Lease – Farm and Cask (Tracked Copy)

LEASE AGREEMENT

This lease (the “Lease”) is made as of _______________________ (the “Effective Date”) by and between Pickering Mill Holdings, LLC. (“Landlord”), and Farm and Cask LLC, a ________________ limited liability company (“Tenant”) (jointly referred to as “Parties”).

 

In consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged, Landlord and Tenant agree as follows:

 

1. Basic Lease Provisions.  Wherever used in this Lease, the following terms shall have the meanings indicated, and where appropriate, constitute definitions of the same.

1. Shopping Center: Pickering Mill, 1299 Kimberton Road, Chester Springs, PA 19425
2. Premises: 860 square feet of main level space, 800 square feet of outdoor deck and two (2) adjacent 405 square feet garage spaces
3. Landlord’s Notice Address: Pickering Mill Holdings, LLC, 1600 Yellow Springs Road, Chester Springs, PA 19425
4. Tenant’s Notice Address: Farm and Cask Brewing LLC, Address: 224 Parkview Drive, Souderton, PA 18964________________  ; Email:_mikebrennan012@gmail.com_______________; Phone:__215-779-4159_______________. 
5. Trade Name: Tenant shall operate under the trade name “Farm and Cask Brewing Company”; and not change it without Landlord’s consent.
6. Guarantor(s): Michael Brennan and spouse, and any other business partners (please provide, if applicable)
7. Permitted Use: Tenant shall continuously use and occupy the Premises solely for the purpose of brewery and taproom and all associated or related business purposes; and for no other use, business, or purpose.
8. Term: Three (3) Years
9. Rent and Lease Commencement Date: The earlier of i) ninety (90) days from approvals from TTB, PLCB, West Pikeland Township and Chester County for a conditional use, or ii) thirty (30) days from store opening. Tenant agrees to start approvals upon Lease signing. If tenant cannot obtain all necessary approvals, then this lease shall be null and void. 
10. Minimum Rent: 

$15 per square foot NNN (main level) *

$12,900.00 (Yearly)/$1,075.00 (Monthly)

 

$10 per square foot NNN (garage level spaces)

$8,100 (Yearly)/$675.00 (Monthly)

 

$0 per square foot NNN (outdoor deck)

Total Base Rent for 860 SF main level, 800 SF deck & 810 SF of garage space: $21,000 (Yearly)/$1,750 (Monthly) 

Total Rent (Base plus Operating Expenses/Taxes):

        $21,000 + $5,210.40 = $26,210.40 (Yearly)/$2,184.20 (Monthly)

 

*Above rents are based on an as-is delivery with HVAC and utilities in good working order. Rent will be adjusted based on final cost of Landlord build-out and amortized in the rent throughout the term of the Lease with a five percent (5%) interest rate.

 

1. Percentage Rent: None. 
2. Additional Rent: Tenant shall be responsible for its prorata share of the operating expenses, real estate taxes and insurance for Pickering Mill.  This prorata share shall be determined based on the number of square feet of the Shopping Center constructed.  Tenant shall pay its prorata share monthly, with an appropriate adjustment at the end of each lease year.  Currently charges are estimated at $3.12 PSF for 2020. Additional Rent is subject to change and will be modified based on the sewage volume produced and how its related to the additional pumping required to maintain the system. Three months after opening the landlord will present the tenant with documentation of the increased volume and additional rent fees. 
3. Security Deposit: $1,750
4. Rent Deposit: Subject to collection, Landlord acknowledges receipt of a rent deposit of $1,750.  The Rent Deposit will be credited to the first full month’s installment of Rent 
5. Tenant’s Insurance: Minimum Liability Coverage: $1,000,000.00 per occurrence; and $3,000,000.00 in the aggregate.  Minimum Property Coverage: Full Replacement.
6. Broker: Tenant represents and warrants that, there are no claims for brokerage commissions or finders’ fees in connection with this Lease.  Tenant shall indemnify Landlord against and hold it harmless from all liabilities arising from any such claim by any broker or finder.

 

1. Delivery and Premises Condition.  Landlord will deliver HVAC and utilities in good working order. In addition, Landlord and Tenant will mutually agree upon a Tenant work letter prior to permit application. Tenant work letter will be added to this Lease as an addendum.

 

1. Rent.  Tenant shall pay to Landlord the Minimum Rent and Rent for Operating Expenses and Taxes, without prior demand or invoice and without any offset or deduction, on or before the first day of each month during the Term, in advance, at the address designated by Landlord.  Tenant’s obligation to pay Minimum Rent and Operating Expenses and Taxes shall commence on the Rent Commencement Date. Rent shall be prorated for any partial month at the beginning or end of the Term.

 

1. Taxes on Rentals, Personal Property Taxes, and Taxes on Leasehold.  If the Shopping Center is located in a jurisdiction that presently or in the future imposes a sales tax or other tax on Rent, Tenant shall pay the tax assessed by such taxing authority, simultaneously with each payment of Rent, when due to Landlord.  Tenant shall be responsible for, and shall pay before delinquency, all taxes assessed against any leasehold interest or improvements, alterations, fixtures, and/or personal property of any kind owned by or placed in, upon or about the Premises by Tenant, whether such taxes are assessed against Landlord or Tenant.

