Exhibit 10.2
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") made as of this 1st day of March,
2006, by and between Xxxxx X. Xxxxxx, an individual residing in the State of
Florida (hereinafter, "Landlord"), and Vitarich Laboratories, Inc., a Delaware
corporation (hereinafter, "Tenant").
1. DEMISE OF PROPERTY AND TERM
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A. DEMISE OF PROPERTY: In consideration of the rents,
covenants and agreements reserved and contained in this Lease, Landlord hereby
leases and demises to Tenant, and Tenant hereby leases from Landlord, certain
real property located in Xxxxxxx County, State of Florida, commonly known and
numbered as 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxx, together with all improvements
thereon, consisting of a 14,712 square foot building (the "Building"), all
fixtures attached thereto, and all appurtenances thereto belonging
(collectively, the "Property"), as more particularly described in Exhibit A,
attached hereto.
B. TERM: The term of this Lease shall be for a period of five
(5) years, commencing on March 1, 2006 (the "Commencement Date"), and, unless
sooner terminated or extended in accordance with the terms and conditions of
this Lease, ending at 11:59 p.m. on the day before the fifth (5th) anniversary
of the Commencement Date. Any and all references in this Lease to the "term of
this Lease" shall mean and refer to the initial term of this Lease and any and
all renewals or extensions hereof.
2. RENT
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A. BASE RENT: Tenant shall pay to Landlord during the initial
term of this Lease, as base rent ("Base Rent") for the Property, the sum of one
hundred and fifty thousand and 00/100 Dollars ($150,000.00) per annum, payable
in equal monthly installments of twelve thousand five hundred and 00/100 Dollars
($12,500.00), in advance, on or before the first day of each calendar month
throughout the term of this Lease. Tenant covenants to pay the Base Rent, and
all other sums, costs, charges and expenses designated as "additional rent"
under this Lease (including without limitation taxes on real and personal
property, pursuant to Section 5 below, and premiums for Landlord's property
insurance, pursuant to Section 6 below), when due, without demand, abatement,
deduction or set off. In the event of any nonpayment of additional rent,
Landlord may collect such sums as rent and shall have all the rights and
remedies provided for herein or by law in the case of nonpayment of rent. In the
event any installment of Base Rent and/or additional rent is not received within
five (5) days of the date it is due, Tenant agrees to pay, as additional rent, a
late fee/administrative charge of five percent (5%) of the amount of such
overdue installment of rent, as well as interest on the unpaid amount at the
rate of 10% per annum.
B. ADDITIONAL RENT: From and after the Commencement Date,
subject to adjustment as provided in this paragraph, Tenant shall pay to
Landlord as Additional Rent (hereinafter defined as any and all sums, exclusive
of Base Rent and sales tax, payable by Tenant to Landlord pursuant to this
Lease), on the same day of each calendar month of the Lease term as Base Rent is
due and payable, an amount estimated by Landlord to be the total costs of taxes
on real and personal property, as more particularly described in Paragraph 5 of
this Lease, and the insurance coverages, as more particularly described in
Paragraph 6 of this Lease. In addition, Tenant shall pay a
management/administration fee to Landlord in the amount of four percent (4%) of
the Base Rent payable by Tenant. Landlord may adjust the estimated monthly costs
at the end of any calendar quarter on the basis of Landlord's reasonably
anticipated costs. Within ninety (90) days following the end of each calendar
year, Landlord shall furnish to Tenant a statement covering the calendar year
just expired, showing the total of the above costs and the amount of charges
paid by Tenant with respect to such period. If the actual costs exceed the
monthly payments so made by Tenant, Tenant shall pay to Landlord the deficiency
within fifteen (15) days after receipt of such statement including after the
expiration of the term of this lease. If said monthly payments exceed the costs,
such excess shall be credited against the next sums becoming due from Tenant
hereunder, or, if such determination is made after the expiration or termination
of this Lease, Landlord shall pay such excess amount to Tenant together with the
furnishing of such statement.
C. SALES TAX: Tenant shall pay to Landlord any and all taxes,
including sales tax imposed by the State of Florida or any other taxing entity
on the Base Rent, Additional Rent or other payments due hereunder.
D. APPLICATION AGAINST BASE RENT: Landlord hereby acknowledges
that, pursuant to the terms of that certain Lease Agreement (the "2004 Lease")
made and entered into as of August 18, 2004, by and between Landlord and
Vitarich Laboratories, Inc., a Florida corporation, predecessor in interest to
Tenant, Landlord has been holding the amount of $5,000.00 to be applied to the
payment of Base Rent for the last month of the term of the 2004 Lease.
Notwithstanding anything to the contrary contained in the 2004 Lease, Tenant
shall advance to Landlord an additional $7,500 and Landlord shall apply said
$12,500.00 to the first monthly installment of Base Rent which becomes due under
this Lease.
E. LANDLORD'S ADDRESS: The Base Rent and any additional rent
shall be paid to Landlord or order at the address for Landlord set forth in
Section 32 below, or at such other place as Landlord may designate in a written
notice to Tenant.
F. RESTRICTIVE ENDORSEMENTS INEFFECTIVE: No payment by Tenant
or receipt by Landlord of a lesser amount than the current installment of Base
Rent and additional rent which may be due shall be deemed to be other than on
account of the earliest Base Rent and additional rent due under this Lease, nor
shall any endorsement or statement on any check, or in any letter accompanying
any check or other form of payment, be deemed a waiver, settlement, accord and
satisfaction or other agreement by Landlord, and Landlord may accept such check
or payment without prejudice to its right to recover the entire balance of Base
Rent and all additional rent, or to pursue any other remedy in this Lease or
provided by law.
3. DELIVERY OF POSSESSION
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Tenant has occupied the Property prior to the Commencement
Date of this Lease pursuant to the terms and conditions of the 2004 Lease, and
will continue to occupy the Property, in its as-is condition, on and after the
Commencement Date pursuant to the terms and conditions of this Lease. Landlord
shall be under no obligation to make any improvements in or to the Property, or
to provide Tenant with any allowance for same, in connection with this Lease.
4. SECURITY DEPOSIT
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Landlord hereby acknowledges that, pursuant to the terms of
the 2004 Lease, Landlord received deposit of and has been holding the amount of
$5,000.00 as a security deposit pursuant to the terms and conditions of the 2004
Lease. Landlord further acknowledges that he received an additional $7,500 as a
security deposit pursuant to Section 2.D of this Lease. Notwithstanding anything
to the contrary contained in the 2004 Lease, Landlord shall continue to hold
said amount of $12,500 (hereinafter, the "Security Deposit") in accordance with
the terms and conditions of this Section 4. The Security Deposit shall be
maintained by Landlord in a federally insured bank account, without interest, as
security for the prompt, full and faithful performance by Tenant of each and
every provision of this Lease and of all obligations of Tenant hereunder. In the
event that Tenant is in default hereunder beyond any applicable grace or notice
and cure period, Landlord may use, apply or retain the whole (or any portion of)
the Security Deposit for the payment of (i) any Base Rent, additional rent, or
other sum of money which Tenant shall not have paid when due, or (ii) any sum
expended by Landlord on Tenant's behalf in accordance with the provisions of
this Lease. Upon any such use, payment or application, Tenant shall, upon five
(5) business days' written notice from Landlord, restore the Security Deposit to
the original sum set forth above. The use, application or retention of the
Security Deposit by Landlord shall not prevent Landlord from exercising any
other right or remedy provided in this Lease or at law and shall not operate as
a limitation on any recovery to which Landlord may otherwise be entitled. Not
later than thirty (30) days after the expiration or earlier termination of this
Lease, and provided Tenant is not in default beyond any applicable grace or
notice and cure period, Landlord shall return the Security Deposit to Tenant,
less any sums used, applied or retained as hereinabove set forth. In the event
of a sale or transfer of Landlord's interest in the Building or the Property,
Landlord shall have the right to transfer the Security Deposit to such purchaser
or transferee. In the event the Security Deposit is transferred, Tenant shall
look solely to the purchaser or transferee for the return of the Security
Deposit and Landlord shall thereupon be released from all liability to Tenant
for the return of the Security Deposit; provided, that the purchaser or
transferee has affirmatively assumed all of Landlord's obligations to Tenant in
writing.
