▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
AGREEMENT TO ASSIGN GROUND LEASE AND SUBLEASE
THIS AGREEMENT, made as of this 28th day of November 1997, by
and between ▇▇▇▇▇▇▇▇, INC., a New York corporation, with offices at ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Assignor"), and Di
GIORGIO CORPORATION, a Delaware corporation, having its principal office at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Assignee"),
W I T N E S S E T H
WHEREAS, United States Steel and Carnegie Pension Fund, Inc.,
as Trustee under Agreement dated as of August 31, 1950 for United States Steel
Corporation NonContributory Pension Plan and United States Steel and Carnegie
Pension Fund, Inc., as Trustee under Agreement dated as of February 15, 1951 for
United States Steel Corporation Contributory Pension Plan, as Landlord, and
▇▇▇▇▇▇▇▇ in ▇▇▇▇▇▇▇▇▇ Field, Inc., as Tenant, entered into a certain ground
lease dated October 24, 1963 and recorded in the Office of the Clerk of Nassau
County, New York on October 25, 1963 in Deed Book 7219, at Page 231, as amended
by agreement dated December 18, 1963 and recorded in the Office of the Clerk of
Nassau County, New York on October 8, 1964 in Deed Book 7324, at Page 409
(hereinafter collectively called the "Ground Lease") covering certain Premises
(as defined in the Ground Lease) in Hempstead, Nassau County, New York
designated as ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇ and 7 on the Land Map of Nassau County
and commonly known as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, all as more
particularly described in the Ground Lease; and
WHEREAS, Assignor succeeded to the interest of ▇▇▇▇▇▇▇▇ in
▇▇▇▇▇▇▇▇▇ Field, Inc. pursuant to a certain assignment dated December 17, 1976
recorded on December 23, 1976 in the Office of the Clerk of Nassau County, New
York in Deed Book 9009, at Page 367; and
WHEREAS, Assignor, as Landlord, and Sysco Corporation, as
Tenant, entered into a certain sublease dated July 19, 1973 covering the
Premises which sublease was amended and supplemented by Amendment No. 1 dated
December 16, 1976, a memorandum of which was recorded on December 23, 1976 in
Deed Book 9009, at Page 369, Agreement dated December 16, 1976 by and among
Sysco Corporation, Assignor and New York Life Insurance Company recorded on
December 23, 1976 in Deed Book 9009, at Page 376, Agreement dated August 3, 1992
by and among New York Life Insurance Company, WRGFF Associates, L.P., ▇▇▇▇▇ ▇▇▇▇
Frozen Food, Inc., Assignor, and Sysco Corporation recorded in Liber 14807, Page
873 (the "1992 Agreement") and Certification And Agreement dated August 3, 1992
by and among Assignor, Sysco Corporation, WRGFF Associates, L.P., and ▇▇▇▇▇ ▇▇▇▇
Frozen Food, Inc. recorded in Liber 10265, Page 625 (the "Certification")
(hereinafter collectively called the "Sublease" or "First Sublease"); and
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WHEREAS, Sysco Corporation, as Sublandlord, and WRGFF
Associates, L.P., as Subtenant, entered into a certain sublease dated August 3,
1992, a memorandum of which was recorded in Liber 10265, Page 611 (hereinafter
called the "Second Sublease") covering the Premises; and
WHEREAS, WRGFF Associates, L.P., as Sublandlord, and ▇▇▇▇▇
▇▇▇▇ Frozen Food, Inc. ("▇▇▇▇▇ ▇▇▇▇"), as Subtenant, entered into a Sub-Sublease
dated August 3, 1992, a memorandum of which was recorded in Liber 10265, Page
597 (hereinafter called the "Third Sublease") covering the Premises; and
WHEREAS, DIG Holding Corp. ("DIG"), Assignee and ▇▇▇▇▇ ▇▇▇▇
("WRF") guaranteed the obligations of the Second Sublease and Third Sublease
pursuant to certain guaranties dated August 3, 1992; and
WHEREAS, DIG, WRF and ▇▇▇▇▇ ▇▇▇▇ have been merged into