 

1. Late Fee, Interest, and Returned Check Fee.  If Tenant does not make any Rent payment by the fourteenth day from and including its due date (a “late payment”), then a late fee of $0.05 for each dollar overdue shall become immediately due to Landlord (the “Late Fee”).  In addition, all late payments shall bear interest at rate of 10% per annum.  If any check from Tenant is not honored by Tenant’s bank, then Tenant shall pay an administrative charge of $150.00 per dishonored check.  The parties stipulate that the Late Fee, interest payment, and check-dishonored fee constitute a fair and reasonable estimate of the damages incurred by Landlord, which actual damages are impractical to ascertain.

 

1. Abatement of Rent. In the event that Tenant’s access, use or enjoyment of the premises is adversely affected by Landlord’s actions or inactions, Tenant reserves the right to abate the rent. The amount of the partial abatement shall be based on the extent of impairment or interference with Tenant’s business.

 

1. Security Deposit.  Subject to collection, Tenant has deposited with Landlord the Security Deposit set forth in Section 1(m).  Landlord shall hold the Security Deposit, without liability for interest, as security for performance by Tenant of all of Tenant’s obligations under this Lease.  Landlord may apply the Security Deposit (or any part thereof) for: (i) any unpaid and past due Rent; (ii) any sum expended by Landlord on Tenant’s behalf; (iii) any expenses/damages incurred by Landlord by reason of Tenant’s default and/or breach;; and/or (iv) any final balance owing to Landlord pursuant to the Final Reconciliation Statement (See, Section 6).  Should Landlord apply all or any portion of the Security Deposit, Tenant shall remit to Landlord an amount sufficient to restore the Security Deposit to its original balance within seven days of demand therefor by Landlord.  Provided Tenant shall fully and faithfully comply with all of the provisions of this Lease, then Landlord shall return the Security Deposit (or any remaining balance thereof) to Tenant, within 30 days after the later to occur of: the Expiration Date; the date upon which Tenant has surrendered the Premises in the condition required by this Lease; or the issuance of the Final Reconciliation Statement.  Landlord’s return of the Security Deposit to the then-holder of Tenant’s interest under this Lease (according to Landlord’s books and records) shall relieve Landlord from all further obligation and liability to Tenant with regard thereto.  In the event of a transfer of Landlord’s interest in the Premises, Landlord shall transfer the Security Deposit to said transferee and thereafter shall be relieved from all further obligation and liability to Tenant for the Security Deposit.

 

1. Competing Operations. Landlord shall grant Tenant an exclusive right to use the premises for Tenant’s Permitted Use, thus limiting competition within the Shopping center. The said restriction shall be applicable to the shopping center, including any outparcels that may be located just outside the shopping center and to adjacent property owned by the landlord, that may serve for future expansion of the center.

 

In the event Landlord violates the terms in this Section 7, Tenant shall be entitled to any relevant remedies including rent reduction, lease termination, and/or the right to pursue litigation in the landlord’s name against a violating party.  

 

Tenant shall not open another store for a competing business within a radius of five miles from the outside boundary of the Shopping Center (as the crow flies).

 

1. Gross Sales Reports.  By February 15th of each year during the Term, Tenant shall deliver to Landlord a report of Tenant’s Gross Sales for the preceding calendar year certified to be true and accurate by Tenant.  “Gross Sales” means the sum of all sales of goods, services, and all other income and receipts whatsoever of all business conducted in or from the Premises (whether made for cash, on credit, or otherwise).  If Tenant fails to provide any Gross Sales report when due, then Tenant shall incur a late fee of $50.00 per month per report until such report is received by Landlord.

 

1. Utilities.  Tenant shall apply for and pay for all utilities used at the Premises together with all connection fees, tap fees, taxes and/or other charges levied thereon.  If any utility is measured by a master meter, then Tenant shall pay Landlord for Tenant’s utility consumption within 20 days of receipt of Landlord’s invoice.  Tenant shall submit to Landlord such data with respect to Tenant’s consumption of electricity, gas and water in the Premises, Tenants generation of waste at the Premises, and diversion of waste from landfill within 15 days after the end of each calendar quarter during the Term.  Landlord may designate the electrical service provider for the Shopping Center; and Tenant shall contract for electrical service for the Premises either with the Landlord or, at Landlord’s option, directly with Landlord’s designated service provider.  In addition, Landlord may, subject to applicable law, install systems and equipment in the Shopping Center that will generate alternative or renewable energy and/or recycled water and/or obtain the same from third party vendors for consumption in the Shopping Center, including the Premises.  Landlord may install equipment (including sub-meters) and other appurtenances in and around the Shopping Center and the Premises to cause alternative/ renewable energy and/or recycled water to be furnished to the Shopping Center.  If Landlord designates or changes a service provider, Tenant shall cooperate with Landlord or Landlord’s service provider, including, providing access (at reasonable times and upon reasonable notice) to the electric lines, feeders, risers, wiring, and related equipment within the Premises.  Electrical service to the Premises may be furnished by one or more companies providing electrical generation, transmission, and/or distribution services.  In such event, Tenant shall purchase and pay for the same either directly to the supplier or, at Landlord’s option, as Additional Rent.  Landlord may charge Tenant for the cost of electric service to the Premises as a single charge or divided into and billed in a variety of categories such as distribution charges, transmission charges, generation charges, public good charges, or other similar categories.  Landlord may aggregate the electrical service for the Premises and other premises within the Shopping Center, purchase electricity for the Shopping Center, including the Premises, through a broker and/or buyers group, and change the providers and manner of purchasing electricity from time to time.  Landlord may discontinue supplying such utility service(s) upon prior notice to Tenant sufficient for Tenant to obtain replacement service.  Landlord shall be entitled to receive a utility management fee (if permitted by law) for the services provided by Landlord in connection with the selection of utility companies and the negotiation and administration of contracts for the generation of electricity to the Shopping Center. Landlord shall not be liable for any loss, damage, or expense that Tenant may sustain or incur because of any interruption, failure, interference, change, or defect in the supply or character of utilities furnished to the Premises.