5. TAXES ON REAL AND PERSONAL PROPERTY.
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A. Tenant shall at all times be responsible for and shall pay
monthly as part of the Additional Rent, all real estate taxes and all
assessments which may be levied against the Property, to the extent same apply
to the period of the term of the Lease, and against any personal property of any
kind owned, installed or used by Tenant in or about the Property. Landlord shall
forward statements or invoices for all such taxes and assessments promptly and
in any event so as to provide Tenant reasonable opportunity to pay same before
accrual of interest or penalties.
B. Tenant shall have the right, in good faith and by
appropriate proceedings, and at Tenant's sole cost, to contest the validity or
amount of any real estate tax agreed to be paid hereunder, provided that Tenant
shall first satisfy any requirements of law, including, if so required, that the
tax be paid in full before it is so contested. Landlord agrees, at Tenant's sole
cost, to render to Tenant all assistance reasonably necessary in contesting the
validity or amount of any such tax, including joining in and signing any protest
or pleadings which Tenant may deem necessary or advisable. It is agreed that
should any rebate be received in regard to such proceedings, such rebate shall
belong to and be paid to Tenant, to the extent same applies to the period of the
term of this Lease. Nothing herein shall prohibit or limit Landlord from
attempting to obtain an assessment reduction at its sole cost.
6. PROPERTY INSURANCE
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A. LANDLORD'S INSURANCE: Landlord shall procure and maintain
insurance covering the Property including law and ordinance, and any other
insurable loss the Landlord reasonably deems prudent to insure for "Special
Perils" including wind, flood and mechanical breakdown coverages in amounts
equal to the insurable replacement cost of the building, any contents owned by
the Landlord, and law and ordinance limits that reasonably protect the Landlord
in the event of damage to the Property.
The Landlord shall also purchase General Liability coverage insuring against
claims, demands or actions for bodily injury, death, personal injury, and loss
or damage to property of others arising out of the premises in limits not less
than $1,000,000 per occurrence and $2,000,000 annual aggregate.
B. TENANT'S OBLIGATION TO PAY PREMIUMS: Tenant shall pay the
entire amount of premiums for the insurance described in Section 6.A above, as
additional rent, to the extent such premiums apply to the period of the term of
this Lease. Any such payments of premiums shall be made to Landlord in monthly
installments as part of the Additional Rent.
7. UTILITIES
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Tenant shall pay all charges for gas, electricity, light,
heat, all public charges for sanitary sewage and solid waste discharged from the
Property and for water consumed on the Property, power and all other utilities
and telephone or other communication services used, rendered or supplied upon or
in connection with the Property, and which relate to the period of the term of
this Lease. Tenant shall pay all sums due under this Section directly to the
service provider, to the extent the utilities are charged directly to the
Tenant.
8. LIENS OR ENCUMBRANCES
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If any mechanic's or materialmen's lien is filed against the
Property for work claimed to have been done for, or materials claimed to have
been furnished to or for the benefit of, Tenant, such lien shall be discharged
of record by Tenant within ten (10) days by the payment thereof or the filing of
any bond required by law and shall indemnify Landlord against all such liens,
charges or encumbrances. If Tenant shall fail to discharge any such lien,
Landlord may (but shall not be obligated to) discharge the same, the cost of
which shall be paid by Tenant within three (3) business days of demand by
Landlord. Such discharge by Landlord shall not be deemed to waive or release the
default of Tenant in not discharging the same.
9. USE OF PROPERTY
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Tenant shall, during the term of this Lease, occupy and use
the Property for the purpose of operating a business producing and marketing
nutritional and dietary and supplements, warehousing, storage, fabrication,
manufacturing, processing, and related office facilities, and for no other
purposes without the prior written consent of Landlord, which consent shall not
be unreasonably withheld, conditioned or delayed.
10. ALTERATIONS AND IMPROVEMENTS
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Tenant covenants and agrees that it will make no alterations,
improvements or changes of any kind to the Property without first submitting the
plans thereof to Landlord and securing the prior written consent of the
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed; provided, however, that Tenant may, at its own option and without
having to secure the consent, written or otherwise of the Landlord, make any
alterations or changes of any kind to the Property which may be required by any
governmental order or regulation copies of which shall be provided to Landlord
along with all necessary plans and permits, and, so long as such alterations or
changes are not of a character required to be performed by Landlord under this
Lease, such alterations or changes shall be made at no expense to Landlord;
provided, however, that nothing herein shall obligate Tenant to make any capital
improvements to the Property. All improvements, alterations, replacements and
building service equipment made or installed by or on behalf of Tenant and
permanently affixed to the Property shall immediately upon completion or
installation thereof be and become the property of Landlord, without payment
therefor by Landlord, but subject to the provisions of this Lease; provided that
all machinery, equipment (other than building service equipment), trade
fixtures, movable partitions, furniture and furnishings installed by Tenant or
maintained on the Property, even if permanently affixed thereto, shall remain
the property of Tenant, and Tenant shall, if not in default beyond any
applicable grace or notice and cure period, be entitled to remove the same or
any part thereof at any time during the Lease term, but Tenant shall, at its
expense, repair any and all damage to the Property resulting from or caused by
such removal. The interest of Tenant in any property, which is not so removed,
shall at the end of the time provided for removal thereof vest in Landlord.
Landlord's approval of any plans, specifications or working drawings shall
create no responsibility or liability on the part of the Landlord for their
completeness, design sufficiency or compliance with any laws, rules and
regulations of governmental agencies or authorities. The alterations shall
conform to the requirements of Landlord's and Tenant's insurers and of the
Federal, state and local governments having jurisdiction over the Property,
shall be performed in accordance with the terms and provisions of this Lease in
a good and workmanlike manner and shall not adversely affect the value, utility
or character of the Property.
11. REPAIRS AND MAINTENANCE
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A. MAINTENANCE BY TENANT: Tenant covenants throughout the term
of this Lease, at its expense, to maintain in good order and repair the interior
of the Property, and to maintain and replace when necessary, all window and door
glass therein, interior and exterior; to maintain and repair (subject to Section
11.C below) all building service equipment therein, including, but not limited
to, electrical, plumbing, heating, air conditioning and sprinkler equipment,
pipes, wires, ducts, fixtures and appliances; to make all ordinary and necessary
repairs; to keep the Property in a safe, clean and sanitary condition; to
provide for the removal of trash and rubbish; to be responsible for lawn mowing
and the care of landscaping located on the Property; and to surrender the
Property at the end of the term in as good condition as when received, except
for ordinary wear and use, and damage caused by fire or other casualty covered
by insurance.
B. HVAC MAINTENANCE CONTRACT: Without limiting Tenant's
obligations under Section 11.A. above, Tenant shall at all times during the term
of this Lease, have and keep in force a maintenance contract, in a form and with
a contractor satisfactory to Landlord, of the heating, air conditioning and
ventilating equipment serving the Property, and providing for necessary repairs
and periodic maintenance thereto of not less than two times annually. Said
contract shall provide that it will not be canceled by either party except upon
thirty (30) days' prior written notice to Landlord. Tenant shall send Landlord a
copy of the contract within thirty (30) days of the Commencement Date.