Assignee, which is under common control with WRGFF Associates, L.P.; and
WHEREAS, New York Life Insurance Company, a New York
corporation, is the holder of a certain Consolidation, Modification and
Extension Agreement executed and delivered by Assignor dated December 17, 1976,
recorded on December 23, 1976 in the County Clerk's Office, Nassau County, New
York in Mortgage Book 9784, at Page 493 and the notes and mortgages described
therein together with Assignment dated December 17, 1976 with respect to the
First Sublease, Assignment dated August 3, 1992 with respect to the Second
Sublease and Third Sublease and certain other documents executed and delivered
in connection with the execution and delivery of the mortgage (being hereinafter
collectively referred to as the "Leasehold Mortgage"); and
WHEREAS, Assignor desires to assign the Ground Lease and First
Sublease and Assignee desires to take assignments of the Ground Lease and First
Sublease upon the terms and conditions provided for in this Agreement,
NOW, THEREFORE, the parties hereto in consideration of the
mutual promises and covenants herein contained and intending to be legally
bound, do hereby agree as follows:
1. Assignment of Ground Lease and First Sublease. The Ground
Lease shall be assigned to Assignee by execution of a Ground Lease Assignment
and Assumption Agreement in the form of Exhibit "A" attached hereto (hereinafter
called the "Ground Lease Assignment") to be executed by the parties effective as
of the Closing Date. Assignee shall accept the Premises on the Closing Date in
its then "AS IS" condition and Assignor shall have no obligation to make any
repairs or replacements to the Premises. The Ground Lease is being assigned to
Assignee subject to:
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(a) The lien of the Leasehold Mortgage which Assignor shall
continue to be responsible to pay pursuant to Article 2 below;
(b) Agreement dated September 18, 1980 recorded in the Office
of the Clerk of Nassau County, New York on August 10, 1981 in
Deed Book 9358, at Page 249 (hereinafter called the "Adjacent
Well Restrictions Agreement"); and
(c) the First Sublease, the Second Sublease and the Third
Sublease (collectively called the "Subleases").
The First Sublease shall be assigned to Assignee by execution of a Sublease
Assignment and Assumption Agreement in the form of Exhibit "B" attached hereto
(hereinafter called the "Sublease Assignment Agreement") to be executed by the
parties effective as of the Closing Date.
Assignee shall, at Closing, assume all of Assignor's obligations and liabilities
under the Ground Lease and under the First Sublease pursuant to the Ground Lease
Assignment and Sublease Assignment Agreement.
The provisions of this Article 1 shall survive Closing.
2. Leasehold Mortgage. Assignor will continue to pay the
interest and principal payments under the Leasehold Mortgage out of the interest
payments to be paid by Assignee to Assignor under the Promissory Note to be
delivered as part of the Purchase Price as provided for in Article 3 below.
Assignor shall have the right to pay off the Leasehold Mortgage before the
Maturity Date (as defined in the Promissory Note). Assignor may also, at its
option, take an assignment of the Leasehold Mortgage rather than a satisfaction
of the Leasehold Mortgage if it pays off the mortgage before the Maturity Date.
Assignee hereby acknowledges that the Leasehold Mortgage cannot be prepaid prior
to February 10, 1998. In the event that the Leasehold Mortgage is not paid and
discharged prior to the date which is the later of (a) the Maturity Date, or (b)
February 10, 1998, then Assignee may thereafter use a portion of the proceeds
from the Promissory Note to pay off and discharge the Leasehold Mortgage on the
Maturity Date.
