EXHIBIT 10.43
STANDARD FORM COMMERCIAL LEASE
1. PARTIES
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Xxxxxxx X. Xxxxxxx ("Landlord") having an office address of 00 Xxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx, 00000 hereby leases to Annie's Homegrown, Inc.
("Tenant") having an office address prior to occupancy of the Premises of: 000
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx; and after occupancy of the Premises of:
000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx and Tenant hereby leases from Landlord
the following described premises (the "Premises") upon the terms and conditions
hereinafter set forth.
2. PREMISES
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A. Second floor space comprising approximately 3,400 rentable square feet
known as and numbered 000 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx in the building
(the "Building") located on the property known as and numbered 000-000 Xxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx (the Building and the land on which it is
situated being hereinafter referred to as the "Property"). The approximate
location of the boundaries of the Premises is shown on the sketch plan attached
hereto as Exhibit A.
B. Tenant shall have the non-exclusive right to use in common with others
the following parking spaces situated on another property owned by Landlord
located at 00 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx and known as Princess
Plaza ("Princess Plaza"): two (2) parking spaces at the front of the Princess
Plaza and three (3) spaces at the rear of the Princess Plaza property. Such
rights shall always be subject to reasonable rules and regulations from time to
time established by Landlord pursuant to Paragraph 25.C and to the right of
Landlord to designate and change from time to time areas and facilities so to be
used.
3. TERM
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A. The Original Term of this lease shall be for five (5) years commencing
on the date Landlord delivers possession of the Premises to Tenant with
Landlord's Work substantially complete (the "Commencement Date") and ending at
midnight on the day prior to the fifth anniversary of the Commencement Date.
B. So long as Tenant has never been in default hereunder, Tenant shall
have one (1) option to extent the term of this lease for an additional period of
five (5) years (the "Option Period") commencing upon the expiration of the
Original Term, provided Tenant gives landlord notice of such election at least
nine (9) months prior to the expiration of the Original Term. If
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Tenant fails to so notify Landlord on or before nine (9) months prior to the
expiration of the Original Term then within fifteen (15) days following the date
which occurs nine (9) months prior to the expiration of the Original Term,
Landlord shall notify Tenant of Tenant's failure to so extend, whereupon Tenant
shall have until the date which occurs eight (8) months prior to the expiration
of the Original Term to so notify Landlord in writing of its election, if any,
to extend the Original Term. If Tenant fails to so notify Landlord at such time,
then Tenant shall be deemed to have elected not to exercise its option to
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extend the Original Term. Prior to the exercise by Tenant of any election to
extend the Original Term, the word "Term" or any equivalent expression shall
mean the Original Term as set forth in this Paragraph 3.B. After the exercise by
Tenant of any such election, the word "Term" or any equivalent expression shall
mean the Original Term plus the Option Period. Except as expressly otherwise
provided in this lease, all agreements and conditions contained in this Lease
shall apply to the additional period to which the Original Term shall be
extended as aforesaid. If Tenant shall exercise its election to extend this
Lease, the Term shall be extended without the requirement of any action on the
part of Landlord.
4. BASE RENT
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Tenant shall pay to Landlord rent ("Base Rent") as follows:
LEASE ANNUAL
YEAR BASE RENT
1 $34,000
2 $35,700
3 $37,400
4 $39,100
5 $40,800
*6-10 increased by $1,700 ($.50 per rentable square
foot) per year in each and every year of the
Option Period.
*Provided the term is extended through the Option Period as set forth in
Paragraph 3.B.
Base Rent shall be payable to Landlord at Landlord's office in advance on the
first day of each month in monthly installments of 1/12th of the annual amount
thereof. Any rent due for a partial month at the beginning or end of the lease
term shall be prorated. As used herein the term "Lease Year" shall mean the
consecutive twelve (12) month period beginning each year on the Commencement
Date or anniversary thereof.
5. SECURITY DEPOSIT
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Tenant, concurrently with the execution of this Lease, shall deposit with
Landlord the sum of five thousand dollars ($5,000.00) as security for the
faithful and timely payment and performance of the obligations of Tenant under
this Lease. If at any time Tenant shall be in default in any of the provisions
of this Lease, Landlord shall have the right, at Landlord's sole election, to
use said deposits, or so much thereof as may be necessary, in payment of any
rent in default as
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aforesaid and/or in payment of any expense incurred by Landlord on behalf of
Tenant, and/or in payment of any damages incurred by Landlord by reason of such
default of Tenant. In the event that said deposits shall not be utilized for any
such purpose, then any unused portion of such deposits shall be refunded to
Tenant within thirty (30) days after the end of this lease subject to Tenant's
satisfactory compliance with the terms and conditions hereof. Tenant
acknowledges and agrees that Landlord shall not be required to keep said
deposits segregated from Landlord's own funds and that Tenant shall not be
entitled to any interest earned on account of said deposits. The amounts held by
Landlord as a security deposit shall in no way relieve or excuse any default or
delay in the payment of all rent and other sums due under this Lease in a prompt
and timely fashion and Tenant shall have no right to claim a set off of the
Security Deposit against Tenant's liabilities hereunder unless and until
Landlord has elected to retain all or a portion of the same.