 

1. Trash Removal.  Tenant shall pay for the cost of trash collection and disposal from the Premises and related recycling services.  Tenant shall use the trash hauling service designated by Landlord for the Shopping Center. 

 

1. Tenant’s Work.

After the Landlord delivers the space per agreed upon Tenant work letter, Tenant shall complete all work to prepare the Premises for Tenant’s use and occupancy, at Tenant’s sole cost, in accordance with the plans and specifications approved by Landlord (“Tenant’s Work”).  Tenant shall submit the Tenant’s work on or before [ENTER DATE], and Landlord shall approve Tenant’s work on or before [ENTER DATE]. Tenant shall equip the Premises with all furniture, fixtures, and equipment necessary for the operation of Tenant’s business.  

 

Tenant will indemnify Landlord and save Landlord harmless from and against all claims, actions, suits at law or equity, judgments, expenses, damages, costs, liabilities, fines, and debts in connection, arising from or in any way related to: any injury, loss, or damage arising from any of Tenant’s work, including any labor strife (including legal fees and/or private security expenses) and any mechanic’s and other liens and encumbrances filed in connection with Tenant’s work (including Landlord’s legal fees).

 

1. Signage.  Before opening, Tenant shall purchase an identification sign and install it above the Premises entrance.  Prior to installing any sign, Tenant shall submit a proposed signage rendering (in a form suitable for applying for any required permits and approvals) showing, at a minimum, the placement of such signage on a picture of the actual storefront with the proposed dimensions thereof and the proposed method of installation (“Sign Package”) for Landlord’s review and approval.  All signs, awnings, and canopies shall comply with all applicable laws and codes (without the need for a variance); and the Landlord’s sign criteria.  Except for Tenant’s storefront sign, Tenant shall not install or maintain any other sign, awning, or canopy in or outside the Premises or in the Shopping Center.

 

1. Repairs.  Landlord shall keep the foundations, roof, and structural portions of the outer walls of the Premises in good repair. In additional, Landlord will guarantee the heating, ventilation and air conditioning equipment and system (“HVAC”)), and utility lines (e.g., electrical, gas, plumbing, and sewage facilities/lines). Tenant shall, at its own cost and expense, be responsible for the fixtures and operating equipment.

 

Tenant shall keep the Premises in a clean, sanitary, and attractive condition.  Tenant shall keep in effect an HVAC maintenance agreement, with a contractor approved by Landlord, which agreement shall require, at a minimum, quarterly visits during the Term followed by a written HVAC condition report with a copy sent to Landlord.  If after notice, Tenant fails to maintain a quarterly HVAC maintenance routine, then Tenant shall be held responsible for any needed repairs or replacement. In addition, Tenant shall be responsible for any damages to the sewages facilities/lines in direct result of Tenant (e.g. Usage, negligence) 

 

1. Access.  Landlord may enter the Premises at reasonable times and upon reasonable notice to make repairs, perform regular maintenance, make inspections, and show the same to prospective tenants, purchasers, and other parties.  If the Premises contain means of access to the roof, basement, or electrical/riser room, Landlord may enter the Premises at reasonable times and upon reasonable notice to gain access thereto.  In the case of an emergency, Landlord may enter the Premises without notice to Tenant and without Tenant being present.  

 

1. Non-Disclosure. The Landlord agrees and acknowledges that, as a result of negotiating, entering into and performing this Agreement, it has and will have access to certain Tenant’s Confidential Information (as defined below). Landlord also understands and agrees that misuse and/or disclosure of that information could adversely affect the Tenant’s business. Accordingly, Landlord agrees that, during the Term of this Agreement and thereafter, Landlord shall restrict disclosure of the Tenant’s Confidential Information to its employees, consultants, or independent contractors with a need to know and shall not disclose the Tenant’s Confidential Information to any third party without the prior written approval of the Tenant. Notwithstanding the foregoing, it shall not be a breach of this Agreement for Landlord to disclose Confidential Information of Tenant if required to do so under law or in a judicial or other governmental investigation or proceeding, provided the Tenant has been given prior notice and the Landlord has sought all available safeguards against widespread dissemination prior to such disclosure. 

 

The term “Confidential Information” shall mean the trade secrets and other confidential information of the Tenant which is not generally known to the public, and which is generated or collected by or utilized in the operations of the Tenant and relates to the actual or anticipated business or research or development of the Tenant or the Tenant’s actual or prospective vendors or customers.