3. Purchase Price.
A. As and for the purchase price (the "Purchase Price") of the
Assignor's leasehold interests in the Premises, Assignee shall pay to Assignor
the sum of Nine Million and 00/100 ($9,000,000.00) Dollars payable as follows:
(1) One Million Eight Hundred Thousand and 00/100
($1,800,000.00) Dollars to be paid by Assignee to Assignor at
Closing by check (or checks), subject to collection or other
transfer of funds as Assignor shall accept; and
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(2) Seven Million Two Hundred Thousand and 00/100
($7,200,000.00) Dollars payable under a certain promissory
note (the "Promissory Note") in the form of Exhibit "C"
attached hereto bearing interest at the rate of six and 2/3
percent (6 2/3%) per annum, with interest (only) in advance to
be paid in equal monthly installments of Forty Thousand Twenty
and 00/100 ($40,020.00) Dollars commencing on December 1, 1997
and on the first day of each and every month thereafter until
the Maturity Date with the unpaid balance of the principal and
interest to be due and payable on the Maturity Date.
4. Broker. Each party represents and warrants to the other
party that it has dealt with no broker or other person entitled to claim fees
for any services in connection with the negotiation, execution and delivery of
this Agreement. Each party agrees to defend, indemnify and hold the other party
harmless from and against any and all claims for finder's fees or brokerage or
other commission which may at any time be asserted against the indemnified party
founded upon a claim that the substance of the aforesaid representation of the
indemnifying party is untrue, together with any and all losses, damages, costs
and expenses (including reasonable attorneys' fees) relating to such claims or
arising therefrom or incurred by the indemnified party in connection with the
enforcement of this indemnification provision. The provisions of this Article 4
shall survive Closing.
5. Representations, Warranties and Agreements of Assignor. As
a material inducement to Assignee to enter into this Agreement and to proceed to
the Closing hereunder, Assignor makes to Assignee the following representations
and warranties which shall be true and correct on the Closing Date:
A. Assignor is a corporation duly incorporated and in good
standing under the laws of the State of New York, with the power and authority
to carry on the business in which it is engaged.
B. Assignor is duly authorized, in accordance with its
Certificate of Incorporation and By-Laws, to enter into and perform its
obligations under this Agreement and to carry out the transactions contemplated
hereby.
C. The Ground Lease is in full force, Assignor has received no
notice of default from the ground lessor under the Ground Lease, the rent and
all other charges accrued under the Ground Lease have been paid through November
30, 1997 (or will be paid by Assignor through November 30, 1997) and to the best
knowledge and belief of Assignor, no event has occurred which, with the passage
of time or the giving of notice, would constitute a default by Assignor as
tenant under the Ground Lease. The Ground Lease has not been modified or amended
except as set forth above. Assignor continues to be the tenant under the Ground
Lease and Assignor has made no prior assignments of such interest except to the
holder of the Leasehold Mortgage.
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D. The First Sublease is in full force, Assignor has received
no notice of default from the Subtenant under the First Sublease, and to the
best knowledge and belief of Assignor, no event has occurred which, with the
passage of time or the giving of notice, would constitute a default by Assignor
as sublandlord under the First Sublease and the First Sublease has not been
modified or amended except as set forth above and Assignor continues to be the
sublandlord under the First Sublease and Assignor has made no prior assignments
of its interests except to the holder of the Leasehold Mortgage.
6. Representations Warranties and Agreements of Assignee. As a
material inducement to Assignor to enter into this Agreement and to proceed to
Closing hereunder, Assignee makes the following representations and warranties
to and with Assignor which shall be true and correct on the Closing Date.
A. Assignee is a corporation duly incorporated and in good
standing under the laws of the State of Delaware, with the power and authority
to carry on the business in which it is engaged.
B. Assignee has all requisite corporate power and authority
and is fully authorized to enter into and perform its obligations under this
Agreement and to carry out the transaction contemplated hereby.
7. Closing. Closing of this transaction shall, subject to the
terms of this Agreement, take place at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ on or as of November 28, 1997,
which is hereinabove or hereinafter referred to as the "Closing Date" or
"Closing."