C. LANDLORD'S MAINTENANCE: Landlord agrees to keep the roof,
floor, foundation and exterior walls of the Building (excluding plate glass,
windows, window frames, doors and door frames) in proper repair, including
without limitation the repair of any leaks in the roof, provided that in each
case Tenant shall have notified Landlord of the need for repair, and provided
further, that Landlord shall have no responsibility for such repairs when
necessitated by the negligence or willful misconduct of Tenant, its employees,
agents, contractors and invitees. Except as provided for hereinabove and for
damage caused by the negligence or willful misconduct of Landlord or Landlord's
employees, agents or contractors, or as otherwise specifically provided for
herein, Landlord shall not be responsible for repairing any damage to, or
performing any maintenance upon, the Property. Notwithstanding the foregoing,
Landlord shall be responsible for replacing all base building equipment and
operating systems in the Building, including, but not limited to, electrical,
plumbing, heating, air conditioning and sprinkler equipment, pipes, wires,
ducts, fixture and appliances, to the extent same are not repairable; provided,
however, that Landlord may amortize the cost of any such replacement over the
useful life of any such replaced equipment and charge through to Tenant, as
additional rent, the amortizable portion thereof applicable to the remaining
term of the Lease without regard to any unexercised renewal terms (except that
Landlord may charge through to Tenant the amortizable portion thereof applicable
to any renewal term upon Tenant's exercise of its option therefor), any such
statement to be payable within twenty (20) days of Tenant's receipt thereof with
reasonable supporting documentation.
D. LANDSCAPING AND PARKING. Tenant shall be responsible for
the landscaping of the Property (provided that Tenant shall not be required to
provide any landscaping beyond what exists at the Property as of the
Commencement Date), and maintaining the parking lot and sidewalks. Tenant agrees
to resurface the parking lot at the end of the term of this Lease; provided,
however, that nothing herein shall require Tenant to fully repave the parking
lot at any time.
E. DAMAGE TO PROPERTY: Tenant covenants and agrees that all
personal property, fixtures (other than base building systems), goods, wares and
merchandise in, on or about the Property shall be and remain at Tenant's sole
risk, and that, except for the negligence or willful misconduct of Landlord, its
employees, agents or contractors, Landlord shall not be held responsible for,
and Landlord is hereby released from, and forever saved harmless from, any
liability, by reason of, or resulting from, any damage to or loss thereof,
arising, directly or indirectly, from any acts of negligence of any other
tenants or persons in, on or about the Property or, unless due to the negligence
or willful misconduct of Landlord or its agents, employees or contractors, from
the bursting, overflowing or leaking of water, sewer or steam pipes, or from the
leaking or overflowing of the roof or downspouts, or from plumbing or heating
fixtures, or from electric wires or electric equipment, or from any other cause
whatsoever, including, but not limited to, rain, snow, wind or ice.
12. TENANT INSURANCE
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A. LIABILITY INSURANCE. Tenant shall, at its sole cost and
expense, procure and maintain throughout the Term a commercial general liability
policy insuring against claims, demands or actions for bodily injury, death,
personal injury, and loss or damage to property arising out of or in connection
with: (i) the Property; (ii) the condition of the Property; (iii) Tenant's
operations in, maintenance and use of the Property, and (iv) Tenant's liability
assumed under this Lease. Such insurance shall have such combined single limit
of Two Million Dollars ($2,000,000.00) per occurrence, on an occurrence basis.
Endorsements shall be obtained for cross-liability and contractual liability. In
no event shall the limits of such insurance be considered as limiting the
liability of Tenant under this Lease.
B. INSURANCE FOR PERSONAL PROPERTY. Tenant shall, at its sole
cost and expense, procure and maintain throughout the term of this Lease a
property insurance policy (written on a "Special Perils" basis) insuring all of
Tenant's personal property, including but not limited to equipment, furniture,
trade fixtures, furnishings and leasehold improvements which are the
responsibility of Tenant, for not less than the full replacement cost of said
property. All proceeds of such insurance shall be used to repair or replace
Tenant's property. In addition, Tenant shall, at its sole cost and expense,
procure and maintain business interruption insurance in an amount not less than
the Base Rent, additional rent and sales tax due hereunder for the period of six
(6) months.
C. WORKERS' COMPENSATION INSURANCE. Tenant shall, at its sole
cost and expense, procure and maintain throughout the term of this Lease,
workers' compensation insurance in accordance with statutory law.
D. OTHER INSURANCE. If the Landlord has not procured such
insurance pursuant to Section 6, Tenant shall, at its sole cost and expense,
procure and maintain throughout the term of this Lease, such other insurance as
Landlord reasonably deems necessary and prudent, or as required by Landlord's
beneficiaries or mortgagees of any deed of trust or mortgage encumbering the
Property, including without limitation flood insurance, "rising water", and
equipment breakdown insurance.
E. REQUIREMENTS OF INSURANCE COVERAGE. All such insurance
required to be carried by Tenant herein shall be with an insurance company
licensed to do business in the State of Florida and rated not lower than A-XII
in the A.M. Best Rating Guide. Such insurance (i) shall contain an endorsement
that such policy shall remain in full force and effect notwithstanding that the
insured has released its right of action against any party before the occurrence
of a loss; (ii) shall name Landlord and, at Landlord's request, any mortgagee or
ground lessor, as additional insured parties; (iii) shall provide that any
deductible shall not exceed $10,000.00 with the exception of wind and flood,
subject to Landlord review; and (iv) shall provide that the policy shall not be
canceled, failed to be renewed or materially amended without at least thirty
(30) days' prior written notice to Landlord and, at Landlord's request, any
mortgagee. On or before the Commencement Date, an original of the policy or a
certified copy thereof, or certificate of insurance therefor, shall be delivered
to Landlord and, at Landlord's request, to any mortgagee.
F. WAIVER OF SUBROGATION. Each party hereby releases the other
party hereto from liability for any loss or damage to any building, structure or
tangible personal property, or any resulting loss of income, or losses under
worker's compensation laws and benefits, notwithstanding that such loss, damage
or liability may arise out of the negligent or intentionally tortious act or
omission of the other party or its agents, if such loss or damage is covered by
insurance benefiting the party suffering such loss or damage or was required to
be covered by insurance pursuant to this Lease. Each party hereto shall obtain a
waiver of subrogation clause or endorsement to its policy (providing that such
waiver of right of recovery against the other party shall not impair the
effectiveness of such policy or the insured's ability to recover thereunder).
G. FAILURE TO PURCHASE INSURANCE. In the event Tenant does not
purchase the insurance required by this Lease or keep the same in full force and
effect, Landlord may, but shall not be obligated to purchase the required
insurance and pay the premium. The Tenant shall repay to Landlord, as additional
rent, the amount so paid promptly upon demand. In addition, Landlord may recover
from Tenant and Tenant agrees to pay, as additional rent, any and all reasonable
expenses (including reasonable attorneys' fee) and damages which Landlord may
sustain by reason of the failure of Tenant to obtain and maintain such
insurance.
13. DAMAGE OR DESTRUCTION
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A. MINOR DAMAGE: If the Property shall be damaged by fire or
other casualty of the kind insured against under the "Special Perils Policy"
obtained by Landlord, but are not thereby rendered untenantable in whole or in
part, Landlord shall promptly, at its own expense, cause such damage to be
repaired, and the Base Rent and all additional rent shall not be abated or
reduced.
B. PARTIAL UNTENANTABILITY: If the Property shall be damaged
by fire or other casualty of the kind insured against under the "Special Perils
Policy" obtained by Landlord, and shall be rendered untenantable only in part,
and Landlord shall determine that it is economically feasible to repair and
restore the Property to substantially its previous condition within a reasonable
amount of time, Landlord shall promptly, at its own expense, cause the damage to
be repaired, and the Base Rent and additional rent shall be reduced during the
period of such untenantability, in proportion to the ratio of the number of
square feet of floor area of the Building rendered untenantable to the total
number of square feet of floor area of the Building.