 

1. Environmental Compliance.  Landlord and Tenant each shall comply with all applicable federal, state, and local laws, rules, orders, regulations, statutes, ordinances, codes, use permits, judgment, or decrees relating to or imposing liability or standards of conduct concerning environmental conditions and/or hazardous materials (“Environmental Laws”).  “Hazardous Materials” mean (i) any hazardous, toxic or dangerous waste, substance or material defined under any Environmental Law as now or at any time hereafter in effect; (ii) any other waste, substance or material that exhibits any of the characteristics enumerated in 40 C.F.R. §§ 261.20 through 261.24, inclusive, and those extremely hazardous substances listed under Section 902 of SARA that are present in threshold planning or reportable quantities as defined under SARA and toxic or hazardous chemical substances that are present in quantities that exceed exposure standards as those terms are defined under Section 6 and 8 of OSHA and 29 C.F.R. Part 1910; (iii) any asbestos or asbestos containing substances whether or not the same are defined as hazardous, toxic, dangerous waste, a dangerous substance or dangerous material in any Environmental Law; (iv) “Red Label” flammable materials; (v) petroleum based products (vi) all laboratory waste and by-products; and (vii) all bio-hazardous materials.  Tenant shall not generate, manufacture, refine, transport, treat, store, handle, or dispose of any Hazardous Materials in or around the Shopping Center.  Tenant immediately shall notify Landlord of any environmental concerns, liabilities, or conditions of which Tenant is, or becomes, aware, including any release or suspected release of any Hazardous Materials from the Premises.  Tenant shall file no documents or take any other action under this Section without Landlord’s prior written approval.  Landlord may file such documents or take such action instead of or on behalf of Tenant (but at Tenant’s sole cost and expense), and Tenant shall cooperate with Landlord in so doing.  Tenant shall (i) provide Landlord with copies of any documents filed by Tenant pursuant to any Environmental Law; (ii) permit Landlord to be present at any inspections and/or meetings with government environmental officials; and (iii) provide Landlord with an inventory of materials and substances dealt with by Tenant at the Premises, as well as such additional information for government filings or determinations as to whether there has been compliance with an Environmental Law.  Landlord shall have the right to enter the Premises at reasonable times and upon reasonable notice to inspect the Premises or to conduct tests to discover the facts of any suspected or potential environmental condition or violation.  Tenant shall defend, indemnify and hold Landlord harmless against any claims, actions, fines, penalties, liability, loss, damages, cost or expense, including consultants’ and attorneys’ fees and costs (whether or not legal action has been instituted), incurred by reason of (i) the presence of Hazardous Materials at, under or about the Premises (except for Hazardous Materials present at the Premises on the Possession Date or introduced by Landlord), or (ii) any failure by Tenant to comply with the terms hereof or with any Environmental Law, now or hereafter in effect.  Tenant’s obligations contained in this Section shall survive the expiration or earlier termination of this Lease, including any post-Term monitoring and remediation.  Not in limitation of the generality of the foregoing, but as additional covenants, Tenant specifically agrees that (a) Tenant shall not generate, manufacture, refine, transport, treat, store, handle, dispose or otherwise deal with any hazardous substances or hazardous waste as now or hereafter defined in the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq. and the regulations promulgated thereunder and any successor legislation and regulations (herein called “ISRA”); (b) If at any time during the Lease Term, there shall be required, with respect to the Premises or any part thereof, any act pursuant to or in compliance with ISRA, including the filing of any required notice of sale or negative declaration affidavits or the preparation or effectuation of any clean-up plans, Tenant shall be responsible for such compliance as if Tenant were the owner of the Premises as described in ISRA; and (c) Tenant shall defend, indemnify and hold Landlord harmless against any liability, loss, cost or expense, including reasonable attorneys’ fees and costs (whether or not legal action has been instituted) incurred by reason of the existence of or any failure by Tenant to comply with ISRA, the Spill Compensation and Control Act (N.J.S.A. 58:10-23.11, et. seq.), or any other environmental law now or hereafter in effect.

 

1. Assignment and Subletting.  Tenant shall not assign, transfer, mortgage, or encumber this Lease, in whole or in part, grant licenses or concessions, or sublet all or any part of the Premises without Landlord’s written consent, which consent may be withheld in Landlord’s sole judgment and discretion.  Any request to assign this Lease or sublet the Premises shall include: a description of the proposed assignee’s / subtenant’s net worth and business experience; copies of any term sheets, letters of intent, and/or purchase and sale agreements relating to the proposed transfer; and a non-refundable deposit of $1,000.00 payable to Landlord on account of the Transaction Fee required below.  Tenant shall provide Landlord with any further information/documentation as Landlord reasonably may require.  

 