8. Deliveries by Assignor at Closing. At Closing, Assignor
will deliver or cause to be delivered to Assignee the following:
A. Duly executed, witnessed and acknowledged Ground Lease
Assignment in the form of Exhibit A;
B. Duly executed, witnessed and acknowledged Sublease
Assignment Agreement in the form of Exhibit B;
C. Duly executed Closing Statement as set forth on Exhibit D
attached --------- hereto;
D. A copy of the resolution of the Board of Directors of
Assignor authorizing the approval, execution and delivery to Assignor of all
documents required hereunder and a certification by the Secretary or other
officer of Assignee certifying such resolution together with an incumbency
certificate;
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E. Such other and further documents as may be reasonably
required by the terms of this Agreement or may be reasonably necessary or
incidental to consummating the transactions contemplated hereby.
9. Deliveries by Assignee at Closing. At Closing, Assignee
will deliver or cause to be delivered to Assignor the following:
A. Duly executed, witnessed and acknowledged Ground Lease
Assignment in the form of Exhibit A;
B. Duly executed, witnessed and acknowledged Sublease
Assignment Agreement in the form of Exhibit B;
C. An amount equal to One Million Eight Hundred Thousand and
00/100 ($1,800,000.00) Dollars representing the portion of the Purchase Price
due at Closing;
D. A copy of the resolution of the Board of Directors of
Assignee authorizing the approval, execution and delivery to Assignor of all
documents required hereunder and a certification by the Secretary or other
officer of Assignee certifying such resolution together with an incumbency
certificate;
E. A duly executed and witnessed Promissory Note in the form
of Exhibit C, as provided for in Section 3A(2) hereof;
F. Duly executed Closing Statement as set forth on Exhibit D
attached --------- hereto;
G. Such other and further documents as may be reasonably
required by the terms of this Agreement or may be reasonably necessary or
incidental to consummating the transactions contemplated hereby.
10. Assumption of Certain Liabilities of Assignor.
A. Assignee shall, at Closing, assume all of Assignor's
obligations and liabilities accruing under the Ground Lease from and after the
Closing pursuant to the Ground Lease Assignment. Assignee shall, at Closing,
assume all of Assignor's obligations and liabilities accruing under the Sublease
from and after the Closing pursuant to the Sublease Assignment Agreement.
B. Assignee shall pay all sales, transfer, use and similar
taxes if and to the extent the same may be applied to the assignment by Assignor
to Assignee of the Ground Lease and/or Sublease or otherwise to the transactions
evidenced hereby or any incident thereof to the appropriate taxing authority
including, without limitation, the New York Real Property Transfer
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Tax. Assignee agrees to defend, indemnify and hold harmless Assignor from and
against any and all losses, damages, costs and expenses, including reasonable
attorneys' fees, suffered by Assignor by reason of or arising from Assignee's
failure to comply with the provisions of this Section.
C. The provisions of this Article 10 shall survive Closing.
11. Apportionments. Assignor and Assignee agree that the
apportionments for this transaction shall be made as set forth on the Closing
Statement attached hereto as Exhibit D. In addition, the rent and additional
rent under the Ground Lease and Sublease shall be apportioned as of the Closing
Date. The additional rent payable under the Ground Lease is a pass through under
the Sublease. Assignee's affiliates are in occupancy under sub-subleases and
ultimately responsible for all additional rent. As a result, any additional rent
charges which become due and payable for the period up to the Closing will be
paid by Assignee or its affiliates upon demand by Assignor.
12. Further Assurances. Assignor and Assignee each agrees to
execute and deliver all other instruments and take all other action as the other
party may reasonably request from time to time, before or after Closing, in
order to effectuate the transactions provided for herein, including, without
limitation, the execution of any necessary transfer tax returns or other
necessary documents.
13. Notices.
A. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed by registered or certified mail with postage prepaid, return receipt
requested, or deposited, prepaid, with an overnight delivery service addressed
as follows:
(a) If to Assignor, to: The Great Atlantic & Pacific Tea Company, Inc.
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Sr. Vice President, General Counsel
The Great Atlantic & Pacific Tea Company, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Corporate Vice President,
Assistant General Counsel
and Assistant Secretary
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with a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
Montvale, New Jersey 07645-0244
(b) If to Assignee, to: Di Giorgio Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Executive Vice President/
Chief Financial Officer
with a copy to: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Sills, Cummis, Zuckerman, Radin,
Tischman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
or to such other addresses as shall be furnished in writing by either party to
the other.
