterations or improvements in and to the Premises (hereinafter
collectively referred to as "Alterations"), provided that Tenant first obtains
the written consent of Landlord in each instance. Landlord's consent to
Alterations shall not be unreasonably withheld, provided that: (a) the
Alterations are non-structural and the structural integrity of the Premises
shall not be affected; (b) the Alterations are to the interior of the Premises;
(c) the proper functioning of the mechanical, electrical, heating, ventilating,
air-conditioning ("HVAC"), sanitary and other service systems of the Premises
shall not be affected and the usage of such systems by Tenant shall not be
increased; (d) Tenant shall have appropriate insurance coverage reasonably
satisfactory to Landlord regarding the performance and installation of the
Alterations; (e) the Alterations shall conform with all other requirements of
this Lease; and (f) if such alterations cost in excess of $10,000 Tenant shall
have provided Landlord with detailed plans (the "Plans") for such Alterations in
advance of requesting Landlord's consent. Additionally, if such alterations cost
in excess of $10,000 after obtaining Landlord's preliminary consent to the
Plans, but before proceeding with any Alterations, Tenant shall, at its expense,
obtain all necessary governmental permits and certificates for the commencement
and prosecution of Alterations and shall submit to Agent, for Landlord's written
approval, working drawings, plans and specifications, and all permits for the
work to be done and Tenant shall not proceed with such Alterations until it has
received said approval which consent shall not be unreasonably withheld. If such
alterations cost in excess of $10,000 Tenant shall obtain and deliver to Agent
(if so requested) either (i) a performance bond and a labor and materials
payment bond in form satisfactory to Landlord, each in an amount equal to one
hundred fifteen percent (115%) of the estimated cost of the Alterations, or (ii)
such other security as shall be reasonably satisfactory to Landlord. After
obtaining Landlord's approval to the Alterations, Tenant shall give Landlord at
least twenty (20) days prior written notice of the commencement of any
Alterations at the Premises, and Landlord may elect to record and post notices
of non-responsibility at the Premises. Notwithstanding the foregoing, Tenant
shall have the right to make alterations costing less than $10,000 without
obtaining Landlord's consent but notice is required.
<PAGE>
11.2 Performance of Alterations. Tenant shall cause the Alterations to be
performed in compliance with all applicable permits, laws and requirements of
public authorities, and with Landlord's reasonable rules and regulations or
other reasonable restrictions that Landlord or Agent may impose on the
Alterations. Tenant shall cause the Alterations to be diligently performed in a
good and workmanlike manner, using new materials and equipment at least equal in
quality and class to the standards for the Premises established by Landlord or
Agent. Alterations in excess of $10,000 shall be performed by contractors first
approved by Landlord, and Tenant's agents, contractors, workmen, mechanics,
suppliers and invitees shall work in harmony, and not interfere with, Landlord
and its agents and contractors (if any). Tenant shall obtain all necessary
permits and certificates for final governmental approval of the Alterations and
shall provide Landlord for alterations in excess of $10,000 with "as built"
plans, copies of all construction contracts, governmental permits and
certificates and proof of payment for all labor and materials, including,
without limitation, copies of paid invoices and final lien waivers.
11.3 Lien Prohibition. Tenant shall pay when due all claims for labor and
material furnished to the Premises in connection with the Alterations. Tenant
shall not permit any mechanics or materialmen's liens to attach to the Premises
or Tenant's leasehold estate, subject to Tenant's right to contest the lien as
long as the lien amount is deposited with Landlord to cure the lien in case of a
loss or Tenant bonds over such lien. Tenant, at its expense, shall procure the
satisfaction or discharge of record of all such liens and encumbrances within
fifteen (15) days after the filing thereof, subject to Tenant's right to contest
the lien as long as the lien amount is deposited with Landlord to cure the lien
in case of a loss or Tenant bonds over such lien. In the event Tenant has not so
performed, Landlord may, at its option, pay and discharge such liens and Tenant
shall be responsible to reimburse Landlord, on demand, for all reasonable costs
and expenses incurred in connection therewith, together with interest thereon at
the rate set forth in Section 21.3 below, which expenses shall include
reasonable fees of attorneys of Landlord's choosing, and any costs in posting
bond to effect discharge or release of the lien as an encumbrance against the
Premises. Any reasonable sums due from Tenant pursuant to the preceding sentence
shall constitute Additional Rent under this Lease.
Section 12: LANDLORD'S AND TENANT'S PROPERTY
12.1 Landlord's Property. Subject to Section 12.2 below, all fixtures,
machinery, equipment, improvements and appurtenances attached to, or built into,
the Premises at the commencement of, or during the Term, whether or not placed
there by or at the expense of Tenant, shall become and remain a part of the
Premises; shall be deemed the property of Landlord (the "Landlord's Property"),
without compensation or credit to Tenant; and shall not be removed by Tenant
unless Landlord requests their removal. Further, any personal property in the
Premises on the Commencement Date, movable or otherwise, unless installed and
paid for by Tenant, shall be and shall remain the property of Landlord and shall
not be removed by Tenant. In no event shall Tenant remove any of the following
materials or equipment without Landlord's prior written consent: any power
wiring or power panels, lighting or lighting fixtures, wall or window coverings,
carpets or other floor coverings, heaters, air conditioners or any other heating
or air conditioning equipment, fencing or security gates, or other similar
building operating equipment and decorations.
12.2 Tenant's Property. All movable non-structural partitions, business and
trade fixtures, machinery and equipment, communications equipment and office
equipment, whether or not attached to, or built into, the Premises, which are
installed in the Premises by, or for the account of, Tenant without expense to
Landlord and that can be removed without structural damage to the Premises, and
all furniture, furnishings and other articles of movable personal property owned
by Tenant and located in the Premises (collectively, the "Tenant's Property")
shall be and shall remain the property of Tenant and may be removed by Tenant at
any time during the Term, provided Tenant repairs or pays the cost of repairing
any damage to the Premises resulting from the installation and/or removal
thereof.
<PAGE>
12.3 Removal of Tenant's Property. At or before the Expiration Date, or the
date of any earlier termination, Tenant, at its expense, shall remove from the
Premises all of Tenant's Property (except such items thereof as Landlord shall
have expressly permitted, in writing, to remain, which property shall become the
property of Landlord), and Tenant shall repair any damage to the Premises
resulting from any installation and/or removal of Tenant's Property. Any other
items of Tenant's Property that shall remain in the Premises after the
Expiration Date, or following an earlier termination date, may, at the option of
Landlord, be deemed to have been abandoned, and in such case, such items may be
retained by Landlord as its property or be disposed of by Landlord, in
Landlord's sole and absolute discretion and without accountability, at Tenant's
expense. Notwithstanding the foregoing, if Tenant is in default under the terms
of this Lease, it may remove Tenant's Property from the Premises only upon the
express written directions of Landlord. Notwithstanding anything contained in
this Section 12 to the contrary, Landlord may not require Tenant to remove any
of Landlord's Property at or before the Expiration Date or any earlier
termination date unless Landlord has notified Tenant at the time of Landlord's
approval of the installation and/or construction of the same that such
Landlord's Property may be subject to such removal requirement.
Section 13: REPAIRS AND MAINTENANCE
13.1 Tenant Repairs and Maintenance. Except as specifically provided in
Section 13.3 hereof and in Paragraph F of Exhibit F attached hereto, Tenant
shall, at its expense, throughout the Term, maintain and preserve, in the
existing condition, on the commencement date, the Premises, the fixtures and
appurtenances therein, reasonable wear and tear excepted. Tenant shall also be
responsible for all structural and non-structural repairs and replacements,
interior and exterior, ordinary and extraordinary, in and to the Premises and
the facilities and systems thereof (including, but not limited to, the roof, the
Premises' parking lot, and the electrical, mechanical, HVAC, and plumbing
systems), subject to Landlord's repair and reimbursement obligations under
Section 13.3 hereof and under said Paragraph F. Tenant shall have no obligation
to enter into a preventative maintenance and service contract for maintenance of
the HVAC systems of the Premises, provided Tenant sends a letter to Landlord at
least once every six (6) months during the Term stating that the HVAC systems
have been serviced. Without limiting the generality of the foregoing, Tenant, at
its expense, shall promptly replace or repair all, damaged, or broken doors and
glass in and about the Premises and floor coverings in the Premises and repair
and maintain all sanitary and electrical fixtures therein; provided, however,
that all replacement materials and methods of replacement shall be approved in
writing by Landlord prior to installation. Any repairs or replacements required
to be made by Tenant to the mechanical, electrical, sanitary, HVAC, or other
systems of the Premises that shall cost in excess of $10,000 shall be performed
by appropriately licensed contractors approved by Landlord, which approval shall
not be unreasonably withheld. All such repairs or replacements shall be subject
to the supervision and control of Landlord or Agent, and all repairs and
replacements shall be made with materials of equal or better quality than the
items being repaired or replaced.
13.2 Tenant Equipment. Tenant shall not place a load upon any floor of the
Premises that exceeds either the load per square foot that such floor was
designed to carry or that which is allowed by law. Business machines and
mechanical equipment belonging to Tenant that cause noise or vibrations that may
be transmitted to the structure of the Premises to such a degree as to be
unreasonably disruptive shall, at Tenant's expense, be placed and maintained by
Tenant in settings or cork, rubber or spring-type vibration eliminators
sufficient to eliminate such noise or vibration.