1. Tenant’s Insurance.  To the full extent permitted by law, Tenant shall indemnify and defend Landlord and save it harmless from and against any suits, actions, damages, claims, judgments, costs, liabilities, and expenses in connection with loss of life, bodily injury, property damage or any other loss or damage arising from, or out of, any occurrence in, upon, at, or from the Premises, or Tenant’s use and occupancy of the Premises, or occasioned wholly, or in part, by any act or omission of Tenant, its agents, contractors, employees, servants, invitees, licensees or concessionaires, including use of the Common Areas.  Tenant’s liability excludes liability resulting from Landlord’s negligence or willful misconduct Landlord shall indemnify Tenant for bodily injury and property damage caused by Landlord or any of its agents. Tenant’s indemnification obligations shall not be limited by the provisions of any workers’ compensation act, similar statute, or by any action of Tenant’s insurance carrier, and shall survive the expiration or earlier termination of this Lease.  Tenant shall maintain, at Tenant’s sole cost and expense and to the full extent permitted by law: “Special Form” insurance coverage (or its then equivalent successor) that shall include fire and extended coverage insurance covering 100% of the cost of replacement of all furniture, fixtures, non-structural components of the walls and storefronts, equipment, inventory, and improvements in or serving the Premises in the event of a loss; commercial general liability insurance with a deductible of no more than $10,000, including contractual liability coverage, covering bodily injury and property damage liability and, unless insured under a business automobile policy, automobile ownership, non-ownership and hired car liability, in the broadest and most comprehensive forms generally available with “General Aggregate Amount and Per Occurrence Limits” of liability as set forth in Section 1(p); and workers compensation and other statutory disability insurance in such statutory amounts as required by the State.  Tenant’s general liability insurance shall be written on an occurrence basis.  Tenant’s property coverage shall include earthquake and flood coverage if the Shopping Center is located in a jurisdiction where Landlord’s insurance includes such flood and/or earthquake coverages.  Landlord makes no representation to Tenant that the minimum amount of insurance required to be carried by Tenant under this Lease is adequate to protect Tenant’s interest.  Tenant’s insurance shall name Landlord (and as Landlord directs, its ground lessors, lenders, affiliates, and managers) as additional insured(s) under Tenant’s general liability insurance policy providing the above-coverage.  On or before the Possession Date and thereafter within 10 days of the annual renewal date thereof, Tenant shall provide Landlord with certificates of insurance evidencing Tenant’s insurance.  Tenant also shall provide Landlord with copies of such policies upon Landlord’s request.

 

1. Waiver of Subrogation and Risk of Loss.  Landlord and Tenant hereby release each other and anyone claiming through or under the other by way of subrogation from any and all liability for any bodily injury or loss of or damage to property, whether or not caused by the negligence or fault of the other party.  In addition, Landlord and Tenant shall cause each insurance policy carried by them to provide that the insurer waives all rights of recovery by way of subrogation against the other party hereto in connection with any loss or damage covered by the policy.  Tenant shall store its property at Tenant’s own risk and releases Landlord, to the full extent permitted by law, from all property damage claims.  Landlord shall not be responsible or liable to Tenant for any loss or damage to either the person or property of Tenant arising from any cause.

 

1. Eminent Domain.  If the Premises shall be taken by eminent domain, then this Lease shall terminate as of the date of title vests in the taking authority.  If only a portion of the Premises is taken, then Landlord shall elect either to terminate this Lease (effective as of the date of title vests in the taking authority) or restore the Premises to substantially the same condition as the Premises were in on the Possession Date less the portion taken.  Landlord shall receive the full amount of any award made in connection with any taking.  Tenant shall cooperate with Landlord in executing such waivers/releases as may be necessary for Landlord to recover the award.

 

1. Relocation.  Landlord reserves the right to relocate Tenant to another space within the Shopping Center (the “New Premises”).  In such event, Landlord shall give Tenant at least 60 days prior notice to relocate (the “Move Date”).  Landlord shall, at Landlord’s cost, prepare the New Premises for Tenant’s occupancy to substantially the same condition as the Premises.  Effective on the Move Date, this Lease shall be amended with all references to the Premises being deemed to refer to the New Premises; and Landlord shall make an equitable adjustment to the Rent in the event of a change in the size of the Premises.

 

Landlord shall relocate Tenant for a maximum of [ENTER NUMBER OF TIMES] times. Beyond the aforementioned time, Landlord shall not relocate Tenant.

 

1. Expansion Space. Landlord shall offer Tenant either a right of first offer, or a right of first refusal for additional expansion space. 

 