B. Any notice or other communication delivered or sent in
accordance with the provisions of this Article shall be deemed to have been
properly given or served on the day of delivery, if delivered by hand or courier
service, or, if mailed, on the date of receipt or rejection as evidenced by the
green receipt card, if deposited in the United States mail addressed to such
party by registered or certified mail, postage prepaid, return receipt
requested.
14. Miscellaneous.
A. This writing constitutes the entire agreement of the
parties with respect to the subject matter hereof and may not be modified,
amended or terminated except by a written agreement specifically referring to
this Agreement signed by Assignor and Assignee.
B. Except as otherwise expressly provided herein, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, executors, administrators, legal representatives,
successors and permitted assigns.
C. The paragraph headings contained herein are for the
purposes of convenience only and are not intended to define or limit the
contents of said paragraph.
D. The Exhibits referred to in this Agreement are deemed to be
annexed to this Agreement and made a part hereof as though set forth in the body
of this Agreement.
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E. This Agreement shall be governed by and construed in
accordance with the law of the State in which the Premises is located.
F. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be one and the same instrument.
G. Assignee hereby acknowledges receipt of a copy of the
Ground Lease, Sublease and Leasehold Mortgage.
15. Survival. Notwithstanding any presumption to the contrary,
all covenants, conditions and representations contained in this Agreement, which
by their nature, impliedly or expressly, involve performance, in any particular,
after Closing, or which cannot be ascertained to have been fully performed until
after Closing, shall survive Closing. This provision shall be effective as to
all such covenants, conditions and representations, notwithstanding that as to
some of them, it may be expressly stated that they survive.
16. Assignment. This Agreement may not be assigned,
transferred or conveyed by Assignee without the prior written consent of
Assignor.
17. No Warranties or Representations by Assignor. Assignee
acknowledges and agrees that, except as expressly set forth in this Agreement,
neither Assignor nor any agent or representative of Assignor has made, and
Assignor is not liable or responsible for or bound in any manner by any express
or implied representations, warranties, covenants, agreements, obligations,
guarantees, statements, information or inducements pertaining to the Premises,
the Ground Lease, Sublease or any part hereof, the title and physical condition
thereof, the quantity, character, fitness and quality thereof, merchantability,
fitness for particular purpose, the income, expenses or operation thereof, the
value and profitability thereof, the uses which can be made thereof or any other
matter or thing whatsoever with respect thereto. Assignee acknowledges, agrees,
represents and warrants that it has had the opportunity and has in fact
inspected the Premises, that its predecessors and/or affiliates have been in
possession of the Premises pursuant to the Second Sublease and Third Sublease
and that it has had access to information and data relating to all of same as
Assignee has considered necessary, prudent, appropriate or desirable for the
purposes of this transaction and, without limiting the foregoing, that Assignee
and/or Assignee's agents and representatives have independently inspected,
examined, analyzed and appraised all of same, including the condition, value and
profitability thereof. Without limiting the foregoing, Assignee acknowledges and
agrees that, except as expressly set forth in this Agreement, Assignor is not
liable or responsible for or bound in any manner by (and Assignee has no relief
upon) any verbal or written or supplied guarantees, statements, information or
inducements pertaining to the Premises or any part hereof, such condition and
such operation and any other information respecting same furnished by or
obtained from Assignor or any agent or representative of Assignor. Without
limiting the foregoing, Assignor acknowledges and agrees that Assignee is
accepting an assignment of the Ground Lease for the Premises in its "AS IS"
condition.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
WITNESS: ▇▇▇▇▇▇▇▇, INC.