13.3 Landlord's Repair Obligations. Notwithstanding anything contained in
this Section 13 to the contrary, Landlord shall be responsible for all
replacements or improvements to the Premises, the cost of which must be
capitalized for income tax purposes, which are necessary for the proper
operation and maintenance of the Premises and which are made in the last five
(5) years of the Term ("Landlord's Work"). Landlord's Work shall be made by
Landlord, but Tenant shall reimburse Landlord for a portion of the reasonable
expenses incurred by Landlord in doing so, as additional rent due under this
Lease, within thirty (30) days after Tenant's receipt of Landlord's statement
therefor, with Tenant's share of such expenses to be equal to a fraction thereof
in which the numerator is the number of months (full or partial) remaining in
the Term as of the date Landlord's Work is completed and the denominator of
which is the number of months in the useful life of Landlord's Work, according
to generally accepted accounting principals.
<PAGE>
Section 14: UTILITIES
14.1 Purchasing Utilities. Tenant shall purchase all utility services from
the utility or municipality providing such service; shall provide for scavenger,
cleaning and extermination services; and shall pay for such services when
payments are due. Tenant shall be solely responsible for the repair and
maintenance of any meters necessary in connection with such services.
14.2 Use of Electrical Energy by Tenant. Tenant's use of electrical energy
in the Premises shall not, at any time, exceed the capacity of (i) any of the
electrical conductors and equipment in or otherwise servicing the Premises; or
(ii) the Premises' heating, ventilating and air-conditioning ("HVAC") systems.
Section 15: LANDLORD'S RIGHTS
15.1 Landlord's Rights of Access. Upon reasonable prior notice to Tenant,
Landlord, Agent and their respective agents, employees and representatives shall
have the right to enter and/or pass through the Premises at any time or times
(a) to examine and inspect the Premises and to show them to actual and
prospective Superior Parties or prospective purchasers or mortgagees of the
Premises or providers of capital to Landlord and its affiliates and all
consultants and advisors relating thereto; and (b) to make such repairs,
alterations, additions and improvements in or to the Premises or its facilities
and equipment as Landlord is required or desires to make. Landlord and Agent
shall be allowed to take all materials into and upon the Premises that may be
required in connection therewith, without any liability to Tenant and without
any reduction or modification of Tenant's covenants and obligations hereunder.
During the period of six (6) months prior to the Expiration Date (or at any
time, if Tenant has vacated or abandoned the Premises or is otherwise in default
under this Lease), Landlord and its agents may exhibit the Premises to
prospective tenants. In the exercise of each of the foregoing rights, Landlord
shall give Tenant reasonable prior notice of its entry, except in the case of
emergency, and Landlord shall not unreasonably interfere with Tenant's business
operations. Nothing set forth above implies obligations of improvement beyond
the Work Items per Exhibit C.
15.2 Other Landlord Rights. Landlord and Agent shall have the following
rights exercisable, without notice and without liability to Tenant, for damage
or injury to persons, property or business and without being deemed an eviction
or disturbance of Tenant's use or possession of the Premises or giving rise to
any claim for setoff or abatement of Rent so long as such is performed in
accordance with the terms of the lease: (i) to designate and/or approve, prior
to installation, all types of signs; (ii) to sell or otherwise transfer the
Premises and assign and pass through all of Landlord's obligations hereunder to
the new owner; (iii) to have pass keys, access cards, or both, to the Premises;
and (iv) to decorate, remodel, repair, alter or otherwise prepare the Premises
for reoccupancy at any time after Tenant vacates or abandons the Premises for
more than thirty (30) consecutive days or with no intention of reoccupying the
Premises.
Section 16: NON-LIABILITY AND INDEMNIFICATION
16.1 Non-Liability. None of Landlord, Agent, Landlord Affiliates, any other
managing agent, Superior Parties, or their respective affiliates, owners,
partners, directors, officers, agents and employees shall be liable to Tenant
for any loss, injury, or damage, to Tenant or to any other person, or to its or
their property, irrespective of the cause of such injury, damage or loss, unless
caused by, or resulting from, the negligence of Landlord, Agent or their
respective agents, servants or employees in the operation or maintenance of the
Premises (subject, however, to the doctrine of comparative negligence in the
event of negligence on the part of Tenant or any of its contractors). Further,
none of Landlord, Agent, any other managing agent, Superior Parties, or their
respective partners, directors, officers, agents and employees shall be liable
(a) for any such damage caused by other persons in, upon or about the Premises,
or caused by operations in construction of any private, public or quasi-public
work; or (b) with respect to matters for which Landlord is liable, for
consequential or indirect damages purportedly arising out of any loss of use of
the Premises or any equipment or facilities therein by Tenant or any person
claiming through or under Tenant.
<PAGE>
16.2 Tenant Indemnification. Tenant hereby indemnifies, defends, and holds
Landlord and all Landlord Affiliates harmless from and against any and all
claims, judgments, liens, causes of action, liabilities, damages, costs, losses
and expenses (including, but not limited to reasonable legal, engineering and
consulting fees of engineers, attorneys and consultants selected by Landlord)
arising from or in connection with (a) the conduct or management of the Premises
or any business therein, or any work or Alterations done, or any condition
created (other than by Landlord) in or about the Premises during either or both
of the Term and the period of time, if any, prior to the Commencement Date that
Tenant may have been given access to the Premises, including any and all
mechanics and other liens and encumbrances; (b) any act, omission or negligence
of Tenant or any of its subtenants or licensees or their partners, directors,
officers, agents, employees, invitees or contractors; (c) any accident, injury
or damage whatsoever (unless caused by Landlord's negligence) occurring in, at
or upon the Premises; (d) any breach or default by Tenant in the full and prompt
payment and performance of Tenant's obligations under this Lease; (e) any breach
by Tenant of any of its warranties and representations under this Lease; and (f)
any actions necessary to protect Landlord's interest under this Lease in a
bankruptcy proceeding or other proceeding under the Bankruptcy Code. In case any
action or proceeding is brought against Landlord or any Landlord Affiliate by
reason of any such claim, Tenant, upon notice from any or all of Landlord, Agent
or any Superior Party, shall resist and defend such action or proceeding by
counsel reasonably satisfactory to, or selected by, Landlord or such Superior
Lessor or Superior Mortgagee. Landlord agrees that under no circumstances shall
Tenant be liable to Landlord or any third party for any loss or, destruction of,
damage to or storage of any property; including not limited to Landlord's
Property. With respect to matters for which Tenant is liable under this Lease,
Tenant shall not be responsible for consequential or indirect damages
purportedly arising out of any loss of use of the Premises or any equipment or
facilities therein by Landlord or any person claiming through Landlord. Tenant's
obligations under this Section 16.2 shall survive the termination of this Lease
for any reason.
16.3 Force Majeure. The obligations of Tenant hereunder shall not be
affected, impaired or excused, and Landlord shall have no liability whatsoever
to Tenant, with respect to any act, event or circumstance arising out of (a)
Landlord's failure to fulfill, or delay in fulfilling any of its obligations
under this Lease by reason of labor dispute, governmental preemption of property
in connection with a public emergency or shortages of fuel, supplies, or labor,
or any other cause, whether similar or dissimilar, beyond Landlord's reasonable
control; or (b) any failure or defect in the supply, quantity or character of
utilities furnished to the Premises, or by reason of any requirement, act or
omission of any public utility or others serving the Premises beyond Landlord's
reasonable control. Tenant shall not hold Landlord or Agent liable for any
latent defect in the Premises, nor shall Landlord be liable for injury or damage
to person or property caused by fire, or theft, or resulting from the operation
of heating or air conditioning or lighting apparatus, or from falling plaster,
or from steam, gas, electricity, water, rain, snow, ice, or dampness, that may
leak or flow from any part of the Premises, or from the pipes, appliances or
plumbing work of the same. Tenant agrees that under no circumstances shall
Landlord or Agent be liable to Tenant or any third party for any loss of,
destruction of, damage to or shortage of any property; including, but not
limited to, Tenant's Property.
<PAGE>
The obligations of Landlord hereunder shall not be affected, impaired or
excused, and Tenant shall have no liability whatsoever to Landlord, with respect
to any act, event or circumstance arising out of (a) Tenant's failure to
fulfill, or delay in fulfilling any of its obligations under this Lease by
reason of labor dispute, governmental preemption of property in connection with
a public emergency or shortages of fuel, supplies, or labor, or any other cause,
whether similar or dissimilar, beyond Tenant's reasonable control; or (b) any
failure or defect in the supply, quantity or character of utilities furnished to
the Premises, or by reason on any requirement, act or omission of any public
utility or others serving the Premises beyond Tenant's reasonable control.
Landlord shall not hold Tenant liable for any defect in the Premises, nor shall
Tenant be liable for injury or damage to person or property caused by fire, or
theft, or resulting from the operation heating or air conditioning or lighting
apparatus, or from falling plaster, or from steam, gas, electricity, water,
rain, snow, ice, or dampness, that may leak or flow from any part of the
Premises, or from the pipes appliances or plumbing work of the same.
16.4 Limitation of Liability. Notwithstanding anything to the contrary
contained in this Lease, the liability of Landlord (and of any Successor
Landlord hereunder) to Tenant shall be limited to the interest of Landlord in
the Premises, and Tenant agrees to look solely to Landlord's interest in the
Premises for the recovery of any judgment or award against Landlord, it being
intended that Landlord shall not be personally liable for any judgment or
deficiency. In addition, Tenant acknowledges that Agent is acting solely in its
capacity as agent for Landlord and, shall not be liable for any obligations,
liabilities, losses or damages arising out of or in connection with this Lease,
all of which are expressly waived by Tenant.