C. TOTAL UNTENANTABILITY: If the Property shall be damaged by
fire or other casualty of the kind insured against under the "Special Perils
Policy" obtained by Landlord, and shall be rendered wholly untenantable by
reason of such occurrence, and Landlord shall determine that it is economically
feasible to repair and restore the Property to substantially its previous
condition within six (6) months after the date of damage or destruction,
Landlord shall promptly, at its own expense, cause such damage to be repaired
and the Base Rent and additional rent shall be abated during the period of such
untenantability. If the restoration cannot be substantially completed within the
time stated in this Section 13.C., then, within fifteen (15) days after Landlord
determines that the restoration cannot be substantially completed within such
time period and notifies Tenant thereof in writing (which Landlord agrees
promptly to do), Tenant may terminate this Lease by written notice to Landlord
within ten (10) business days of such notice of determination by Landlord.
D. LANDLORD'S RIGHT TO TERMINATE: Notwithstanding anything to
the contrary in the foregoing, if the Building shall be destroyed or damaged to
the extent of fifty percent (50%) or more of its replacement value above
foundation walls, or rendered wholly untenantable, after the beginning of the
last two (2) years of the then-current term of this Lease, or, if at any time,
forty percent (40%) or more of the Building shall be damaged or destroyed or
rendered wholly untenantable by any such casualty, Landlord may elect to
terminate this Lease by notice to Tenant, said notice to be given within sixty
(60) days of the event giving rise to such damage or destruction. Any such
termination as aforesaid shall not affect any rights theretofore accrued to
Landlord because of prior defaults of Tenant.
E. RESTORATION: The time required by Landlord to repair any
said damage as aforesaid shall be extended by such time as is reasonably
required by Landlord to obtain the required building permits to commence such
restoration, which permits Landlord shall apply for and pursue with diligence.
Landlord's obligation to repair any such damage shall in any event be limited to
the structural components of the Property (including roof, floor, foundation and
exterior walls of the Building), and base building equipment and operating
systems (other than Tenant decoration or modification thereof) and interior
structural work existing as of the Commencement Date, and in no event shall
include repair of any alterations, improvements or betterments made by Tenant in
or about the Property; provided that in the event Landlord (i) fails to
substantially commence such repairs within ninety (90) days after the casualty,
(ii) fails to restore the Property and the Building to substantially their
pre-existing condition, or (iii) fails to substantially complete such
restoration within one hundred eighty (180) days after such casualty, then in
any of such events, Tenant may, at its option, terminate this Lease upon thirty
(30) days written notice given prior to substantial completion of such repairs
or restoration and suffer no further liability hereunder. Unless Tenant so
terminates, Tenant, after the occurrence of any such fire or other casualty
shall, at its own cost and expense, promptly repair and restore the portion of
the Property which Landlord is not obligated to restore, as well as Tenant's
fixtures, equipment and appurtenances.
14. CONDEMNATION
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A. GENERALLY: In the event that any portion of the Property
shall be taken or condemned for public use, any proceeds awarded shall become
the property of Landlord. To the extent Landlord may so determine, Landlord
shall rebuild and restore the remaining portion of the Property so as to make an
architecturally complete unit, and the Base Rent and additional rent shall be
reduced in the proportion which the floor area of the Property taken bears to
the floor area of the Property as a whole.
B. OPTION TO CANCEL: In the event that twenty percent (20%) or
more of the floor area of the Building shall be so taken, either Tenant or
Landlord may cancel and terminate this Lease by serving upon the other a written
notice of its intention so to do within thirty (30) days after receiving notice
that the condemnation judgment shall be entered, in which event Landlord shall
not be required to restore or rebuild the Property. Moreover, in the event that
fifty percent (50%) or more of the floor area of the Building shall be so taken,
or in the event that twenty-five percent (25%) or more of the total floor area
of the Building shall be so taken during the last two (2) years of the
then-current term of this Lease, Landlord shall have the right to cancel and
terminate this Lease by serving upon Tenant a written notice of its intention to
do so within thirty (30) days after the condemnation judgment shall be entered.
It is agreed, however, that if a portion of the Property or the Building is
taken and the Lease is not canceled or terminated by either party hereto as
permitted above, the Property shall be restored as stated in Section 14.A.
C. CLAIMS TO CONDEMNATION AWARD: Tenant shall have no right or
claim to any portion of Landlord's condemnation award, and shall have no right
or claim based on the condemnation of the Property or the improvements thereto
or of Tenant's leasehold interest therein. Notwithstanding the foregoing, Tenant
shall have the right to make a claim for a separate award for: Tenant's loss of
business; moving or relocation expenses; injury to or taking of Tenant's
improvements; removal or taking of Tenant's trade fixtures, equipment and
furnishings; or as a result of any modification, alteration or repair reasonably
required by Tenant to place the remaining part of the Property in suitable
condition for continued occupancy and use.
D. RESTORATION: Landlord's obligation to restore the Property
shall be limited, in any event, to the structural components of the Property
(including roof, floor, foundation and exterior walls of the Building), and base
building equipment and operating systems (other than Tenant decoration or
modification thereof), and interior structural work existing as of the
Commencement Date, and in no event shall include restoration of any alterations,
additions or betterments made by Tenant in or about the Property. If Landlord
chooses to restore the Property, it shall provide Tenant with an estimate of the
time needed to restore the Property to their condition immediately prior to the
casualty. If the time period so estimated exceeds one hundred eighty (180) days,
Tenant may terminate this Lease within ten (10) days after receipt of such
estimate. If the estimated restoration period is less one hundred eighty (180)
days, or if Tenant agrees to a period in excess of one hundred eighty (180)
days, then Landlord shall promptly commence such repair work and diligently
proceed to complete the same.
15. COMPLIANCE WITH REGULATIONS, ETC.
---------------------------------
Tenant covenants throughout the term at its expense to
comply promptly with all laws, codes, ordinances, administrative and court
orders and directives, rules and regulations which have the force of law,
including but not limited to the Americans With Disabilities Act, whether now in
effect or hereafter promulgated, applicable to Tenant's use and occupancy of the
Property, however, Tenant shall have the right to contest the applicability
and/or validity of any of the above so long as by reason of such action, the
Property or the improvements thereto would not be in danger of encumbrance,
forfeiture or loss.
16. LANDLORD'S RIGHT TO PERFORM TENANT'S COVENANTS
----------------------------------------------
If Tenant shall fail to perform any covenant or duty required
of it by this Lease or by law, Landlord shall, after written notice to Tenant
and expiration of the applicable cure period, have the right (but not the duty)
to enter the Property, without further notice if necessary, and to perform the
same. The costs of such performance shall be payable by Tenant, as additional
rent, upon ten (10) days written notice.
17. INDEMNIFICATION
---------------
Except with respect to claims arising from the negligence of
Landlord or of its agents, servants, employees or contractors, or from the
negligence of other tenants of the Building or of their agents, servants,
employees, contractors or invitees, Tenant covenants and agrees to indemnify and
save Landlord harmless (to the extent Landlord is not reimbursed by insurance)
from any and all losses, damages, claims, suits or actions, judgments and costs,
which may arise or grow out of any injury to or death of any person or damage to
any property, or from any claims for liability of any nature whatever arising
from any use, occupancy, construction, repairs, or other work or activity done
in or on the Property, or from any condition of the Property or anything thereon
or therein, or from any occurrence whatever in or on the Property during the
term of this Lease, including all Landlord's reasonable costs, expenses and
reasonable attorneys fees in connection with any such claim.