By:
Vice President
WITNESS: Di GIORGIO CORPORATION
By:
Title:
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
EXHIBIT "A"
GROUND LEASE ASSIGNMENT AND ASSUMPTION AGREEMENT
▇▇▇▇▇▇▇▇, INC., a New York corporation, having an address at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Assignor"), for
good and valuable consideration to Assignor in hand paid by Di GIORGIO
CORPORATION, a Delaware corporation, having its principal office at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Assignee"),
the receipt and sufficiency of which are hereby acknowledged, and in
consideration of the agreements and undertakings of Assignee hereinafter set
forth, has granted, conveyed, transferred and assigned, and by these presents
does grant, convey, transfer and assign unto the said Assignee, all of
Assignor's leasehold estate and rights, title and interest under that certain
ground lease dated October 24, 1963 between United States Steel and Carnegie
Pension Fund, Inc., as Trustee under Agreement dated as of August 31, 1950 for
United States Steel Corporation Non-Contributory Pension Plan and United States
Steel and Carnegie Pension Fund, Inc., as Trustee under Agreement dated as of
February 15, 1951 for United States Steel Corporation Contributory Pension Plan,
as Landlord, and Assignor as successor in interest to ▇▇▇▇▇▇▇▇ in ▇▇▇▇▇▇▇▇▇
Field, Inc., as Tenant, pursuant to a certain assignment dated December 17, 1976
recorded on December 23, 1976 in the Office of the Clerk of Nassau County, New
York in Deed Book 9009, at Page 367, which lease was recorded in the Office of
the Clerk of Nassau County, New York on October 25, 1963 in Deed Book 7219, at
Page 231, as amended by agreement dated December 18, 1963 and recorded in the
Office of the Clerk of Nassau County, New York on October 8, 1964 in Deed Book
7324, at Page 409 (hereinafter collectively called the "Ground Lease") covering
certain Premises (as defined in the Ground Lease) in Hempstead, Nassau County,
New York designated as ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇ and 7 on the Land Map of
Nassau County and commonly known as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
all as more particularly described in the Ground Lease,
TOGETHER WITH all of Assignor's right, title and interest in and to the
Premises,
TO HAVE AND TO HOLD unto said Assignee said leasehold estate and all
the aforesaid rights, title and interests. Assignor warrants that it holds a
good leasehold estate in the Premises.
Assignee hereby assumes and agrees to perform and observe all the
undertakings, obligations and covenants to be performed or observed from and
after this date by the lessee or tenant under the Ground Lease, including,
without limiting the generality of the foregoing, the payment of all rent,
insurance, real estate taxes, impositions and additional rent, if any, to accrue
or become due from and after this date under the Ground Lease. Assignee accepts
the terms and conditions of the Ground Lease and further agrees to indemnify
Assignor and hold Assignor
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harmless with respect to any expense or liability, including, without
limitation, court costs and reasonable attorneys' fees, which Assignor may incur
as a result of a breach or default by Assignee of its covenants herein and in
connection with the enforcement of this indemnity.
This instrument is subject to Section 13 of the Lien Law of the State
of New York.
Dated as of the 28th day of November, 1997.
WITNESS: ▇▇▇▇▇▇▇▇, INC.
BY:
Vice President
WITNESS: Di GIORGIO CORPORATION
By:
Title:
11-21-97
65215_3\097856
- 2 -
STATE OF )
) SS:
COUNTY OF )
ON THIS day of , 19 , before me, the subscriber, personally -------
----------------------------------- ----- came to me known, who, being by me
duly sworn, did depose ----------------------------------------------------- and
say that he resides at , ---------------------------------------------- , that
he is the President of ▇▇▇▇▇▇▇▇, INC., the corporation described in and which
executed the within instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation and that he
signed his name thereto by like order.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year aforesaid.
Notary Public
STATE OF )
) SS:
COUNTY OF )
ON THIS day of , 19 , before me, the subscriber, personally -------
----------------------------------- ----- came to me known, who, being by me
duly sworn, did depose ----------------------------------------------------- and
say that he resides at ,
----------------------------------------------------------------- , that he is
the President of Di GIORGIO CORPORATION, the corporation described in and which
executed the within instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation and that he
signed his name thereto by like order.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year aforesaid.