16.5 Landlord Indemnification. Landlord hereby indemnifies, defends and
holds Tenant harmless from and against any and all claims, judgments, liens,
causes of action, liabilities, damages, cost, losses and expenses (including,
but not limited to reasonable legal fees) arising from or in connection with (a)
any condition created by Landlord in or about the Premises; (b) any accident,
injury or damage caused directly by the negligence of Landlord or its agents
occurring in, at or upon the Premises; (c) any breach or default by Landlord in
the full and prompt payment and performance of Landlord's obligations under this
Lease; and (d) any breach by Landlord of any of its warranties or
representations under this Lease. In case any action or proceeding is brought
against Tenant by reason of any such claim, Landlord, upon receipt of written
notice demanding the same from Tenant, shall exist and defend such action or
proceeding by counsel reasonably satisfactory to Tenant. Landlord's obligations
under this Section 16.5 shall survive the termination of this Lease for any
reason.
Section 17: DAMAGE OR DESTRUCTION
17.1 Notification. Tenant shall give prompt notice to Landlord and Agent of
(a) any fire or other material casualty in the Premises, (b) any material damage
to, or defect in, the Premises, for the repair of which Landlord or Agent might
be responsible, and (c) any material damage to or defect in any part or
appurtenance of the Premises' sanitary, electrical, HVAC, elevator or other
systems located in or passing through the Premises or any part thereof.
<PAGE>
17.2 Repair Provisions. Subject to the provisions of Section 17.4 below, if
the Premises are damaged by fire or other insured casualty, Landlord shall
repair or cause Agent to repair the damage and restore and rebuild the Premises
(except for Tenant's Property) with reasonable dispatch after (a) notice to it
of the damage or destruction and (b) the collection of the insurance proceeds
attributable to such damage, and Tenant shall repair the damage to and restore
and repair Tenant's Property, with reasonable dispatch after such damage or
destruction. Such work by Tenant shall be deemed Alterations for the purposes of
this Lease.
17.3 Rental Abatement. If (a) the Premises are damaged by fire or other
casualty thereby causing the Premises to be inaccessible or (b) the Premises are
partially damaged by fire or other casualty, the Rent shall be abated in the
amount of any rent loss insurance proceeds actually collected by Landlord from
Tenant's insurer on account of such damage.
17.4 Total Destruction. If the Premises shall be totally destroyed by fire
or other casualty, or if the Premises shall be so damaged by fire or other
casualty that (in the opinion of a reputable contractor or architect reasonably
designated by Landlord) (i) its repair or restoration requires more than one
hundred eighty (180) days or (ii) such repair or restoration requires the
expenditure of more than fifty percent (50%) of the full insurable value of the
Premises immediately prior to the casualty or (iii) the damage is less than the
amount stated in (ii) above, but occurs during the last two (2) years of Lease
Term, Landlord and Tenant shall each have the option to terminate this Lease
within five (5) days after said contractor or architect delivers written notice
of its opinion to Landlord and Tenant, but in all events prior to the
commencement of any restoration of the Premises by Landlord. In such event, the
termination shall be effective as of the date of the casualty. If (A) any
Superior Party or other party entitled to the insurance proceeds fails to make
such proceeds available to Landlord in an amount sufficient for restoration of
the Premises, or (B) the issuer of any casualty insurance policies on the
Premises fails to make available to Landlord sufficient proceeds for restoration
of the Premises, then Landlord may, at Landlord's sole option, terminate this
Lease, effective as of the date of such casualty, by giving Tenant written
notice to such effect within thirty (30) days after the date of the casualty.
For purposes of this Section 17.4 only, "full insurable value" shall mean
replacement cost, less the cost of footings, foundations and other structures
below grade.
17.5 Repair or Restoration. Subject to the provisions of Section 17.4
above, Tenant shall not be entitled to terminate this Lease and no damages,
compensation or claim shall be payable by Landlord for purported inconvenience,
loss of business or annoyance arising from any repair or restoration of any
portion of the Premises pursuant to this Section. Landlord or Agent shall use
its diligent, good faith efforts to make such repair or restoration promptly and
in such manner as not to unreasonably interfere with Tenant's use and occupancy
of the Premises, but Landlord or Agent shall not be required to do such repair
or restoration work except during normal business hours of business days.
17.6 Liability of Tenant. Notwithstanding any of the foregoing provisions
of this Section, if by reason of any act or omission on the part of Tenant or
any of its subtenants or its or their partners, directors, officers, servants,
employees, agents, or contractors, Landlord, any Superior Party, or other
appropriate party shall be unable to collect all of the insurance proceeds
(including, without limitation, rent insurance proceeds) applicable to damage or
destruction of the Premises by fire or other casualty (the "Insurance
Proceeds"), then, without prejudice to any other remedies that may be available
against Tenant, there shall be no abatement or reduction of the Rent
notwithstanding lack of usability. Further, and to the extent that, as a result
of or due to or because of any act or omission by any or all of Tenant, its
agents, employees, invitees and representatives, Landlord, any Superior Party or
any other appropriate party is unable to collect all of the Insurance Proceeds,
then Tenant shall be liable to Landlord for the payment of an amount equal to
that portion of the Insurance Proceeds that Landlord, any Superior Party or any
other appropriate party is unable to collect.
<PAGE>
Section 18: EMINENT DOMAIN
18.1 Total Condemnation. If, in Landlord's and Tenant's opinion, the whole
of the Premises, or if any part of the Premises that materially affects Tenant's
use and occupancy of the Premises, shall be taken by condemnation or in any
other manner for any public or quasi-public use or purpose, this Lease and the
term and estate hereby granted shall terminate as of the date of vesting of
title on such taking (herein called "Date of the Taking"), and the Rent shall be
prorated and adjusted as of such date.
18.2 Award. Landlord shall be entitled to receive the entire award or
payment in connection with any taking; provided, however, Tenant shall have the
right to separately pursue, against the condemning authority, an award in
respect of the loss, if any, to leasehold improvements or other interest of
Tenant in the Premises paid for by Tenant s well as relocation expenses, without
any credit or allowance from Landlord and further provided that such separate
award does not diminish or interfere with Landlord's pursuit of its own award.
18.3 Compensation to Tenant for Temporary Use. If the temporary use or
occupancy of all or any part of the Premises shall be taken by condemnation or
in any other manner for any public or quasi-public use or purpose during the
Term, Tenant shall be entitled, except as hereinafter set forth, to receive that
portion of the award or payment for such taking which represents compensation
for the use and occupancy of the Premises, for the taking of Tenant's Property
and for moving expenses, and Landlord shall be entitled to receive that portion
that represents reimbursement for the cost of restoration of the Premises. This
Lease shall be and remain unaffected by such taking, and Tenant shall continue
to be responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay, in full,
the Rent when due. If the period of temporary use or occupancy shall extend
beyond the Expiration Date, that part of the award that represents compensation
for the use and occupancy of the Premises (or a part thereof) shall be prorated
between Landlord and Tenant so that Tenant shall receive so much thereof as
represents the period up to and including such Expiration Date and Landlord
shall receive so much thereof as represents the period after such Expiration
Date. All monies paid as, or as part of, an award for temporary use and
occupancy for a period beyond the date to which the Rent have been paid shall be
received, held and applied by Landlord as a trust fund for payment of the Rent
becoming due.
18.4 Partial or Temporary Taking. Subject to the rights of any Superior
Mortgagee or Superior Lessor, and other parties having rights to condemnation
proceeds, in the event of any taking of less than the whole of the Premises,
which taking does not result in termination of this Lease, or in the event of a
taking for a temporary use or occupancy of all or any part of the Premises, or
other partial taking of the Premises, that does not result in a termination of
this Lease: (a) Landlord, at its expense, and provided that a condemnation award
or awards shall be sufficient for the purpose, shall proceed with reasonable
diligence to repair the remaining parts of the Premises (other than those parts
of the Premises that are Tenant's Property) to substantially their former
condition, to the extent that the same is feasible (subject to those changes
which Landlord reasonably deems desirable, and to building and other
governmental codes and regulations) and so as to constitute a complete and
tenantable Premises, and (b) Tenant, at its expense, and whether or not any
award or awards shall be sufficient for the purpose, shall proceed with
reasonable diligence to repair Tenant's Property, to substantially its former
condition, to the extent feasible, subject to such reasonable changes as
Landlord and Tenant shall agree upon, in writing. Such work by Tenant shall be
deemed Alterations. Furthermore, in the event of a partial taking of the
Premises that does not result in a termination of this Lease, the Base Rent due
hereunder shall be reduced in a proportionate amount, based upon the proportion
that the area that has been taken bears to the total area of the Premises. Such
reduction shall be effective from the date on which the partial taking occurs
until the date, if any, on which the partial taking terminates and the Premises
have been restored in accordance with the terms of this Lease.
<PAGE>
Section 19: SURRENDER AND HOLDOVER
On the last day of the Term, or upon any earlier termination of this lease,
or upon any re-entry by Landlord upon the Premises, (a) Tenant shall quit and
surrender the Premises to Landlord "broom-clean" and in good order, condition
and repair, except for ordinary wear and tear and such damage or destruction as
Landlord is required to repair or restore under this Lease, and (b) Tenant shall
remove all of Tenant's Property therefrom, except as otherwise expressly
provided in this Lease. The obligations imposed under the preceding sentence
shall survive the termination or expiration of this Lease. If Tenant remains in
possession after the Expiration Date hereof or after any earlier termination
date of this Lease or of Tenant's right to possession without the permission of
Landlord: (a) Tenant shall be deemed a tenant-at-will; (b) Tenant shall pay one
hundred fifty percent (150%) of the Rent last prevailing hereunder, and also
shall pay all direct damages sustained by Landlord, by reason of such remaining
in possession after the expiration or termination of this Lease; (c) there shall
be no renewal or extension of this Lease by operation of law; and (d) the
tenancy-at-will may be terminated upon thirty (30) days' notice from Landlord.