18. LANDLORD'S RIGHTS ON TENANT'S DEFAULT
-------------------------------------
A. DEFAULTS AND REMEDIES: In the event that: (1) Tenant shall
have failed to pay any installment of Base Rent, additional rent, or any other
charge provided in this Lease, or any portion thereof, when due and payable, and
the same shall remain unpaid for a period of ten (10) days thereafter; or (2)
Tenant shall be in default under any other provisions of this Lease and so
remain for a period of thirty (30) days after Landlord, by written notice, has
informed Tenant of such default (in the case of a default which cannot with due
diligence be cured within a period of thirty (30) days, Tenant shall have such
additional time to cure same as may same as may reasonably be necessary,
provided Tenant proceeds promptly and with due diligence to cure such default
after receipt of said notice); or (3) (a) Tenant shall file in any court a
petition in bankruptcy or insolvency or for reorganization or arrangement under
the applicable Federal or State bankruptcy laws, or for the appointment of a
receiver or trustee of all or a portion of Tenant's property; or (b) an
involuntary petition of the kind referred to in (3) (a) of this paragraph A
shall be filed against Tenant, and such petition shall not be vacated or
withdrawn within sixty (60) days after the date of filing thereof; or (c) Tenant
shall make an assignment for the benefit of creditors other than in the ordinary
course of business; or (d) Tenant shall be adjudicated a bankrupt; or (4) Tenant
shall vacate or abandon the Property and leave same vacated or abandoned, unless
Tenant then is actively marketing the Property for assignment or sublet; or (5)
Tenant shall assign or sublet the Property in violation of Section 20 of this
Lease, then Landlord may elect by written notice to Tenant to terminate Tenant's
right to possession only, without terminating the Lease, and Landlord may, at
Landlord's option, enter into the Property and take and hold possession thereof,
without terminating the Lease or releasing Tenant in whole or in part (except as
set forth in Section 18.B below), from Tenant's obligation to pay rent hereunder
for the full stated term at the time and in the manner provided in this Lease.
B. ADDITIONAL REMEDIES: Upon and after entry into possession
without terminating the Lease pursuant to the foregoing Paragraph A, Landlord
may, but need not (subject to the following sentence), relet the premises or any
part thereof for the account of Tenant to any person, firm or corporation, other
than Tenant, for such rent, for such time and upon such terms as Landlord, in
Landlord's sole discretion, shall determine, and Landlord shall not be required
to accept any tenant offered by Tenant, or to observe any instruction given by
Tenant about such reletting. Notwithstanding the foregoing, however, Landlord
agrees to use reasonable efforts to mitigate its damages in the event of
Tenant's default hereunder. In any such case, Landlord may alter the Property
and make repairs, redecoration and remodeling to the extent deemed by Landlord
necessary or desirable, and Tenant shall, upon demand, pay the costs thereof,
together with Landlord's expense of obtaining possession of the Property and the
expense of reletting (including brokerage fees or commissions and reasonable
attorneys' fees). If the consideration collected by Landlord upon such reletting
for Tenant's account, if any, is not sufficient to pay the monthly installment
of Base Rent and any additional rent required under this Lease, Tenant shall pay
to Landlord the amount of each monthly deficiency immediately upon demand.
C. LANDLORD'S RIGHT TO TERMINATE: In addition to the right of
Landlord to terminate Tenant's right to possession only, Landlord shall also
have the right, at any time after default, to cancel and terminate this Lease,
by serving written notice to such effect on Tenant, and to pursue any remedy at
law or in equity that may be available to Landlord. Should Landlord at any time
terminate this Lease for any breach, in addition to any other remedies it may
have, it may recover from Tenant all damages it may incur by reason of such
breach, including (i) the cost of recovering the Property, (ii) reasonable
attorneys' fees incidental thereto, and (iii) the worth at the time of such
termination of the excess, if any, of the amount of Base Rent, additional rent
and charges equivalent to rent due under this Lease for the remainder of the
stated term over the then reasonable rental value of the Property for the
remainder of the stated term, all of which amounts shall be immediately due and
payable by Tenant; however, there shall be credited against the amount described
in clause (iii) any amounts paid to Landlord pursuant to Paragraph B, above,
which relate to the period after such termination.
D. NO WAIVER: No waiver by Landlord of a breach of any
covenant, agreement, obligation or condition of this Lease shall be construed to
be a waiver of any future breach of the same or any other covenant, agreement,
obligation or condition hereof. No receipt of money by Landlord from Tenant
after notice of default, or after the termination of this Lease, or after the
commencement of any suit or after final judgment of possession of the Property,
shall reinstate, continue or extend the term of this Lease or affect any notice,
demand or suit. The rights and remedies hereby granted are cumulative and the
use of one remedy shall not exclude or waive Landlord's right to use another. In
the event Landlord commences any proceedings for non-payment of Base Rent or
additional rent, Tenant shall not interpose any counterclaim of whatever nature
or description in such proceedings; this shall not, however, be construed as a
waiver of Tenant's right to assert such claims in any separate action brought by
Tenant.
19. BANKRUPTCY
----------
A. DEFINITION. For purposes of this Lease, the following shall
be deemed "Events of Bankruptcy": (i) if a receiver or custodian is appointed
for any or all of Tenant's property or assets, or if there is instituted a
foreclosure action on any of Tenant's property; or (ii) if Tenant files a
voluntary petition under 11 U.S.C. Section 101 et seq., as amended ("Bankruptcy
Code"), or under the insolvency laws of any jurisdiction ("Insolvency Laws"); or
(iii) if there is filed an involuntary petition against Tenant as the subject
debtor under the Bankruptcy Code or Insolvency Laws, which is not dismissed
within sixty (60) days of filing; or (iv) if Tenant makes or consents to an
assignment of its assets, in whole or in part, for the benefit of creditors, or
a common law composition of creditors.
B. TERMINATION. Upon the occurrence of an Event of Bankruptcy,
Landlord, at its option and sole discretion, may terminate this Lease by notice
to Tenant (subject, however, to applicable provisions of the Bankruptcy Code or
Insolvency Laws during the pendency of any action thereunder). If this Lease is
terminated under this Section 19, Tenant shall immediately surrender and vacate
the Property, waives all statutory or other notice to quit, and Landlord shall
have all rights and remedies against Tenant provided in Section 18 in case of a
default beyond any applicable grace or notice and cure period by Tenant.
C. RIGHTS IN BANKRUPTCY. If Tenant becomes the subject debtor
in a case pending under the Bankruptcy Code, Landlord's right to terminate this
Lease under this Section 19 shall be subject to the applicable rights (if any)
of the debtor-in-possession or the debtor's trustee in bankruptcy (collectively,
the "Trustee") to assume or assign this Lease as then provided for in the
Bankruptcy Code, provided, however, that as a condition to any assignment of
this Lease, the Trustee must give to Landlord, and Landlord must receive, proper
written notice of the Trustee's assumption or rejection of this Lease, within
sixty (60) days (or such other applicable period as is provided pursuant to the
Bankruptcy Code, it being agreed that sixty (60) days is a reasonable period of
time for election of an assumption or rejection of this Lease) after the
commencement of the Bankruptcy Case, and that failure of the Trustee to give
notice of such assumption hereof within said period shall conclusively and
irrevocably constitute the waiver of any right of the Trustee to assign this
Lease. The Trustee shall not have the right to assign this Lease unless the
Trustee (i) promptly and fully cures all defaults under this Lease, (ii)
promptly and fully compensates Landlord and any third party (including other
tenants) for all monetary damages incurred as a result of such default, and
(iii) provides to Landlord "adequate assurance of future performance." Landlord
and Tenant (which term may include the debtor or any permitted assignee of
debtor) hereby agree in advance that "adequate assurance of performance" as used
in this paragraph, shall mean that all of the following minimum criteria must be
met: (1) the source of rent and other consideration due under this Lease, and
the financial condition and operating performance of Tenant shall be similar to
the financial condition and operating performance of Tenant as of the
Commencement Date; (2) Trustee or Tenant must pay to Landlord all rent payable
by Tenant hereunder when due, and (3) Trustee or Tenant must agree (by writing
delivered to Landlord) that the Property shall be used only for the permitted
use as stated in this Lease, and that any assignment of this Lease is subject to
all of the provisions thereof and will not violate or affect the rights or
agreements of any other tenants or occupants in the Building or of the Landlord
(including any mortgage or other financing agreement for the Building or the
Property). The criteria stated above are not intended to be exhaustive or
all-inclusive and Landlord may determine that the circumstances of Tenant or of
this Lease require other or further assurances of future performance with
respect to the assignment. In the event Tenant is unable to: (w) cure its
defaults, (x) reimburse Landlord for its monetary damages, (y) pay the rent due
under this Lease on time, or (z) meet those criteria and obligations imposed by
(1) through (3) above, then Tenant shall not have met its burden to provide
adequate assurance of future performance, and the Trustee shall have no rights
to assign this Lease.