1. Event of Default.

1. Any one of the following shall be an “Event of Default”: Tenant’s failure to pay Rent within fifteen days after Landlord has delivered to Tenant notice of such default; Tenant’s failure to observe or perform any of the other terms, conditions, or covenants of this Lease and to commence and to cure the same within the minimum time required to do so after Landlord has sent to Tenant notice of such default; Tenant’s filing of a voluntary petition for relief under the Bankruptcy Code or any similar federal or state law now or hereafter enacted; the commencement of any of the following proceedings that is not dismissed within 150 days: (i) Tenant being judicially declared bankrupt or insolvent according to law; (ii) an assignment for the benefit of creditors; (iii) a receiver, guardian, conservator, trustee in bankruptcy or other similar officer being appointed to take charge of all or a substantial part of Tenant’s property by a court of competent jurisdiction; (iv) an involuntary petition for relief being filed against Tenant pursuant to the Bankruptcy Code or any similar federal or state law now or hereafter enacted; and/or a (v) default by Tenant (or any affiliated or related entity of Tenant) with respect to any lease, other than this Lease, with Landlord (or any affiliated or related entity of Landlord).  If Tenant closes, abandons, or otherwise fails to operate; and said closing continues for three consecutive days, then Tenant shall be deemed to have abandoned the Premises and said abandonment shall be an “Event of Default” without the necessity of any notice from Landlord to Tenant.
2. Upon an Event of Default, Landlord may, in addition to Landlord’s rights and remedies at law or in equity: declare this Lease terminated by giving Tenant a written notice to quit on not less than fourteen days’ notice; and/or without further demand, notice, or resort to legal process (all of which Tenant expressly waives), enter the Premises and repossess the same, expel Tenant and those claiming through or under Tenant, and remove, dispose of, or store (in a public warehouse or elsewhere at the cost and for the account of Tenant) Tenant’s personal property without liability for any loss or damage that may be occasioned thereby.  Landlord may recover from Tenant all damages it may incur by reason of Tenant’s default, including repair and maintenance expenses incurred to avoid waste and the Rent as it becomes due for the remainder of the Term as if this Lease had not been terminated or the Premises re-possessed; and without regard to whether Landlord has re-let the Premises or not, except Tenant shall be entitled to a credit in the amount of rent received by Landlord in reletting, after deducting all of Landlord’s expenses incurred in reletting the Premises (including, brokerage fees, repair costs, the remodeling costs to place the Premises in condition acceptable to a new tenant), and in collecting the rent in connection therewith.  If the rentals received from such reletting are insufficient to cover the total Rent due during that month, Tenant shall pay such deficiency to Landlord.  Tenant shall not be entitled to any offset or credit for payments received by Landlord in excess of the amounts due from Tenant hereunder, either on a monthly or cumulative basis.  Alternatively, Landlord may elect to recover from Tenant and Tenant shall pay to Landlord liquidated damages in a lump sum payment equal to the present value of the Rent reserved under this Lease for the balance of the Term minus the then-present value of the aggregate Market Rate (as defined below) taking into account reasonable projections of vacancy and time required to re-lease the Premises.  For purposes hereof, “Market Rate” shall mean the current net effective rent being charged for comparable space in the Shopping Center.  For the purposes of calculating the Additional Rent that would have been paid, the Operating Expense Payment shall be increased as set forth in Section 5(a) and all other charges (e.g., Snow & Ice Removal Costs, Insurance Costs, and Taxes) shall be increased by three percent for each year remaining in the Term.  The Federal Reserve discount rate (or equivalent) plus four percent shall be used in calculating present values.
3. Tenant hereby grants to Landlord, a lien and security interest for the payment of all Rent upon all Tenant’s property, equipment, furniture, fixtures, and other assets at the Premises.  Landlord may sell said personal property, with or without notice, by public or private sale.
4. Landlord and Tenant each waive trial by jury in any action, or proceeding brought by the other on any matter whatsoever arising out of or in any way connected with this Lease.  Tenant agrees not to interpose any non-compulsory counterclaim of whatever nature or description in any action commenced by Landlord for non-payment of Rent; and submits to the jurisdiction of any court established to adjudicate such Landlord-Tenant matters on a summary process basis.
5. In the event Landlord (i) retains an attorney to enforce the provisions of this Lease against Tenant, (ii) retains an attorney to represent Landlord’s interests in Tenant’s bankruptcy case, (iii) brings a legal action or proceedings against Tenant, or (iv) has to defend any action or proceedings brought by or against Tenant, including, appeals or proceedings in bankruptcy or receivership, Landlord shall be entitled to recover from Tenant its reasonable legal fees and expenses in such action or proceeding or otherwise, or may recover same in a separate action or subsequent proceeding.  
6. Any release of Tenant from Tenant’s liability under this Lease only may be made by a written agreement signed by an officer of Landlord authorized to give such release.  Any acceptance of keys to the Premises by Landlord shall not constitute an acceptance of Tenant’s surrender.  Landlord’s termination of this Lease or recovery of possession of the Premises shall not constitute an acceptance of any surrender and shall be without prejudice to any and all of Landlord’s rights and remedies under this Lease, at law or in equity, including, without limitation, the right to recover damages.
7. No receipt of monies by Landlord from or for the account of Tenant or from anyone in possession or occupancy of the Premises after the termination of this Lease or after the giving of any notice of termination shall reinstate, continue, or extend the Term or affect any notice given to Tenant prior to the receipt of such money; and Landlord’s acceptance of any payment or performance shall not be deemed a recognition of any tenancy, revive this Lease, or otherwise impair or prejudice Landlord’s right to recover the Premises.  From and after the termination of this Lease as provided herein, the unilateral payment of Rent or performance by Tenant shall not create any tenancy, but rather, shall be, at Landlord’s discretion, deemed to be on account of Landlord’s damages or as use and occupancy payments during Tenant’s unlawful detainer of the Premises.  If Landlord designates a bank or other third-party institution to receive payments of Rent, said designation shall not constitute the appointment of agency to act on behalf of or for Landlord.  If this Lease shall be guaranteed on behalf of Tenant, all of the foregoing provisions hereof shall be deemed to read “Tenant or the Guarantor hereof”.  Nothing contained herein shall prevent the enforcement of any claim Landlord may have against Tenant for anticipatory breach of this Lease.  In the event of breach or anticipatory breach by Tenant of any provision of this Lease, Landlord shall have the right of injunction as if other remedies were not provided for herein.

 

1. Lease Priority.  This Lease is or shall be subject and subordinate to all matters of record, including any mortgage, deed of trust, ground lease, or any other method of financing or refinancing now or hereafter placed against the Premises and/or the Shopping Center (or any portion thereof) by Landlord, and to any and all advances made or to be made thereunder and to the interest thereon and to all renewals, replacements, consolidations and extensions thereof.  In confirmation of such subordination, Tenant shall execute any acknowledgment that Landlord may request.  The holder of any mortgage or deed of trust may elect to have this Lease superior to its mortgage or deed of trust upon notice to Tenant.