The provisions of this Section 19 shall not constitute a waiver by Landlord of
any re-entry rights of Landlord provided hereunder or by law.
Section 20: EVENTS OF DEFAULT
20.1 Bankruptcy of Tenant. It shall be a default by Tenant under this Lease
if Tenant makes an assignment for the benefit of creditors, or files a voluntary
petition under any state or federal bankruptcy or insolvency law, or an
involuntary petition alleging an act of bankruptcy or insolvency is filed
against Tenant under any state or federal bankruptcy or insolvency law and is
not removed within 60 days, or whenever a petition is filed by or against Tenant
under the reorganization provisions of the United States Bankruptcy Code or
under the provisions of any law or like import, or whenever a petition shall be
filed by Tenant under the arrangement provisions of the United States Bankruptcy
Code or similar law, or whenever a receiver of Tenant, or of, or for, the
property of Tenant shall be appointed, or Tenant admits it is insolvent.
20.2 Default Provisions. Each of the following shall constitute a default
by Tenant under this Lease: (a) if Tenant fails to pay Rent or any other payment
when due hereunder and fails to cure such breach within five (5) days after
receipt of Landlord's written notice thereof (provided, however, that such
notice from Landlord shall not be a condition precedent to declaring such
default by Tenant after Landlord has given such notice twice in any twelve (12)
month period); or (b) if Tenant fails, whether by action or inaction, to timely
comply with, or satisfy, any or all of the obligations imposed on Tenant under
this Lease for a period of thirty (30) days after Landlord's delivery to Tenant
of written notice of such default under this subsection 20.2(b); provided,
however, that if the default cannot, by its nature, be cured within such thirty
(30) day period, but Tenant commences and diligently pursues a cure of such
default promptly within the initial thirty (30) day cure period, then Landlord
shall not exercise its remedies under Section 21 unless such default remains
uncured for more than sixty (60) days after Landlord's initial delivery to
Tenant of notice of such default.
Section 21: REMEDIES
21.1 Landlord's Cure Rights Upon Default of Tenant. If Tenant defaults in
the performance of any of its obligations under this Lease, Landlord, without
thereby waiving such default, may (but shall not be obligated to) perform the
same for the account, and at the expense of, Tenant, upon compliance with any
notice requirements and cure periods set forth in Subsection 20.2.
<PAGE>
21.2 Landlord's Remedies. In the event of any default by Tenant under this
Lease, Landlord, at its option, and after the proper notice and cure period, if
any, as provided in Section 20.2 has expired, without further notice or demand
to Tenant, may, in addition to all other rights and remedies provided in this
Lease, or otherwise at law or in equity: (a) terminate this Lease and Tenant's
right of possession of the Premises, and recover all damages to which Landlord
is entitled under law, specifically including, without limitation, the present
value at seven percent (7%) of the accelerated Rent attributable to the balance
of the Term, and all Landlord's reasonable expenses of reletting the Premises
(including repairs, and improvements consistent with the current use, legal fees
and brokerage commissions less the reasonable rental value of the Premises for
the balance of the term), or (b) terminate Tenant's right of possession of the
Premises without terminating this Lease; provided, however, that Landlord shall
use its reasonable efforts, whether Landlord elects to proceed under Subsections
(a) or (b) above, to relet the Premises, or any part thereof for the account of
Tenant, for such rent and term and upon such terms and conditions as are
acceptable to Landlord. If Landlord shall elect to pursue its rights and
remedies under Subsection (b), then Landlord shall at any time have the further
right and remedy to rescind such election and pursue its rights and remedies
under Subsection (a), including but not limited to such time as Landlord has
obtained a tenant to relet the Premises, which, in Landlord's reasonable
judgment, is a suitable tenant. For purposes of such reletting, Landlord is
authorized to decorate, repair, alter and improve the Premises to the extent
deemed necessary by Landlord, in its sole and absolute discretion. If Landlord
fails to relet the Premises or if the Premises are relet and a sufficient sum is
not realized therefrom, after payment of all Landlord's expenses of reletting
(including repairs, alterations, improvements, additions, decorations, legal
fees and brokerage commissions), to satisfy the payment, when due, of Rent
reserved under this Lease for any monthly period, then Tenant shall pay to
Landlord a sum equal to the present value at seven percent (7%) of the
accelerated amount of Rent due under this Lease attributable to the balance of
the Term, or if the Premises have been relet, Tenant shall pay any such
deficiency monthly, less the reasonable rental value of the Premises over the
balance.. Tenant agrees that Landlord may file suit to recover any sums due to
Landlord hereunder from time to time and that such suit or recovery of any
amount due Landlord hereunder shall not be any defense to any subsequent action
brought for any amount not theretofore reduced to judgment in favor of Landlord.
In the event Landlord elects, pursuant to Subsection (b) of this Section 21.2,
to terminate Tenant's right of possession only, without terminating this Lease,
Landlord may, at Landlord's option, enter into the Premises, remove Tenant's
Property, Tenant's signs and other evidences of tenancy, and take and hold
possession thereof as provided in Section 19 hereof; provided, however, that
such entry and possession shall not terminate this Lease or release Tenant, in
whole or in part, from Tenant's obligation to pay the Rent reserved hereunder
for the full Term, or from any other obligation of Tenant under this Lease. Any
and all property that may be removed from the Premises by Landlord pursuant to
the authority of the Lease or of law, to which Tenant is or may be entitled, may
be handled, removed or stored by Landlord at the risk, cost and expense of
Tenant, and in no event or circumstance shall Landlord be responsible for the
value, preservation or safekeeping thereof. Tenant shall pay to Landlord, upon
demand, any and all reasonable expenses incurred in such removal and all storage
charges against such property so long as the same shall be in Landlord's
possession or under Landlord's control. Any such property of Tenant not retaken
from storage by Tenant within thirty (30) days after the end of the Term,
however terminated, shall be conclusively presumed to have been conveyed by
Tenant to Landlord under this Lease as in a bill of sale, without further
payment or credit by Landlord to Tenant.
<PAGE>
21.3 Additional Rights of Landlord. Any and all reasonable costs, expenses
and disbursements, of any kind or nature, incurred by Landlord or Agent in
connection with the enforcement of any and all of the terms and provisions of
this Lease, including reasonable attorneys' fees (through all appellate
proceedings), shall be due and payable (as Additional Rent) upon Landlord's
submission of an invoice therefor. All sums advanced by Landlord or Agent on
account of Tenant under this Section, or pursuant to any other provision of this
Lease, and all Rent, if delinquent or not paid by Tenant and received by
Landlord when due hereunder, shall bear interest at the rate of four percent
(4%) per annum above the "prime" or "reference" or "base" rate of interest
publicly announced as such, from time to time, by The First National Bank of
Chicago, from the due date thereof until paid, and such interest shall be and
constitute Additional Rent and be due and payable upon Landlord's or Agent's
submission of an invoice therefor. Suit or suits for the recovery of such
damages, or any installments thereof, may be brought by Landlord from time to
time at its election, and nothing contained herein shall be deemed to require
Landlord to postpone suit until the Expiration Date, nor limit or preclude
recovery by Landlord against Tenant of any sums or damages to which, in addition
to the damages particularly provided above, Landlord may lawfully be entitled by
reason of any default hereunder by Tenant. The various rights, remedies and
elections of Landlord reserved, expressed or contained herein are cumulative and
no one of them shall be deemed to be exclusive of the others or of such other
rights, remedies, options or elections as are now or may hereafter be conferred
upon Landlord by law.
21.4 Event of Bankruptcy. In addition to, and in no way limiting the other
remedies set forth herein, Landlord and Tenant agree that if Tenant ever becomes
the subject of a voluntary or involuntary bankruptcy, reorganization,
composition, or other similar type proceeding under the federal bankruptcy laws,
as now enacted or hereinafter amended, then:
(a) "Adequate assurance of future performance" by Tenant and/or any
assignee of Tenant pursuant to Bankruptcy Code Section 365 will include
(but not be limited to) payment of an additional/new security deposit in
the amount of three (3) times the then-current Rent payable hereunder.
(b) Any person or entity to which this Lease is assigned pursuant to
the provisions of the Bankruptcy Code, shall be deemed, without further act
or deed, to have assumed all of the obligations of Tenant arising under
this Lease on and after the effective date of such assignment. Any such
assignee shall, upon demand by Landlord, execute and deliver to Landlord an
instrument confirming such assumption of liability.
(c) Notwithstanding anything in this Lease to the contrary, all
amounts payable by Tenant to or on behalf of Landlord under this Lease,
whether or not expressly denominated as "Rent", shall constitute "rent" for
the purposes of Section 502(b)(6) of the Bankruptcy Code.
(d) If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other
considerations payable or otherwise to be delivered to Landlord or Agent
(including Rent and other amounts hereunder), shall be and remain the
exclusive property of Landlord and shall not constitute property of Tenant
or of the bankruptcy estate of Tenant. Any and all monies or other
considerations constituting Landlord's property under the preceding
sentence not paid or delivered to Landlord or Agent shall be held in trust
by Tenant or Tenant's bankruptcy estate for the benefit of Landlord and
shall be promptly paid to or turned over to Landlord.