20. ASSIGNMENT AND SUBLETTING
-------------------------
Tenant may not assign this Lease or sublet all or any portion
of the Property without the prior written consent of Landlord, which consent
will not be unreasonably withheld, conditioned or delayed. Tenant must request
Landlord's consent to an assignment or sublease in writing at least thirty (30)
days prior to the commencement date of the proposed sublease or assignment,
which request must include (a) the name and address of the proposed assignee or
subtenant, (b) the nature and character of the business of the proposed assignee
or subtenant, (c) financial information (including financial statements) of the
proposed assignee or subtenant and (d) a copy of the proposed sublet or
assignment agreement, which must be in substance and form reasonably acceptable
to Landlord. Tenant shall also provide any additional information Landlord
reasonably requests regarding such proposed assignment or subletting. Landlord
shall provide its written response to Tenant's request for consent to an
assignment or subletting within ten (10) business days of Tenant's request
therefor. Any assignment, encumbrance, or sublease without Landlord's written
consent shall be voidable by Landlord and, at Landlord's election, constitute an
event of default hereunder. Neither the consent by Landlord to any assignment,
transfer, encumbrance or subletting nor the collection or acceptance by Landlord
of rent from any assignee, subtenant or occupant shall be construed as a waiver
or release of the initial Tenant from the terms and conditions of this Lease or
relieve Tenant or any subtenant, assignee or other party from obtaining the
consent in writing of Landlord to any further assignment, transfer, encumbrance
or subletting.
21. INSPECTION BY LANDLORD, ETC.
----------------------------
Landlord and its agents shall have the right at all reasonable
times, upon reasonable notice to Tenant, during working hours during the term of
this Lease to enter the Property for the purpose of performing the maintenance
and repairs required of it by this Lease and for the purpose of inspecting the
Property, and, during the last one hundred eighty (180) days of the term hereof,
to show both the interior and exterior of the Property to prospective tenants or
purchasers. Landlord or its agent shall have the right to enter the Property at
any time without notice in the event of an emergency.
22. ASSIGNMENT OF LANDLORD'S INTEREST
---------------------------------
In the event Landlord should assign this Lease or the rents
hereunder, Tenant shall, upon ten (10) days notice of such assignment and the
request of Landlord, pay all sums becoming due to Landlord hereunder from and
after a date specified by Landlord to the assignee, and furnish such evidence of
insurance coverage required hereunder as the assignee may reasonably require so
as to protect the assignee's interest as it may appear.
23. ATTORNMENT
----------
In the event of the enforcement by a lender of Landlord's of
any of the remedies provided by law or by a deed of trust or other financing
document by a foreclosure sale, Tenant will, upon the request of the successor
to the interest of Landlord in the Property, automatically attorn to such
successor in interest, without any change in the terms or conditions of this
Lease, provided, however, that such successor in interest (i) shall not be bound
by any payment of Base Rent or additional rent for more than one (1) month in
advance, (ii) shall not be bound by any amendment or modification to this Lease
made without the consent of Landlord's mortgagee, (iii) shall not be liable for
damages for any act or omission of any prior landlord, including Landlord, and
(iv) shall not be subject to any offsets or defenses which Tenant might have
against prior landlords, including Landlord. Upon request by the successor in
interest, Tenant shall execute and deliver an instrument confirming the
foregoing attornment.
24. SUBORDINATION
-------------
This Lease shall be subject and subordinate to the lien of any present
or future mortgage or mortgages upon the Property or the Building, irrespective
of the time of execution or the time of recording of any such mortgage or
mortgages, and to any modifications, extensions, renewals and refinancing
thereof; provided, however, that such subordination shall be upon the express
condition that this Lease shall be recognized by the mortgagee and, during the
term of this Lease, the rights of Tenant shall remain in full force and effect
so long as Tenant shall continue to perform all of the covenants and conditions
of this Lease. This subordination shall be self-operative; however, in
confirmation thereof, Tenant shall execute promptly any instrument that Landlord
or any first mortgagee may request confirming such subordination. Tenant hereby
constitutes and appoints Landlord as Tenant's attorney-in-fact to execute any
such instrument on behalf of Tenant. Notwithstanding the foregoing, before any
foreclosure sale under a mortgage, the mortgagee shall have the right to
subordinate the mortgage to this Lease, and, in the event of a foreclosure, this
Lease may continue in full force and effect and Tenant shall attorn to and
recognize as its landlord the purchaser of Landlord's interest under this Lease.
Tenant shall, upon the request of a mortgagee or purchaser at foreclosure,
execute, acknowledge and deliver any instrument that has for its purpose and
effect the subordination of the lien of any mortgage to this Lease or Tenant's
attornment to such Purchaser. The word "mortgage" as used herein includes
mortgages, deeds of trust or other similar instruments and modifications,
extensions, renewals and replacements thereof and any and all advances
thereunder.
25. QUIET POSSESSION
----------------
Landlord covenants and warrants to Tenant that Tenant,
provided it is not in default hereunder, shall peaceably and quietly have, hold
and enjoy the Property and all appurtenances thereon during the full term of
this Lease.
26. FAILURE TO INSIST UPON STRICT PERFORMANCE; LENDER'S CONSENT TO
--------------------------------------------------------------
MODIFICATION
------------
The failure of either party to insist upon the strict
performance of any of the terms, conditions and covenants herein contained shall
not be deemed a waiver of any rights or remedies that either party may have
under this Lease or at law or equity, and shall not be deemed a waiver of any
subsequent breach or default in the terms, conditions and covenants herein
contained. This instrument may not be changed or modified without the consent of
Landlord's Lender.
27. HOLDING OVER
------------
In the event that Tenant shall hold over after the expiration
of this Lease, the tenancy created by such holding over shall be a
month-to-month, but in all other respects shall be governed by the terms of this
Lease; provided, however, if such holding over is without the express prior
written consent and approval of Landlord, the Base Rent shall be one and one
half times the Base Rent during the last full twelve (12) month period of this
Lease; and provided, further, in all cases, thirty (30) days' notice shall be
required to terminate the tenancy created by such holding-over. This amount was
negotiated and agreed upon by Landlord and Tenant as a material provision of
this Lease and it is understood and agreed to be a reasonable and justifiable
charge in the event Tenant shall hold over. Nothing in this Section 27 shall be
deemed, interpreted or construed as Landlord's consent to any such holding over
after the expiration of the term of this Lease, unless Landlord has given its
prior written consent and approval to such holding over.