 

1. Notice.  All notices shall be in writing and sent to the address set forth in Section 1.  Notwithstanding the designation of a separate rent payment address, only notice sent to the notice address set forth in Section 1 shall be good and sufficient notice under this Lease.  Any party, by proper notice to the other, may change such party’s address for the giving of notice under this Lease. 

 

1. Lease Interpretation.  The term “includes” and “including” are not limiting.  The term “person” includes any natural person and/or any organization or entity.  The word “or” may be inclusive or exclusive depending upon the context of the provision.  The word “Tenant” shall mean each and every person identified as a tenant herein; and if there shall be more than one tenant, the liability of each shall be individual, joint and several.  All exhibits, riders, and/or addenda attached to this Lease are made a part hereof as if fully incorporated into the body of this Lease.  Each party has had the opportunity to review and revise this Lease and retain legal counsel; and any applicable rule of construction that any ambiguities are resolved against the drafting party shall not be applicable in the interpretation of this Lease.  The numbering and headings throughout this Lease are for reference only, and shall not be used to construe, interpret, or explain the provision.  Whenever an example is given in this Lease, such example shall be construed to be by way of example only and not of limitation.  The singular includes the plural.  The use of the neuter singular pronoun to refer to Landlord or Tenant shall be deemed a proper reference even though Landlord or Tenant may be an individual and/or an organization or entity.  The necessary grammatical changes required to make the provisions apply in the plural or to be gender appropriate shall in all instances be assumed as if correctly expressed.  Landlord’s and Tenant’s relationship is that of Landlord and Tenant; and not as partners or joint venturers.  Each provision to be performed by Tenant shall be construed to be both a covenant and a condition.  The rights and covenants conveyed in this Lease shall not be deemed to be covenants running with the land.  

 

1. Force Majeure. Landlord and Tenant shall be excused from the performance of any obligation hereunder when prevented from doing so by a cause beyond such party’s control.  Notwithstanding the foregoing, no cause or event shall (i) release Tenant from, or permit a delay in, or excuse, the payment of Rent as such becomes due, or (ii) delay or defer the Rent Commencement Date.

 

1. Partial Invalidity.  If any provision of this Lease shall to any extent be invalid, the remainder of this Lease shall not be affected thereby; and each other provision of this Lease shall be valid and enforced to the full extent permitted by law.

 

1. Waiver and Consent.  The rights and remedies given to Landlord and Tenant in this Lease are distinct, separate, and cumulative; and the exercise of any of them shall not be deemed to exclude either party’s right to exercise any of the others.  The waiver by Landlord or Tenant of any breach shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition of this Lease, or of such party’s right to enforce the same in the future.  The acceptance of Rent by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant regardless of Landlord’s knowledge of such breach.  No covenant, term or condition of this Lease shall be deemed to have been waived by Landlord or Tenant unless such waiver be in writing.  No waiver by Landlord in respect to other tenants shall be deemed to constitute a waiver in favor of Tenant.  Whenever Landlord’s consent is required under this Lease, such consent may be withheld by Landlord in Landlord’s sole discretion unless a different standard expressly is stated.  If a court finds that Landlord wrongfully withheld its consent, the sole result of such finding shall be Landlord’s deemed consent to the requested matter and Landlord shall not be liable to Tenant for any damages arising from the withholding of any consent.

 

1. Recovery Against Landlord.  If Landlord is found liable or obligated to Tenant for any reason under this Lease, then Landlord shall be liable to Tenant only for Tenant’s actual, proven damages; and in no event shall Landlord be liable to Tenant for lost sales or profits or any indirect, speculative, punitive, or consequential damages.  Tenant shall look solely to the estate and property of Landlord in the Shopping Center.

 

1. Successors.  All rights and liabilities herein given to, or imposed upon, Landlord and Tenant shall extend to and bind the respective heirs, executors, administrators, successors, and assigns.  No rights, however, shall inure to any assignee of Tenant made in violation of Section 22.  In the event of any sale or transfer of Landlord’s interest in the Shopping Center, the Premises, or this Lease (except as collateral security for a loan), upon such transfer Landlord will be released from all liability and obligations hereunder.

 

1. Confidentiality.  Except to the extent required by law, including by subpoena, Tenant shall not disclose the terms and conditions of this Lease to anyone.

 

1. Early Termination. Tenant reserves the right for early termination of the lease in the event Tenant’s business fails to achieve Tenant’s projected volume of sales or some other relevant metric, due to the location of the business.   

 

1. End of Term.  At the Expiration Date or sooner termination of this Lease, Tenant shall quit and surrender the Premises in broom clean condition, reasonable wear and tear and casualty excepted.  Tenant will perform repairs, if any are required, so that the HVAC, electrical, and plumbing systems serving the Premises are in good working order.  Tenant shall remove all of Tenant’s signs, inventory, furniture, trade fixtures, equipment, and other personal property from the Premises in a careful and prudent manner; and repair any damage caused thereby.  All property remaining in the Premises on or after the Expiration Date (or sooner termination date) shall become the property of Landlord without payment from Landlord.  Tenant shall be liable for the cost of removal and other charges to dispose of, or at Landlord’s option, to store such property.  If Tenant fails to vacate the Premises in condition required by this Section, then such hold-over shall be a tenancy-at-sufferance only.  For each day Tenant holds-over, Tenant shall pay to Landlord a use/occupancy charge equal to two times the annual Minimum Rent payable as of the Expiration Date plus all Additional Rent (annualized based upon Tenant’s then-current payments) divided by 360.  In addition and without prejudice to all of Landlord’s rights and remedies at law or in equity against Tenant, Tenant shall indemnify Landlord against any loss or liability resulting from Tenant’s delay in surrendering the Premises on the Expiration Date (or sooner termination date).  Tenant’s obligation to observe or perform the covenants contained in this Section shall survive the expiration or earlier termination of the Term.