<PAGE>
Section 22: BROKER
Tenant covenants, warrants and represents that the broker set forth in
Section 1.8(A) was the only broker to represent Tenant in the negotiation of
this Lease ("Tenant's Broker"). Landlord covenants, warrants and represents that
the broker set forth in Section 1.8(B) was the only broker to represent Landlord
in the negotiation of this Lease ("Landlord's Broker"). Landlord shall be solely
responsible for paying the commissions of Landlord's Broker. Each party agrees
to and hereby does defend, indemnify and hold the other harmless against and
from any brokerage commissions or finder's fees or claims therefor by a party
(other than Tenant's Broker and Landlord's Broker) claiming to have dealt with
the indemnifying party and all costs, expenses and liabilities in connection
therewith, including, without limitation, reasonable attorneys' fees and
expenses, for any breach of the foregoing. The foregoing indemnification shall
survive the termination of this Lease for any reason.
Section 23: ESTOPPEL CERTIFICATES
Either party shall, from time to time and within ten (10) days after any
request by either party, execute and deliver to either party (and to any
existing or prospective mortgage lender, ground lessor, or purchaser designated
by either party), a statement: (i) certifying that this Lease is unmodified and
in full force and effect (or if there have been modifications, that the same is
in full force and effect as modified and stating the modifications); (ii)
certifying the dates to which the Rent has been paid; (iii) stating whether
either party is in default in performance of any of its obligations under this
Lease, and, if so, specifying each such default; (iv) stating whether to either
party's knowledge any event has occurred which, with the giving of notice or
passage of time, or both, would constitute such a default, and, if so,
specifying each such event; and (v) to either party's knowledge stating whether
any rights of either party (e.g., options) have been waived. Any such statement
delivered pursuant hereto shall be deemed a representation and warranty to be
relied upon by the party requesting the certificate and by others with whom
either party may be dealing, regardless of independent investigation. Either
party also shall include in any such statements such other information
concerning this Lease as either party or Agent may reasonably request including,
but not limited to, the amount of Rent under this Lease, and whether either
party has completed all (if any) improvements to the Premises required under
this Lease.
Section 24: HAZARDOUS SUBSTANCES
24.1 Definitions. For purposes of this Section 24, "hazardous substance"
means any matter regulated under the Resources Conservation Recovery Act
("RCRA"), 42 U.S.C. Section 6901 et seq., the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"), 52 U.S.C. Section 9601 et
seq., applicable state or local law, or any substance or matter giving rise to
liability under common law theory based on nuisance or strict liability (the
foregoing laws being referred to herein as "Environmental Laws"). For purposes
of this Section 24, "Landlord's Environmental Liability" means: any and all
losses, liabilities, obligations, penalties, claims, fines, lost profits,
demands, litigation, defenses, costs, judgments, suits, proceedings, damages
(including consequential, punitive and exemplary damages), disbursements or
expenses of any kind or nature whatsoever (including attorneys' fees at trial
and appellate levels and experts' fees and disbursements and expenses incurred
in investigating, defending against, settling or prosecuting any suit,
<PAGE>
litigation, claim or proceeding) which may at any time be either directly or
indirectly imposed upon, incurred by or asserted or awarded against Landlord or
any of Landlord's parent and subsidiary corporations and their affiliates,
shareholders, directors, officers, employees, and agents in connection with or
arising from: (i) any hazardous substance used, exposed, emitted, released,
discharged, generated, manufactured, sold, transported, handled, stored,
treated, reused, presented, disposed of or recycled on, in or under all or any
portion of the Property, or any surrounding areas; (ii) any misrepresentation,
inaccuracy or breach of any warranty, covenant or agreement contained or
referred to in this Section 24; (iii) any violation, liability or claim of
violation or liability under any Environmental Laws; or (iv) the imposition of
any lien for damages caused by, or the recovery of any costs incurred for the
cleanup of, any release or threatened release of hazardous substance.
24.2 Prohibition. Tenant shall not conduct or authorize the generation,
transportation, storage, use, treatment or disposal on or in the Premises of any
hazardous substance without prior written authorization by Landlord, which
authorization may be given or withheld in Landlord's sole and absolute
discretion, and Tenant's failure to comply with the provisions of this Section
24.2 shall constitute a default under this Lease. No such purported
authorization shall be binding on Landlord unless signed by Landlord and not
solely by Agent. Notwithstanding the preceding sentence, Landlord hereby
authorizes Tenant to use and store reasonable quantities of the following in the
Premises, in accordance with all applicable laws and regulations: paints; oils;
material utilized in printing operations; and materials utilized in the normal
course of Tenant's business or in repair and maintenance of the Premises.
24.3 Permitted Activities. With respect to the activities authorized in
Section 24.2 hereof, or if Landlord expressly authorizes Tenant, in writing, to
generate, transport, store, treat or dispose of any other hazardous substance on
the Premises: (i) Tenant shall, at its own cost, comply with all laws (federal,
state or local) relating to hazardous substance, including, but not limited to,
RCRA and CERCLA; (ii) Tenant shall promptly provide Agent copies of all
communications, permits or agreements with any governmental authority or agency
(federal, state or local) or any private entity relating in any way to the
presence, release, threat of release, placement on or in the Premises, or the
generation, transportation, storage, use, treatment, or disposal at the
Premises, of any hazardous substance; (iii) Landlord, Agent and their respective
agents and employees shall have the right to enter the Premises and/or conduct
appropriate tests for the purposes of ascertaining Tenant compliance with all
applicable laws, rules or permits relating in any way to the presence of
hazardous substances on the Premises; and (iv) should Landlord reasonably
determine that there may be a violation of any applicable laws, rules or permits
relating in any way to the presence of hazardous substances on the Premises or
any portion thereof, and upon written request by Landlord or Agent, Tenant shall
provide Landlord with the results of appropriate tests of air, water or soil to
demonstrate that Tenant complies with all such laws, rules and permits.
24.4 Remedial Action. If the presence, release, threat of release,
placement on or in the Premises or any portion thereof, or the generation,
transportation, storage, use, treatment, or disposal at the Premises or any
portion thereof of any hazardous substance by Tenant or its agents or
contractors or their respective employees: (i) gives rise to liability
(including, but not limited to, a response action, remedial action, or removal
action) under RCRA, CERCLA, applicable state law, or any common law theory based
on nuisance or strict liability, (ii) pollutes, or threatens to pollute, the
environment, Tenant, at its sole cost and expense, shall promptly take any and
all remedial and removal action necessary to clean up the Premises or any
portion thereof, and mitigate exposure to liability arising from the hazardous
substance, regardless whether required by law.
<PAGE>
24.5 Indemnity and Release. Tenant shall and does hereby protect,
indemnify, defend (at trial and appellate levels and with counsel, experts and
consultants reasonably acceptable to Landlord and at Tenant's sole cost) and
hold Landlord and its Affiliates free and harmless from and against any loss,
cost or expense incurred by Landlord and resulting wholly or in part from
Tenant's breach of its obligations under this Section 24 (collectively,
"Tenant's Indemnification Obligations"). Nothing in this Section 24 or elsewhere
in this Lease contained shall obligate Tenant to indemnify Landlord from and
against any loss, cost or expense which is the direct result of the release of
any hazardous substance existing as of the date hereof in, on or about the
Premises, unless such release is caused in whole or in part by the negligence of
Tenant or its agents or contractors or their respective employees. The foregoing
indemnity and Tenant's other obligations under this Section 24 shall survive the
expiration or termination of this Lease for any reason.
24.6 Landlord's Representation and Indemnity. Tenant acknowledges that
Landlord has obtained that certain Phase I Environmental Assessment dated
February 25, 1997 prepared by Nova Environmental Services, Inc. as its Project
No. M-97-193 (the "Phase I Report") concerning the existence of and the
potential for contamination of the Premises by hazardous substances located on,
under or about the Premises, and that Tenant has received a copy of the Phase I
Report and has reviewed the same. Landlord warrants and represents to Tenant
that to the best of its knowledge and belief as of the date hereof there are no
hazardous substances present on under or about the Premises other than as
disclosed in the Phase I Report. Landlord further warrants and represents to
Tenant that Landlord has not generated, transported, stored, treated or disposed
of any hazardous substance on the Premises. Landlord hereby indemnifies and
holds Tenant harmless from and against any and all claims, actions, damages,
cost and liabilities arising directly out of (i) a breach of the foregoing
warranties and representations by Landlord, or (ii) any release of hazardous
substances existing as of the date hereof caused by the negligence of Landlord;
and this indemnity shall survive the expiration or earlier termination of this
Lease.
Section 25: MISCELLANEOUS
25.1 Merger. All prior understandings and agreements between the parties
are merged in this Lease, which alone fully and completely expresses the
agreement of the parties. No agreement shall be effective to modify this Lease,
in whole or in part, unless such agreement is in writing, and is signed by the
party against whom enforcement of said change or modification is sought.
25.2 Notices. Any notice required to be given by either party pursuant to
this Lease, shall be in writing and shall be deemed to have been properly given,
rendered or made only if personally delivered or if sent by Federal Express or
other comparable commercial overnight delivery service, addressed to the other
party at the addresses set forth below (or to such other address as Landlord or
Tenant may designate to each other from time to time by written notice), and
shall be deemed to have been given, rendered or made on the day so delivered or
on the first business day after having been deposited with the courier service:
<PAGE>
If to Landlord: First Industrial, L.P.