28. UTILITY LINES AND FACILITIES
----------------------------
Landlord reserves the right to place in, over, below and upon
the Property (in such manner as to not interfere with Tenant's use of the
Property), utility lines, conduits, pipes, tunneling and the like to service the
Property and to use, replace, repair and maintain (or permit any other tenant so
to do) such utility lines, conduits, pipes, tunneling and the like, in, over,
below and upon the Property in such manner as will not interfere with Tenant's
enjoyment thereof, provided that Landlord shall provide that such work does not
interfere with the ongoing business and operations of Tenant, is accomplished
only after reasonable notice to Tenant, that such work shall be done
expeditiously and in a workmanlike manner, and further, that the Property shall,
upon conclusion of the work, be restored to substantially the same conditions as
it was prior to the commencement of the work.
29. SIGNS
-----
Tenant, at its sole cost and expense, shall have the right to
place, construct and maintain on the Property one or more signs advertising its
business at the Property, in compliance with all applicable governmental rules
and regulations. Tenant agrees to remove all such signs at end of term of this
Lease and to repair any damage to the Property related to such removal.
30. END OF TERM
-----------
Tenant shall peaceably surrender the Property to Landlord on
the expiration or earlier termination of this Lease, in broom-clean condition
and in as good condition as when Tenant took possession, including, without
limitation, the repair of any damage to the Property caused by the removal of
any of Tenant's personal property or trade fixtures from the Property, except
for reasonable wear and tear and loss by fire or other casualty covered by
insurance. Any of Tenant's personal property left on or in the after the
expiration or earlier termination of this Lease shall be deemed to be abandoned,
and, at Landlord's option, title shall pass to Landlord under this Lease.
31. SUCCESSORS AND ASSIGNS
----------------------
Except as hereinabove expressly otherwise provided, this Lease
shall bind and inure to the benefit of the parties hereto and their respective
successors and assigns.
32. NOTICES
-------
Any notice or demand required or permitted under this Lease
shall be deemed given on the day hand delivered, two (2) business days after
being deposited in the United States mail, registered or certified mail, return
receipt requested, postage prepaid, or the next business day after being sent by
overnight express courier service, to Landlord or Tenant at the following
addresses (or at such address as the party being notified shall have previously
requested by written notice to the notifying party):
To Landlord:
Xx. Xxxxx X. Xxxxxx
0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
To Tenant:
Vitarich Laboratories, Inc.
c/o Argan, Inc.
Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx
33. TENANT ESTOPPEL CERTIFICATES
----------------------------
From time to time during the term of this Lease, Tenant
covenants and agrees to submit, upon ten (10) days written demand therefor, an
estoppel certificate confirming the subordination of this Lease as set forth in
Section 24, and certifying (if such is true and correct) that: (i) the Property
have been accepted by Tenant as satisfactory; (ii) that Tenant is in full and
complete possession of the Property, stating the date upon which rent commenced
to accrue and the date to which rent has been paid; (iii) the Lease is in full
force and effect, and has not been amended, modified or superseded, or, if
amended, modified or superseded, setting forth the terms of same; (iv) that
Tenant has received no notice of any sale, transfer, pledge or assignment of
this Lease or of the rentals by Landlord; (v) that Tenant has not advanced to or
on behalf of the Landlord any monies which have not been reimbursed; and (vi)
that Tenant holds no claim against Landlord which might be set off against
accruing rentals.
34. CAPTIONS AND HEADINGS
---------------------
The captions and headings throughout this Lease are for
convenience of reference only, and the words contained therein shall in no way
be held or deemed to define, limit, describe, explain, modify, amplify or add to
the interpretation, construction or meaning of any provision of, or the scope or
intent of, this Lease nor in any way affect this Lease.
35. SEVERABILITY
------------
A. DIVISIBLE CONTRACT: It is agreed that, for the purpose of
any suit brought or based on this Lease, this Lease shall be construed to be a
divisible contract, to the end that successive actions may be maintained on said
Lease as successive periodic sums shall mature under said Lease, and it is
further agreed that failure to include in any suit or action any sum or sums
then matured shall not be a bar to the maintenance of any suit or action, for
the recovery of said sum or sums so omitted, and the Tenant agrees that it will
not in any suit or suits brought on this Lease for a matured sum for which
judgment has not previously been received, plead, rely on or urge as a bar to
said suit or suits, the defenses of res judicata, former recovery
extinguishment, merger, election of remedies or other similar defense, unless
such is a compulsory matter of pleading.
B. SAVINGS CLAUSE: If any term, clause or provision of this
Lease is declared invalid by a court of competent jurisdiction, the validity of
the remainder of the Lease shall not be affected thereby but shall remain in
full force and effect.
36. LANDLORD'S REPRESENTATIONS
--------------------------
Landlord hereby represents and warrants to Tenant that
Landlord is the owner of the Property in fee simple absolute, subject to certain
encumbrances, restrictions and easements of record, and that Landlord has full
right and authority to enter into this Lease.
37. HAZARDOUS SUBSTANCES
--------------------
A. DEFINITION. As used in this Lease, the term "Hazardous
Material" means any flammable items, explosives, radioactive materials,
hazardous or toxic substances, material or waste or related materials, including
any substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "infectious wastes," "hazardous materials" or
"toxic substances" now or subsequently regulated under any federal, state or
local laws, regulations or ordinances including, without limitation, oil,
petroleum-based products, paints, solvents, lead, cyanide, DDT, printing inks,
acids, pesticides, ammonia compounds and other chemical products, asbestos, PCBs
and similar compounds, and including any different products and materials which
are subsequently found to have adverse effects on the environment or the health
and safety of persons.
B. GENERAL PROHIBITION. Tenant shall not cause or permit any
Hazardous Material to be generated, produced, brought upon, used, stored,
treated, discharged, released, spilled or disposed of on, in, under or about the
Property, the Building or the land on which the Building is located ("Land") by
Tenant or its agents, affiliates, sublessees or assignees, except for the
temporary storage of Hazardous Materials that are used in the ordinary course of
Tenant's business provided such permitted Hazardous Materials are properly
stored in a manner and location meeting all Environmental Laws. Tenant shall
indemnify, defend and hold Landlord harmless from and against any and all
actions (including, without limitation, remedial or enforcement actions of any
kind, administrative or judicial proceedings, and orders or judgments arising
out of or resulting therefrom), costs, claims, damages (including, without
limitation, punitive damages), expenses (including, without limitation,
attorneys', consultants' and experts' fees, court costs and amounts paid in
settlement of any claims or actions), fines, forfeitures or other civil,
administrative or criminal penalties, injunctive or other relief (whether or not
based upon personal or bodily injury, property damage, or contamination of, or
adverse effects upon, the environment, water tables or natural resources),
liabilities or losses arising from a breach of this prohibition by Tenant, its
agents, affiliates, sublessees or assignees. Landlord shall have the right but
not the obligation to enter the Property for the purpose of inspecting the
storage, use and disposal of any Hazardous Material which Tenant may be
permitted to store or use upon the Property in accordance with applicable
environmental laws and otherwise to insure strict compliance with the provisions
of this Section 37.
C. NOTICE. In the event that Hazardous Materials are
discovered upon, in, or under the Property, the Building or the Land, and any
governmental agency or entity having jurisdiction over the Property, the
Building or the Land requires the removal of such Hazardous Materials, Tenant
shall be responsible for removing those Hazardous Materials arising out of or
related to the use or occupancy of the Property by Tenant or its agents,
affiliates, sublessees or assignees, but not those of its predecessors.
