Exhibit 10.28
RENTAL AGREEMENT
THIS RENTAL AGREEMENT ("Agreement") is dated as of September 6, 1999 by
and between the Xxxxxx Family Trust ("Landlord"), and MONTEREY PASTA COMPANY, a
Delaware corporation ("Tenant").
WITNESSETH
THAT IN CONSIDERATION of the covenants, promises and agreements herein
contained, said parties do hereby covenant, promise and agree to, and with each
other, as follows:
1. PREMISES. Said Landlord does hereby let unto the Tenant, and said
Tenant does hereby hire and take of, the said Landlord for the term herein
specified, that certain real property and building, situated in the City of
Xxxxxxxx, County of Monterey, State of California, designated as a portion of a
building particularly described as an approximately 27,650 square foot unit
located at 00000 Xxxxxx Xxxx Xxxxxxxx, XX 00000-0000 ("Premises"). The property
included as part of the Agreement consists of approximately 17,100 square feet
of refrigerated storage space, 10,300 square feet of open dock space, and an
office of approximately 250 square feet referred to as the "scale office space."
2. TERM. The period of the Agreement shall be from September 13, 1999
until November 30, 1999 ("Term").
3. EXTENSION. The Landlord reserves the right to extend this Agreement
for additional 30-day periods at its sole option if the Tenant wishes to
continue to occupy the premises subsequent to November 30, 1999. Said extension
will be at the rate of $8,000 per 30-day period.
4. RENTAL. Tenant agree to pay Landlord, as rental for said premises
the following sums in lawful money of the United States:
A. The sum of Sixteen Thousand Dollars ($16,000.00) upon execution of
this Agreement by both parties, which shall represent rent for the first sixty
(60) days of the Agreement term.
B. The remainder of the Agreement term and any extensions shall be paid
at the rate of Two Hundred Sixty-six and 67/100 Dollars ($266.67) per day
effective and due on November 12, 1999, and calculated based on anticipated date
for surrender of premises.
5. UTILITIES. Tenant shall pay for all services and utilities.
6. PROPERTY TAXES. Landlord shall pay all property taxes.
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7. CONDITION OF PREMISES.
A. "AS-IS" CONDITION. Tenant accepts the Premises in their "AS-IS"
condition existing as of the date of this Agreement and without provision by
Landlord of any tenant improvement allowance to Tenant; provided, however, that
Landlord represents and warrants to Tenant that (i) to the best of Landlord's
actual knowledge, as of the date hereof, all building systems, refrigeration
systems, HVAC systems, wiring and plumbing serving the Premises are in good
order and repair, and (ii) as of the date hereof, Landlord has no actual
knowledge of any non-compliance of the Premises with ADA Requirements or other
applicable laws. Except to the limited extent otherwise provided in this
Agreement, Tenant acknowledges that no representations have been made to Tenant
by Landlord nor by any agent thereof respecting the condition of the Premises
and the acceptance of possession by Tenant shall evidence Tenant's agreement
that the Premises are in good and tenantable condition.
B. ALTERATIONS. Any alterations or modifications to the Premises shall
be at the sole cost and expense of Tenant and shall be subject to the approval
of Landlord. The Tenant has specific approval to install rollup doors, in "space
1" and "space 3" upon occupation of Premises, and a motion detection security
system in all refrigeration space.
8. ASSIGNMENT OR SUBLETTING. Tenant shall not assign or sublet this
Agreement or any part thereof without the written consent of Landlord.
9. REPAIRS AND MAINTENANCE. Landlord shall maintain outside of building
premises, all roofs and external walls. Tenant shall maintain interior of
building.
10. ENTRY BY OWNER. Tenant shall permit Landlord and its agents to
enter into and upon said Premises at all reasonable times for the purpose of
inspection or for the purpose of posting legal notices.
11. SECURITY. Those parties and representatives of parties described on
Exhibit A shall have access to the Premises for purposes related to the ongoing
operations of Tenant. This access shall be limited only to the space described
as Premises in Article 1.
12. LANDLORD'S REPRESENTATIONS AND WARRANTIES. Landlord represents and
warrants that (i) there are no other understandings or agreements with respect
to the subject matter of the Agreement; (ii) Landlord is the owner and holder of
the entire Agreement estate under the Agreement, free and clear of any interest
of any third parties other than Landlord and the rights of other subtenants.
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13. NOTICES.
(a) A copy of notices to the Landlord shall be addressed to:
Xxxxxxx Xxxxxx
X/x Xxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxx Xxx 00000
Xxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) A copy of notices to the Tenant shall be addressed to:
Monterey Pasta Company
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Phone: (000) 000-0000 Ext. 129
Fax: (000) 000-0000
In order to be effective, any notice which is delivered via telecopier
must be sent on a business day, between the hours of 8:00 a.m. and 5:00 p.m. in
the time zone in which the addressee is located.
14. BINDING ON SUCCESSORS AND ASSIGNS. The covenants and conditions
herein contained shall, subject to the provision as to assignment, apply to and
bind heirs, successor, executors, administrators, and assigns.
15. LIABILITY INSURANCE. Tenant agrees to take out and keep in force
during the life of the Agreement at Tenant's expense, public liability insurance
at not less than $1,000,000.00 for any one person injured of $1,000,000.00 for
any one accident, or $500,000.00 for property damage. Said policies of insurance
shall name Landlord as additional insured therein, and Tenant shall obtain a
written obligation on the part of the insurance carriers to notify Landlord in
writing thirty (30) days prior to any cancellation thereof. Tenant shall furnish
Landlord a certificate of such insurance.
16. QUIET ENJOYMENT. Landlord covenants and agrees that upon Tenant's
payment of the Monthly Rent and performance of its other obligations hereunder,
Tenant shall and may peaceably and quietly have, hold, and enjoy the Premises
throughout the Term without any manner of hindrance or molestation from Landlord
or any one claiming by, through or under Landlord subject to the Agreement.
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17. TIME. Time is of the essence of this Agreement.
18. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the parties to this Agreement, and supersedes all prior agreements by
the parties, both written and verbal.
19. ATTORNEY'S FEES. If either party to this Agreement commences an
action against the other party arising out of or in connection with this
Agreement, the prevailing party shall be entitled to recover from the losing
party the costs and expenses of such action, including attorneys' fees.
20. AUTHORITY TO EXECUTE AGREEMENT. Each party to this Agreement, and
the persons executing this Agreement on behalf of each such party, warrant to
the other party that such party is in good standing and duly qualified to do
business in the State of California, and that the execution of this Agreement
has been duly authorized by such party's Board of Directors, if applicable. In
addition, the persons executing this Agreement warrant that they are duly
authorized to execute same on behalf of party for whom such persons have
executed this Agreement.
21. KEYS. Landlord shall make available, at Landlord's expense, to
Tenant all door keys for the Premises which Landlord has in its possession or
under its control. The possession of keys is limited only to employees of
Tenant, Xxxxxxx Valley Public Warehouse, and Polar Refrigeration.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
"Landlord"
Xxxxxx Family Trust,
a California trust
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Xxxxxxx Xxxxxx
Its:
---------------------------
"Tenant"
Monterey Pasta Company,
A Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxx
Its: Chief Financial Officer
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