150 North Wacker Drive, Suite 150
Chicago, Illinois 60606
Attn: Michael W. Brennan
With a copy to: Barack Ferrazzano Kirschbaum Perlman & Nagelberg
333 West Wacker Drive
Suite 2700
Chicago, Illinois 60606
Attn: Howard Nagelberg and Suzanne Bessette-Smith
If to Tenant: Sparta Foods, Inc.
1565 First Avenue NW
New Brighton, MN 55112
Attn: Merrill Ayers
With a copy to: Fredrikson & Byron, P.A.
1100 International Centre
900 Second Avenue South
Minneapolis, MN 55402
Attn: Christopher J. Dolan
25.3 Non-Waiver. The failure of either party to insist, in any one or more
instances, upon the strict performance of any one or more of the obligations of
this Lease, or to exercise any election herein contained, shall not be construed
as a waiver or relinquishment for the future of the performance of such one or
more obligations of this Lease or of the right to exercise such election, but
the Lease shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. The receipt and acceptance by Landlord or
Agent of Rent with knowledge of breach by Tenant of any obligation of this Lease
shall not be deemed a waiver of such breach.
25.4 Legal Costs. Any party in breach or default under this Lease (the
"Defaulting Party") shall reimburse the other party (the "Nondefaulting Party")
upon demand for any costs or expenses that the Nondefaulting Party incurs in
connection with the breach or default, regardless whether suit is commenced or
judgment entered. Such costs shall include legal fees and costs incurred for the
negotiation of a settlement, enforcement of rights or otherwise. Furthermore, in
the event of litigation, the court in such action shall award to the party in
whose favor a judgment is entered, a reasonable sum as attorneys' fees and
costs, which sum shall be paid by the losing party. Tenant shall pay Landlord's
reasonable attorneys' fees incurred in connection with Tenant's request for
Landlord's consent under provisions of this Lease governing assignment and
subletting, or in connection with any other act which Tenant proposes to do and
which requires Landlord's consent, provided that such fees shall not exceed
$200.00 with respect to any such consent of Landlord.
25.5 Parties Bound. Except as otherwise expressly provided for in this
Lease, this Lease shall be binding upon, and inure to the benefit of, the
successors and assignees of the parties hereto. Tenant hereby releases Landlord
named herein from any obligations of Landlord for any period subsequent to the
conveyance and transfer of Landlord's ownership interest in the Premises. In the
event of such conveyance and transfer, Landlord's obligations shall thereafter
be binding upon each transferee (whether Successor Landlord or otherwise). No
obligation of either party shall arise under this Lease until the instrument is
signed by, and delivered to, both Landlord and Tenant.
<PAGE>
25.6 Recordation of Lease. Tenant shall not record or file this Lease (or
any memorandum hereof) in the public records of any county or state.
25.7 Survival of Obligations. Upon the expiration or other termination of
this Lease, neither party shall have any further obligation or liability to the
other except as otherwise expressly provided in this Lease and except for such
obligations as, by their nature or under the circumstances, can only be, or by
the provisions of this Lease, may be performed after such expiration or other
termination. The provisions of Sections 2, 3, 12, 16, 19, 22, and 24 shall
survive any termination of this Lease.
25.8 Governing Law; Construction. This Lease shall be governed by and
construed in accordance with the laws of the state in which the Premises are
located. If any provision of this Lease shall be invalid or unenforceable, the
remainder of this Lease shall not be affected but shall be enforced to the
extent permitted by law. The captions, headings and titles in this Lease are
solely for convenience of reference and shall not affect its interpretation.
This Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be drafted. Each
covenant, agreement, obligation, or other provision of this Lease to be
performed by either party, shall be construed as a separate and independent
covenant of such party, not dependent on any other provision of this Lease. All
terms and words used in this Lease, regardless of the number or gender in which
they are used, shall be deemed to include any other number and any other gender
as the context may require.
25.9 Time. Time is of the essence of this Lease. If the time for
performance hereunder falls on a Saturday, Sunday or a day that is recognized as
a holiday in the state in which the Premises are located, then such time shall
be deemed extended to the next day that is not a Saturday, Sunday or holiday in
said state.
25.10 Counterpart Execution. This Lease may be executed in counterpart and,
when all counterpart documents are executed, the counterparts shall constitute a
single binding instrument.
25.12 Riders. All Riders and Exhibits attached hereto and executed (or
initialed) both by Landlord and Tenant shall be deemed to be a part hereof and
hereby incorporated herein.
25.13 WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT, TO THE FULLEST EXTENT
THAT THEY MAY LAWFULLY DO SO, HEREBY WAIVE TRIAL BY JURY IN ANY ACTION OR
PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY COURT ACTION BROUGHT BY ANY PARTY
TO THIS LEASE WITH RESPECT TO THIS LEASE, THE PREMISES, OR ANY OTHER MATTER
RELATED TO THIS LEASE OR THE PREMISES.
25.14 OTHER PROVISIONS. The following are made a part hereof with the same
force and effect as if specifically set forth herein:
1. Premises and Property - Exhibit A.
2. Floor Plan - Exhibit A-1.
3. Legal Description - Exhibit A-2.
4. Base Rental Payments - Exhibit B.
5. Landlord's Repairs and Improvements - Exhibit C.
6. Insurance - Exhibit D.
7. Building Rules and Regulations - Exhibit E.
8. Rider to Industrial Building Lease - Exhibit F.
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
LANDLORD: First Industrial, L.P.,
By: First Industrial Realty Trust, Inc.,
a Maryland corporation, its general partner
By: _________________________________________
Its: _________________________________
TENANT: Sparta Foods, Inc.
By: _________________________________________
Its: _________________________________
<PAGE>
LEASE EXHIBIT A
(1565 First Avenue NW/Sparta Foods, Inc.)
Premises: Approximately 112,082 rentable square feet in the building located at
1565 First Avenue NW, New Brighton, MN (the "Building") - Exhibit A-1.
Property: See Legal Description attached hereto - Exhibit A-2.
Initials:
Landlord: ___________
Tenant: ___________
<PAGE>
LEASE EXHIBIT A-1
(1565 First Avenue NW/Sparta Foods, Inc.)
Building Plan
Initials:
Landlord: ___________
Tenant: ___________
<PAGE>
LEASE EXHIBIT A-2
(1565 First Avenue NW/Sparta Foods, Inc.)
LEGAL DESCRIPTION
Tract A, Registered Land Survey No. 405, files of Registrar of Tiles, County of
Ramsey.
Being registered land as is evidenced by Certificate of Title No. 320168.
AND
The Northerly 107.21 feet of the Westerly 406.3 feet of the South Half of the
Northwest Quarter of Section 21, Township 30 North, Range 23 West.
AND
The Northerly 150 feet of that part of the Northwest Quarter of Section 21,
Township 30 North, Range 23 West, lying Westerly of the Westerly right-of-way
line of Interstate Highway No. 35 W, and Southerly of the following described
line:
Beginning at a point on the Westerly line of said Section 21 a distance of 975
feet Northerly of the Southwest corner of said Northwest Quarter; thence
Easterly parallel to the Northerly line of said Section, to the Easterly line of
said Northwest Quarter and there terminating, subject to Cleveland Avenue and
State Trunk Highway No.
8-63.
Certificate of Title No. 283343
Initials:
Landlord: ___________
Tenant: ___________
<PAGE>
LEASE EXHIBIT B
(1565 First Avenue NW/Sparta Foods, Inc.)
RENTAL PAYMENTS
Base Rent for the Premises shall be in effect on the following dates in the
indicated amounts:
September 1, 1997 -
August 31, 2002 Four Hundred Forty-Eight Thousand Three Hundred
Twenty-Eight and 00/100 Dollars ($448,328.00) per annum,
payable monthly, in equal installments of Thirty-Seven
Thousand Three Hundred Sixty and 67/100 Dollars ($37,360.67)
each.
September 1, 2002 -
August 31, 2007 Four Hundred Ninety-Three Thousand One Hundred Sixty
and 80/100 Dollars ($493,160.80) per annum, payable monthly,
in equal installments of Forty-One Thousand Ninety-Six and
73/100 Dollars. ($41,096.73) each.
September 1, 2007 -
August 31, 2012 Five Hundred Forty-Two Thousand Four Hundred
Seventy-Six and 88/100 Dollars ($542,476.88) per annum,
payable monthly, in equal installments of Forty-Five Thousand
Two Hundred Six and 41/100 Dollars ($45,206.41) each.
Initials:
Landlord: ___________
Tenant: ___________
<PAGE>
LEASE EXHIBIT C
(1565 First Avenue NW/Sparta Foods, Inc.)
LANDLORD'S REPAIRS AND IMPROVEMENTS
*Shampoo 50% of Carpet
*Remove demo displays in Mezzanine
*Remove demo carpet logo in office in Mezzanine
*Replace 3 pads
*Recover 9 pads
*Repair 2 bumpers
*Furnish and install 3 pad sets
*Furnish and install 12 dock lights
*Replace 6 bottom door sections
*Replace stop and/or seal at 4 doors
*Replace sweeps and weather strip on 3 main doors
*Repair 2 dock stairs
*Repair 1 hand rail
*Patch holes in block walls
*Misc. repairs to overhead door steel angles
*Furnish 2 high bay lights lens covers
*Repair water damaged sheetrock at windows in upper conference room
*Replace vinyl wallcovering
*Paint trim at windows
*Replace missing ceramic tile at entry (may not match)
*Repair block wall adjacent to dock doors 1 and 1a
Any additional Tenant Improvements and all moving costs required by Tenant shall
be provided at the sole cost and expense of the Tenant (i.e. telephone system,
security system, intercom system, hookup to utilities of Tenant machinery or
equipment).