Notwithstanding the foregoing, Tenant shall not take any remedial action in or
about the Property, the Building or the Land without first notifying Landlord of
Tenant's intention to do so and affording Landlord the opportunity to protect
Landlord's interest with respect thereto. Tenant immediately shall notify
Landlord in writing of: (i) any spill, release, discharge or disposal of any
Hazardous Material in, on or under the Property, the Building, the Land or any
portion thereof, (ii) any enforcement, cleanup, removal or other governmental or
regulatory action instituted, contemplated, or threatened (if Tenant has notice
thereof) pursuant to any Hazardous Materials Laws; (iii) any claim made or
threatened by any person against Tenant, the Property, the Building or the Land
relating to damage, contribution, cost recovery, compensation, loss or injury
resulting from or claimed to result from any Hazardous Materials; and (iv) any
reports made to any governmental agency or entity arising out of or in
connection with any Hazardous Materials in, on, under or about or removed from
the Property, the Building or the Land, including any complaints, notices,
warnings, reports or asserted violations in connection therewith. Tenant also
shall supply to Landlord as promptly as possible, and in any event within five
(5) business days after Tenant first receives or sends the same, copies of all
claims, reports, complaints, notices, warnings or asserted violations relating
in any way to the Property, the Building, the Land or Tenant's use or occupancy
thereof.
D. SURVIVAL. The respective rights and obligations of Tenant
under this Section 37 shall survive the expiration or earlier termination of
this Lease.
38. GOVERNING LAW
-------------
This Lease shall be construed and interpreted under the laws
of the State of Florida.
39. ATTORNEYS' FEES AND RELATED MATTERS
-----------------------------------
In the event any court action is brought by Landlord or
Tenant to recover any sum due and unpaid under the terms hereof, or for the
breach of any of the terms and conditions contained herein, or to recover
possession of the Property, whether or not such court actions shall proceed to
judgment, the prevailing party shall reimburse the other for all costs and
expenses, including without limitation reasonable attorneys' fees, incurred by
the prevailing party in such court actions.
40. BROKERS
-------
Each of the parties warrants to the other that it has not
dealt with any broker or agent with respect to this Lease or the negotiation
hereof, and each hereby agrees to hold the other harmless from and against any
and all cost, expense or liability for any compensation, commissions and charges
claimed by any broker or agent with whom said party has dealt in violation of
this warranty.
41. TRANSFER OF LANDLORD'S INTEREST
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So long as Landlord's interest in the Property is a fee
interest, the term "Landlord," as used in this Lease, is defined as the then
current owner or mortgagee in possession of the Property. In the event of any
sale or sales by the then current Landlord hereunder of the Property, and
provided the transferee of Landlord's interest assumes all of Landlord's
obligations under this Lease, then, from and after the closing of such sale
transaction, Landlord whose interest is thus sold shall be and hereby is
completely released and forever discharged from and of all covenants,
obligations and liabilities of Landlord hereunder relating to the period
following such sale or transfer.
42. MISCELLANEOUS
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A. COMPLETE AGREEMENT: It is understood and agreed that this
Lease Agreement and the exhibits, addenda and riders, if any, attached hereto,
contain the entire agreement between the parties, which shall not be modified in
any manner except by an instrument in writing executed by the parties hereto.
This Lease supersedes and replaces the 2004 Lease (as defined in Section 2.D
above), which is hereby terminated in its entirety.
B. TIME IS OF THE ESSENCE: Time shall be of the essence for
the performance of all agreements and obligations by the parties hereunder.
C. WAIVER BY TENANT: Tenant hereby waives any and all rights
of redemption and all rights to relief from forfeiture granted by or under any
present or future laws. To the fullest extent permitted by law, Tenant waives
the right to a trial by jury and the right to file any counterclaims or
cross-claims against Landlord other than compulsory counterclaims or
cross-claims.
D. CORPORATE TENANT: If Tenant is or will be a corporation,
partnership or limited liability company, the persons executing this Lease on
behalf of Tenant hereby covenant, represent and warrant that Tenant is duly
organized and/or duly qualified and is authorized to do business in the State of
Florida; and that the person or persons executing this Lease on behalf of Tenant
is an officer or are officers or other authorized person or persons of such
Tenant, and that he, she or they as such officers or authorized persons were
duly authorized to sign and execute this Lease. Upon request of Landlord to
Tenant, Tenant shall deliver to Landlord documentation satisfactory to Landlord
evidencing Tenant's compliance with the foregoing sentence.
E. FORCE MAJEURE: Whenever a period of time is herein
prescribed for the taking of any action by Landlord or Tenant hereunder,
Landlord or Tenant, as the case may be, shall not be liable or responsible for,
and there shall be excluded from the computation of such period of time, any
delays due to strike, riots, acts of God, shortage of labor or materials, war,
governmental laws, regulations or restrictions, or any other cause whatsoever
beyond the control of said party.
43. OPTIONS TO RENEW
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Provided that (i) this Lease is in full force and effect, (ii)
Tenant or its permitted successors or assigns, if any, is in possession of the
Property, and (iii) Tenant is not in default of its duties and obligations under
this Lease beyond any applicable grace or notice and cure periods under the
Lease, Tenant shall have one (1) option to renew this Lease, for a term of three
(3) years ("Renewal Term"). Tenant must notify Landlord of its intent to renew
in writing not later than one hundred eighty (180) days prior to expiration of
the then current term. Tenant's failure to deliver the notice of exercise prior
to such deadline shall be deemed to be a waiver by Tenant of its right to renew
the term of this Lease, time being of the essence. All terms and conditions of
this Lease shall be applicable during any Renewal Term except that the amount of
Base Rent charged for the Renewal Term shall be the then "Prevailing Market
Rent," which shall be the rent for properties comparable to the Property in the
Naples, Florida area; provided, however, that in no event shall the Prevailing
Market Rent be deemed to be less than the Base Rent payable under this Lease
during the lease year immediately preceding the first lease year of the Renewal
Term. If within thirty (30) days following delivery of Tenant's notice of his
intent to renew, Landlord and Tenant have not mutually agreed on the Prevailing
Market Rent for the Renewal Term in question, then within ten (10) days after
the expiration of such thirty-day period, each party shall give written notice
to the other setting forth the name and address of a Broker (as hereinafter
defined) selected by such party who has agreed to act in such capacity, to
determine the Prevailing Market Rent. If either party shall fail to select a
Broker as aforesaid, the Prevailing Market Rent shall be determined by the
Broker selected by the other party. Each Broker shall thereupon independently
make his determination of the Prevailing Market Rent within twenty (20) days
after appointment of the second Broker. If the two Brokers' determinations are
not the same, but the higher of such two values is not more than one hundred ten
percent (110%) of the lower of them, then the Prevailing Market Rent shall be
deemed to be the average of the two values. If the higher of such two values is
more than one hundred ten percent (110%) of the lower of them, then the two
Brokers shall jointly appoint a third Broker within ten (10) days after the
second of the two determinations described above has been rendered. The third
Broker shall independently make his determination of the Prevailing Market Rent
within twenty (20) days after his appointment. The highest and the lowest
determinations of value among the three Brokers shall be disregarded and the
remaining determination shall be deemed to be the Prevailing Market Rent. Within
thirty (30) days after the Prevailing Market Rent is determined as aforesaid,
the parties shall execute an amendment to this Lease setting forth the new Base
Rent to be paid for the Renewal Term. Each party shall be responsible for the
fees and expenses charged by the Broker engaged by it, and shall share equally
the fees and expenses charged by the third Broker, if any.
Tenant shall be required to exercise its option to renew with respect to all
(and not less than all) of the Property then under this Lease, unless otherwise
mutually agreed upon.
[Signatures on following page]
WITNESS the hands and seals of the parties hereto the day and year
first above written.
LANDLORD:
/s/ Xxxxx Xxxxxx
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XXXXX X. XXXXXX
TENANT:
VITARICH LABORATORIES, INC.
By: /s/ Xxxxxxx Xxxxxx
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Title: Vice President
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