 

1. Entire Agreement.  Landlord and Tenant represent and warrant to each other that their respective signatories are authorized to sign this Lease on such party’s behalf.  This Lease and the exhibits, riders, and/or addenda attached hereto, if any, set forth the parties’ entire agreement.  All negotiations, representations, and understandings between the parties are merged, incorporated into, and set forth in this Lease.  This Lease may be modified/amended only by written agreement of the parties.  In entering into this Lease, each party represents and warrants to the other that it is not relying upon any statement, opinion, or representation made by the other party except as expressly set forth in this Lease.  This Lease may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute a single document.  The execution of this Lease by electronic and/or digital signature shall be valid and binding for all purposes under this Lease and applicable law with the same force and effect as if the parties had signed the Lease by hand.  The electronic exchange of digital images/copies of this Lease, as executed, shall constitute good and sufficient delivery for all purposes under this Lease and applicable law.  Once executed by both parties, this Lease shall be effective and binding as of the Effective Date; and all terms, conditions, and provisions herein shall be binding upon and shall inure to the benefit of the parties, their legal representatives, successors, and assigns.  Tenant shall not record this Lease or any memorandum thereof.

 

{SIGNATURE PAGE TO FOLLOW}

 

IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first above written. 

 

LANDLORD:	Pickering Mill Holding, LLC By: _____________________________________ Name: Ryan Barger Title: Partner
TENANT:	Farm and Cask Brewing, LLC, a _______________limited liability company, By: _____________________________________ Name: _____________________________________ Title: _____________________________________

 

GUARANTY

 

FOR VALUE RECEIVED and in consideration of, and as an inducement for the execution and delivery of the within Lease, the undersigned, Michael Brennan and Spouse (individually and collectively the “Guarantor”) jointly and severally guarantee to Landlord, its heirs, executors, administrators, successors and assigns, the full and prompt payment of Rent, including, but not limited to, any and all other sums and charges payable by Tenant or the then-holder of the Tenant’s interest under the Lease including Tenant’s heirs, executors, administrators, successors, assigns, or by operation of law or other transfer (individually and collectively, the “Tenant”), and hereby further jointly and severally guarantee the full and timely performance and observance of all the covenants, terms, conditions and agreements therein provided to be performed and observed by Tenant under the Lease; and Guarantor hereby covenants and agrees to and with Landlord that if default shall at any time be made by Tenant, in the payment of the Rent and/or any other such sums and charges payable by Tenant under the Lease, or if Tenant should default in the performance and observance of any of the terms, covenants, provisions or conditions contained in the Lease, Guarantor shall and will forthwith pay such rent and other such sums and charges to Landlord, and any arrears thereof, and shall, and will, forthwith pay to Landlord all damages that may arise in consequence of any default by Tenant under the Lease, including, without limitation, all reasonable attorneys’ fees and disbursements incurred by Landlord or caused by any such default and/or by the enforcement of this Guaranty.  The Lease is incorporated herein by reference; and unless specifically defined herein, all capitalized terms used in this Guaranty shall have the same meaning as the capitalized terms in the Lease.  This Guaranty is an absolute and unconditional irrevocable Guaranty of payment and of performance.  It shall be enforceable against Guarantor, without the necessity for any suit or proceedings on Landlord’s part of any kind or nature whatsoever against Tenant, and without necessity of any notice of nonpayment, nonperformance or nonobservance or of any notice of acceptance of this Guaranty or of any other notice or demand to which Guarantor might otherwise be entitled, all of which Guarantor hereby expressly waives and Guarantor hereby expressly agrees that the validity of this Guaranty and the obligations of the Guarantor hereunder shall not be terminated, affected, diminished or impaired by reason of the assertion, or the failure to assert, by Landlord against Tenant, of any of the rights or remedies reserved to Landlord pursuant to the provisions of the Lease.  This Guaranty shall be a continuing Guaranty, and the liability of Guarantor hereunder shall in no way be affected, modified, or diminished by reason of an assignment, subletting, merger, or other transfer of the Lease, or by reason of any renewal, modification or extension of the Lease, or by reason of any modification or waiver of or change in any terms, covenants, conditions or provisions of the Lease between Landlord and Tenant, or by reason of an extension of time that may be granted by Landlord to Tenant, or by reason of any dealings or transactions between Landlord and Tenant, whether or not notice thereof is given to Guarantor.  All of Landlord’s rights and remedies under the Lease or under this Guaranty are intended to be distinct, separate and cumulative, and no such right and remedy therein or herein mentioned is intended to be in exclusion of or a waiver of any of the others.  This Guaranty shall be construed in accordance with the laws of the State of Pennsylvania.

 

GUARANTOR:

__________________________________ Michael Brennan

 

__________________________________ Spouse (Please Provide Full Name)

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