Prior to the lease commencement date, Landlord shall provide directly to Tenant
$10,000 for restroom upgrades and install handicap parking signs/parking lot
striping to meet the Americans with Disabilities Act (ADA) requirements.
Prior to the lease commencement date, Landlord shall provide directly to Tenant
$___________ for repairs to windows and adjoining walls on both floors of the
South wall of the building, made necessary by water damage.
Initials:
Landlord: ___________
Tenant: ___________
<PAGE>
LEASE EXHIBIT D
(1565 First Avenue NW/Sparta Foods, Inc.)
REQUIRED INSURANCE
(a) "All-Risk" Property and Loss of Income Coverage for Tenant's Property.
"All Risk" (including, but not limited to, and flood) (i) property insurance on
a replacement cost basis, covering the building and all of the other
improvements on the Premises, and covering all of Tenant's Property (as defined
in Section 12.2 of this Lease), all merchandise and trade fixtures and
furnishings and equipment and all other personal property of Tenant and all
leasehold improvements installed in the Premises by, or on behalf of, Tenant all
in an amount not less than the full replacement cost of all such improvements
and property and (ii) business interruption insurance in an amount sufficient to
assure that Landlord shall recover the loss of any rental income due and owing
to Landlord from Tenant under the terms of this Lease, which coverage shall
provide such protection to Landlord for a period of not less than twelve (12)
consecutive months. The total amount of the deductible required under each
policy providing such coverage shall be no more than $10,000.00 per loss.
Landlord, Agent and any other parties designated by Landlord having a financial
interest in the Premises shall be included as loss payee(s).
(b) Liability Coverage. Commercial general public liability and
comprehensive automobile liability [and, if necessary to comply with any
conditions of this Lease, umbrella liability insurance] covering Tenant against
any claims arising out of liability for bodily injury and death and personal
injury and advertising injury and property damage occurring in and about the
Premises, and otherwise resulting from any acts and operations of Tenant, its
agents and employees, with limits of not less than total limits of $2,000,000.00
per occurrence and $5,000,000.00 annual general aggregate, per location. The
total amount of a deductible or otherwise self-insured retention with respect to
such coverage shall be not more than $10,000.00 per occurrence. Such insurance
shall include, inter alia: (i) "occurrence" rather than "claims made" policy
forms unless such "occurrence" policy forms are not available; (ii) any and all
liability assumed by Tenant under the terms of this Lease, to the extent such
insurance is available; (iii) a hostile fire endorsement; (iv) Landlord, Agent
and any other parties designated by Landlord or Agent having a financial
interest in the Property shall be designated as Additional Insured(s) with
respect to (x) the Premises, and (y) all operations of Tenant, and (z) any
property and areas and facilities of Landlord used by Tenant, its employees,
invitees, customers or guests; and (v) severability of insured parties and any
cross-liability exclusion deleted so that the protection of such insurance shall
be afforded to Landlord in the same manner as if separate policies had been
issued to each of the insured parties.
(c) Workers' Compensation Coverage. Workers' compensation and employer's
liability insurance in the state in which the Premises and any other operations
of Tenant are located and any other state in which Tenant or its contractors or
subcontractors may be subject to any statutory or other liability arising in any
manner whatsoever out of the actual or alleged employment of others. The total
limits of the employer's liability coverage (including umbrella liability
insurance) shall be not less than the amounts specified in Subsection (b) above.
(d) All insurance policies required under this lease exhibit shall: (i) be
issued by companies licensed to do business in the State in which the Premises
are located (ii) not be subject to cancellation or material change or
non-renewal without at least thirty (30) days' prior written notice to Landlord
and any other parties designated by Landlord (A) to be loss payee(s) or
additional insured(s) under the insurance policies required from Tenant, or (B)
to receive such notices; (iii) be deemed to be primary insurance in relation to
any other insurance maintained by Landlord or Agent.
Initials:
Landlord: ___________
Tenant: ___________
<PAGE>
LEASE EXHIBIT E
(1565 First Avenue NW/Sparta Foods, Inc.)
BUILDING RULES AND REGULATIONS
1. Any sign, lettering, picture, notice or advertisement installed on or in any
part of the Premises and visible from the exterior or interior common area of
the Property, or visible from the exterior of the Premises, shall be installed
at Lessee's sole cost and expense, and in such manner, character and style as
Lessor may approve in writing, which approval shall not be unreasonably
withheld. In the event of a violation of the foregoing by Lessee, Lessor may
remove the same without any liability and may charge the expense incurred by
such removal to Lessee.
2. No awning or other projection shall be attached to the outside walls of the
Complex. No curtains, blinds, shades or screens visible from the exterior
Premises, shall be attached to or hung in, or used in connection with any such
curtains, blinds, shades, screens or other fixtures must be of a quality, type,
design and color, and attached in the manner approved by Lessor.
3. Lessee shall not waste electricity, water or air conditioning furnished by
Lessor, if any, and shall cooperate fully with Lessor to ensure the most
effective operation of the Complex's heating and air conditioning systems.
4. Lessee assumes full responsibility for protecting its space from theft,
robbery and pilferage, which includes keeping doors locked and other means of
entry to the Premises closed and secured after normal business hours.
5. In no event shall Lessee bring into the Complex flammables, such as gasoline,
kerosene, naphtha and benzine, or explosives or any other article of
intrinsically dangerous nature except as permitted in the Lease. If, by reason
of the failure of Lessee to comply with the provisions of this subparagraph, any
insurance premium for all or any part of the Complex shall at any time be
increased, Lessee shall make immediate payment of the whole of the increased
insurance premium, without waiver of any of Lessor's other rights at law or in
equity for Lessee's breach of this Lease.
6. Lessee shall comply with all applicable federal, state and municipal laws,
ordinances and regulations, and building rules and shall not directly or
indirectly make any use of the Premises which may be prohibited by any of the
foregoing or may increase the cost of insurance or require additional insurance
coverage.
7. Lessor shall have the right to approve all advertising by Lessee which names
or otherwise identifies the Premises and which, in Lessor's reasonable judgment,
may have a material adverse affect on the value of the Premises, provided,
however, that approval shall not be unreasonably withheld or delayed.
8. The Premises shall not be used for lodging, sleeping or for any immoral or
illegal purpose.
9. Lessee and Lessee's employees, agents, visitors and licensees shall observe
faithfully and comply strictly with the foregoing rules and regulations and such
other and further appropriate rules and regulations as Lessor or Lessor's agent
may from time to time reasonably adopt. Reasonable notice of any additional
rules and regulations shall be given in such manner as Lessor may reasonably
elect.
10. Unless expressly permitted by the Lessor, no additional locks or similar
devices shall be attached to any door or window and no keys other than those
provided by the Lessor shall be made for any door. If more than two keys for one
lock are desired by the Lessee, the Lessor may provide the same upon payment by
the Lessee. Upon termination of this Lease or of the Lessee's possession, the
Lessee shall surrender all keys of the Premises and shall explain to the Lessor
all combination locks on safes, cabinets and vaults.
<PAGE>
11. Any carpeting cemented down shall be installed with a reasonable adhesive.
In the event of a violation of the foregoing by Lessee, Lessor may charge the
expense incurred by such removal to Lessee.
12. The restrooms, drinking fountains and other plumbing fixtures shall not be
used for any purpose other than those for which they are constructed, and no
sweepings, rubbish, rags, coffee grounds or other substances shall be thrown
therein. All damages resulting from any misuse of the fixtures shall be borne by
the Lessee who, or whose employees, agents, visitors or licensees have caused
the same. No person shall waste water by interfering or tampering with the
faucets or otherwise.
13. Lessee shall not overload any utilities serving the Premises.
14. No dog or other animal shall be allowed in the Complex.
15. All loading, unloading, receiving or delivery of goods, supplies or disposal
of garbage or refuse shall be made only through entryways provided for such
purposes. Lessee shall be responsible for any damage to the Complex or the
property of its employees or others and injuries sustained by any person
whomsoever resulting from the use or moving of such articles in or out of the
Premises, and shall make all repairs and improvements required by Lessor or
governmental authorities in connection with the use or moving of such articles.
16. All safes, equipment or other heavy articles shall be carried in or out of
the Premises only in such manner as shall be prescribed in writing by Lessor,
and Lessor shall in all cases have the right to specify the proper position of
any such safe, equipment or other heavy article, which shall only be used by
Lessee in a manner which will not interfere with or cause damage to the Premises
or Complex in which they are located, or to the other tenants or occupants of
said Complex. Lessee shall be responsible for any damage to the building or the
property of its employees or others and injuries sustained by any person
whomsoever resulting from the use or moving of such articles in or out of the
Premises, and shall make all repairs and improvements required by Lessor or
governmental authorities in connection with the use or moving of such articles.
17. Canvassing, soliciting, and peddling in or about the Complex is prohibited
and each Lessee shall cooperate to prevent the same.
18. Wherever in these Building Rules and Regulations the word "Lessee" occurs it
is understood and agreed that it shall mean Lessee's associates, employees,
agents, clerks, invitees, and visitors. Wherever the word "Lessor" occurs, it is
understood and agreed that it shall mean Lessor's assigns, agents, clerks, and
visitors.