Notary Public
11-21-97
65215_3\097856
- 3 -
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
EXHIBIT "B"
SUBLEASE ASSIGNMENT AND ASSUMPTION AGREEMENT
▇▇▇▇▇▇▇▇, INC., a New York corporation, having an address at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Assignor"), for
good and valuable consideration to Assignor in hand paid by Di GIORGIO
CORPORATION, a Delaware corporation, having its principal office at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Assignee"),
the receipt and sufficiency of which are hereby acknowledged, and in
consideration of the agreements and undertakings of Assignee hereinafter set
forth, has granted, conveyed, transferred and assigned, and by these presents
does grant, convey, transfer and assign unto the said Assignee, all of
Assignor's subleasehold estate and rights, title and interest under that certain
sublease dated July 19, 1973 between Assignor, as Landlord, and Sysco
Corporation, as Tenant, which sublease was amended and supplemented by Amendment
No. 1 dated December 16, 1976, a memorandum of which was recorded on December
23, 1976 in Deed Book 9009, at Page 369, Agreement dated December 16, 1976 by
and among Sysco Corporation, Assignor and New York Life Insurance Company
recorded on December 23, 1976 in Deed Book 9009, at Page 376, Agreement dated
August 3, 1992 by and among New York Life Insurance Company, WRGFF Associates,
L.P., ▇▇▇▇▇ ▇▇▇▇ Frozen Food, Inc., Assignor, and Sysco Corporation recorded in
Liber 14807, Page 873 and Certification And Agreement dated August 3, 1992 by
and among Assignor, Sysco Corporation, WRGFF Associates, L.P., and ▇▇▇▇▇ ▇▇▇▇
Frozen Food, Inc. recorded in Liber 10265, Page 625 (hereinafter collectively
called the "Sublease") covering certain premises in Hempstead, Nassau County,
New York designated as ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇ and 7 on the Land Map of
Nassau County and commonly known as ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
all as more particularly described in the Sublease (hereinafter called the
"Demised Premises"),
TO HAVE AND TO HOLD unto said Assignee all of the aforesaid rights,
title and interest.
Assignee hereby assumes and agrees to perform and observe all the
undertakings, obligations and covenants to be performed or observed from and
after this date by the landlord or sublandlord under the Sublease to accrue or
become due from and after this date under the Sublease. Assignee accepts the
terms and conditions of the Sublease and further agrees to indemnify Assignor
and hold Assignor harmless with respect to any expense or liability, including,
without limitation, court costs and reasonable attorneys' fees, which Assignor
may incur as a result of a breach or default by Assignee of its covenants herein
and in connection with the enforcement of this indemnity.
11-21-97
65215_3\097856
- 1 -
This instrument is subject to Section 13 of the Lien Law of the State
of New York.
Dated as of the 28th day of November, 1997.
WITNESS: ▇▇▇▇▇▇▇▇, INC.
BY:
Vice President
WITNESS: Di GIORGIO CORPORATION
By:
Title:
11-21-97
65215_3\097856
- 2 -
STATE OF )
) SS:
COUNTY OF )
ON THIS day of , 19 , before me, the subscriber, personally -------
----------------------------------- ----- came to me known, who, being by me
duly sworn, did depose ----------------------------------------------------- and
say that he resides at ,
----------------------------------------------------------------- , that he is
the President of ▇▇▇▇▇▇▇▇, INC., the corporation described in and which executed
the within instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the Board of Directors of said corporation and that he signed his name
thereto by like order.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year aforesaid.
Notary Public
STATE OF )
) SS:
COUNTY OF )
ON THIS day of , 19 , before me, the subscriber, personally -------
----------------------------------- ----- came to me known, who, being by me
duly sworn, did depose ---------------------------------------------- and say
that he resides at , -------------------------------------------------- , that
he is the President of Di GIORGIO CORPORATION, the corporation described in and
which executed the within instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the Board of Directors of said corporation
and that he signed his name thereto by like order.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year aforesaid.
Notary Public
11-21-97
65215_3\097856
- 3 -