19. All entrance doors to the Premises shall be locked when the Premises are not
in use. All common corridor doors, if any, shall also be closed during times
when the air conditioning equipment in the Complex is operating so as not to
dissipate the effectiveness of the system or place an overload thereon.
20. Lessor reserves the right at anytime and from time to time to rescind, alter
or waive, in whole or in part, any of these Rules and Regulation when it is
deemed necessary, desirable or proper, in Lessor's reasonable judgment, for the
best interest of the Premises, provided that by so doing the rights of Lessee
under this Lease shall not be materially diminished and the obligations of
Lessee under this Lease shall not be materially increased.
Initials:
Landlord: __________
Tenant: __________
<PAGE>
LEASE EXHIBIT F
(1565 First Avenue NW/Sparta Foods, Inc.)
RIDER TO INDUSTRIAL BUILDING LEASE
A. LOCK BOX: Landlord may from time to time designate a lock box collection
agent for the collection of rents or other charges due Landlord. In such event,
the payment made by Tenant to the lock box shall be deemed to have been made by
Tenant as of the date of receipt by the lock box collection agent of such
payment (or the date of collection of any such sum if payment is made in the
form of a negotiable instrument thereafter dishonored upon presentment);
however, for the purpose of this Lease, no such payment or collection shall be
deemed a waiver by Landlord of any breach by Tenant of any term, covenant or
condition of this Lease nor a waiver of any of Landlord's rights or remedies and
any payments of amounts other than that deemed due and proper by Landlord shall
not prejudice Landlord in any manner nor constitute a waiver and Landlord shall
hereby be authorized to retain the proceeds of any payments by Tenant, whether
destructively endorsed or otherwise, and apply same to the amounts due and
payable from Tenant under this Lease without waiver.
B. PRIOR PROPOSALS: All prior proposals in respect to this Lease are hereby
terminated.
C. NOTIFICATION TO TENANT: Landlord hereby notifies Tenant that the person(s)
authorized to manage the Premises is First Industrial Realty Trust, Inc., which
corporation has been appointed to act as the agent in leasing, management and
operation of the Building for the owner of the Building which is First
Industrial, L.P. First Industrial Trust, Inc., with its office at 7615 Golden
Triangle Drive, Suite N, Eden Prairie, MN 55344, is authorized to accept service
of process and receive and give receipts for notices and demands on behalf of
said owner.
D. SIGNAGE: Notwithstanding anything contained in this Lease to the contrary,
provided Tenant receives all necessary governmental and quasi-governmental
approvals therefor, Landlord shall allow Tenant to erect a sign on the exterior
of the Building. Such sign shall be Tenant's "name", shall be subordinate in
size to Landlord's building designation sign if applicable and shall be subject
to the reasonable approval of Landlord as to location, size, graphics,
colors(s), and style. Tenant shall pay all costs of installation and maintenance
of such sign and shall keep such sign in good condition, order and repair ,
subject to reasonable wear and tear, at its sole costs and expense during the
term of this Lease, shall remove such sign prior to termination of the term of
this Lease and shall repair and restore any damage to the Building caused by
such installation and/or removal. Any such sign shall be subject to the terms of
any restrictive covenants recorded in connection with the Property and all
applicable laws, ordinances and regulations, which Landlord will provide to
Tenant prior to Lease execution.
E. EARLY OCCUPANCY: Tenant shall have the right to enter the Premises prior to
the commencement date of the Lease, for the purpose of leasehold improvement
construction; provided, however, that Tenant is subject to all of the terms,
conditions and covenants of this Lease, including specifically Lease Exhibit D
("Required Insurance") and gas, electric and water utilities, except for the
obligations for the payments of Net Base Rent and Additional Rent; provided,
however, Tenant's entering the Premises prior to the commencement date of the
Lease shall not unreasonably interfere with Landlord's construction in the
Premises.
<PAGE>
F. ROOF: Landlord shall not be obligated to replace the roof within the first
Lease year and not until such time that Tenant reasonably determines that
replacement is necessary. Landlord will provide and pay for a new roof at that
time and Tenant shall reimburse Landlord over the remainder of the term for such
replacement cost over a useful life of 20 years at eleven (11%) percent
interest.
G. LEASE ASSUMPTION: Landlord hereby agrees to sublease space from Tenant at
2570 Kasota Avenue, St. Paul, Minnesota. Pursuant to such sublease, Landlord
shall assume all of Tenant's obligations under such Lease except the obligation
to reimburse Landlord for Tenant Improvements and obligation to repair damage
caused by Tenant and removal of fixtures at the expiration of the lease term.
Landlord shall have no right to possession of the subleased premises until
Landlord has delivered possession of the Premises to Tenant, in the condition
required by this Lease, provided that such date of possession of the subleased
premises shall be not earlier than October 1, 1997 and not later than November
1, 1997.
In the event Tenant defaults under the lease at 1565 First Avenue NW, Landlord's
obligation under the subtenancy shall immediately cease. In addition, Landlord's
default under the sublease described herein shall constitute a default by
Landlord under this Lease.
At any time after November 1, 1997, Tenant shall remove any and all equipment
and fixtures in the space on Kasota Avenue upon notice from Landlord if Landlord
secures a subtenant for the space or part thereof.
Tenant shall be responsible for all sublease commissions due to Robert C.
Atkinson, Inc.
H. RIGHT OF FIRST REFUSAL: If at anytime during the Term Landlord desires to
sell the Premises, or receives a bona fide offer for the purchase of the
Premises, Landlord shall give Tenant written notice thereof, specifying in such
notice the material terms and conditions of such offer. Tenant shall have a
period of three (3) business days after its receipt of such notice in which to
deliver to Landlord written notice that Tenant agrees to purchase the Premises
on such terms and conditions. If Tenant fails to deliver such notice to Landlord
within such three (3) business day period, or fails to enter into a purchase
agreement with Landlord for such purchase upon such terms and conditions within
twenty (20) days after Tenant's acceptance notice, then Landlord shall have the
right to sell the Premises to such third party. However, if Landlord fails to
sell the Premises to such third party upon the terms and conditions so
specified, or at a purchase price which is within five percent (5%) of the
purchase price stated in Landlord's notice, then the rights of Tenant under this
Paragraph H shall be restored with respect to the next offer to purchase
received by Landlord.
Initials:
Landlord: ___________
Tenant: ___________
Exhibit 11
COMPUTATION OF EARNINGS PER COMMON SHARE
(unaudited)
<TABLE>
<CAPTION>
For the three months For the nine months
ended ended
June 30 June 30
-------------------------------------- ------------------------------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net income $407,119 $122,900 $588,541 $31,182
- ---------- ======== ======== ======== =======
Primary earnings per share
Adjusted net income under treasury
stock method (reduced interest
expense, net of tax) $439,565 $135,434 $678,763 $46,597
======== ======== ======== =======
Shares:
Weighted average number of
common shares outstanding 6,685,049 6,667,304 6,683,269 5,477,580
Shares issuable for the assumed
exercise of options and warrants which
are in excess of the number of shares
possible of repurchase using the
proceeds from the exercise of such
options and warrants, at the
average market price (treasury stock
method) 2,550,486 2,495,186 2,552,266 1,028,286
--------- --------- --------- ---------
Weighted average number of
common and common equivalent
shares 9,235,535 9,162,490 9,235,535 6,505,866
========= ========= ========= =========
Primary earnings per share $.05 $.01 $.07 $.01
-------------------------- ==== ==== ==== ====
Fully diluted earnings per share
- --------------------------------
Adjusted net income under treasury
stock method (reduced interest
expense, net of tax) $427,663 $122,900 $642,830 $31,182
======== ========= ======== =======
Shares:
Weighted average number of common
shares outstanding 6,685,049 6,667,304 6,683,269 5,477,580
Shares issuable for the assumed
exercise of options and warrants which
are in excess of the number of
shares possible of repurchase using
the proceeds from the exercise of
such options and warrants, at the
closing market price (treasury stock
method) 2,550,486 2,624,806 2,552,266 1,640,456
--------- --------- --------- ---------
Weighted average number of common
and common equivalent shares 9,235,535 9,292,110 9,235,535 7,118,036
========= ========= ========= =========
Fully diluted earnings per share $.05 $.01 $.07 $---
-------------------------------- ==== ==== ==== ====
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
SPARTA FOODS, INC.'S FORM 10-QSB FOR THE PERIOD ENDED JUNE 30, 1997 AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<MULTIPLIER> 1
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1997
<PERIOD-START> OCT-01-1997
<PERIOD-END> JUN-30-1997
<EXCHANGE-RATE> 1
<CASH> 30,567
<SECURITIES> 0
<RECEIVABLES> 899,877
<ALLOWANCES> 50,000
<INVENTORY> 980,079
<CURRENT-ASSETS> 2,071,720
<PP&E> 6,080,455
<DEPRECIATION> 2,456,966
<TOTAL-ASSETS> 7,758,492
<CURRENT-LIABILITIES> 2,428,370
<BONDS> 1,729,097
66,850
0
<COMMON> 0
<OTHER-SE> 3,534,175
<TOTAL-LIABILITY-AND-EQUITY> 7,758,492
<SALES> 10,114,728
<TOTAL-REVENUES> 0
<CGS> 7,028,204
<TOTAL-COSTS> 2,241,766
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 240,130
<INCOME-PRETAX> 604,628
<INCOME-TAX> 16,087
<INCOME-CONTINUING> 588,541
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 588,541
<EPS-PRIMARY> .07
<EPS-DILUTED> .07
</TABLE>