6. REAL ESTATE TAXES
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A. Tenant shall pay to Landlord as additional rent 33 1/3% of Landlord's
Real Estate Tax Expense for the Property. For the purpose of this agreement the
Real Estate Tax Expense is defined as the sum of all costs and expenses incurred
by Landlord with respect to all real estate taxes and betterment assessments
assessed against the Property and all buildings and fixtures situated thereon.
At Landlord's option, Tenant shall make monthly payments on account of the Real
Estate Tax Expense with each payment of Base Rent, in an amount reasonably
estimated by Landlord to equal 1/12th of Tenant's actual annual share of the
Real Estate Tax Expense.
B. Promptly after the end of each calendar year the Landlord shall
determine the actual amount of real estate taxes for the previous calendar year.
If the monthly payments theretofore made by Tenant for such period exceed the
Tenant's actual share of the Real Estate Tax Expense, then Landlord shall notify
Tenant and credit the amount of overpayment against any obligations of Tenant
then due, or next becoming due. If the monthly payments made by Tenant on
account of the Real Estate Tax Expense are less than Tenant's share of such
charges then Landlord shall notify Tenant of the amount due and Tenant shall pay
such amount to Landlord within fifteen (15) days after the date of such notice.
In the event that this Lease was not in effect for the full calendar year the
Tenant's share of the Real Estate Tax Expense shall be prorated accordingly.
7. OPERATING EXPENSES
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Tenant shall pay to Landlord as additional rent 33 1/3% of Landlord's
Operating Expenses for the Property. For the purpose of this agreement Operating
Expenses are defined as the sum of all costs and expenses incurred by Landlord
with respect to the fire and property damage insurance and the general liability
insurance maintained by Landlord from time to time concerning the Property
(including loss of gross income for one (1) year); any utility or services paid
for by Landlord with respect to the Property; and any maintenance, repairs or
replacements performed by Landlord with respect to the Property. There shall
also be included in Landlord's Operating Expenses a sum sufficient to compensate
Landlord for a reasonable management fee, which fee
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shall not exceed the greater of (i) 5% of the gross income generated by the
Property or (ii) 15% of the aggregate of the Real Estate Tax Expense and
Operating Expenses for the Property. Tenant's share of Landlord's Operating
Expenses shall be due and payable within fifteen (15) days of presentment of
bills for the same. At Landlord's option, Tenant shall make monthly payments on
account of Landord's Operating Expenses with each payment of Base Rent in an
amount reasonably estimated by Landlord to equal 1/12th of Tenant's annual share
of Landlord's Operating Expenses. If Tenant's monthly payments on account of the
Operating Expenses is more or less than Tenant's annual share of such charges
then an adjustment shall be made as provided in Paragraph 6.B.
8. UTILITIES
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Tenant shall pay all charges for utilities used by the Premises from and
after the date Tenant commences any of Tenant's Work in the Premises. Such
charges shall include, but not be restricted to, any and all charges for heat,
sewer and water, gas, oil, air conditioning, telephone and electricity. Tenant
further indemnifies Landlord from all liability that may be incurred as a result
of nonpayment of these charges. Tenant shall make all necessary arrangements to
provide for the separate billing (directly to Tenant) of any charges for
utilities which are separately metered. As of the date of execution of this
Lease, all such utilities (other than water and sewer) are separately metered to
the Premises. Water and sewer charges will be prorated by Landlord based on
Tenant's usage of same as determined by the use of separate meters or submeters
for the other tenant(s) in the Building, if any.
9. USE OF LEASED PREMISES
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Tenant shall use the Premises only for the purpose of general and
administrative offices, and not for any other purpose.
10. COMPLIANCE WITH LAWS
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Tenant agrees that no activities shall be conducted in the Premises or use
made thereof which will be unlawful, or contrary to any federal, state or local
laws, by-laws, ordinances, codes, rules or regulations in force in the city or
town in which the Premises are situated. Tenant shall at all times be fully
responsible for complying with all federal, state or local laws, bylaws,
ordinances, codes, rules and regulations applicable to Tenant's use and
occupancy of the Premises.
11. CONDITION OF PREMISES/ALTERATIONS AND ADDITIONS
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A. Except as expressly provided in paragraph 11.C below, the Premises are
being leased on an absolutely "AS IS" basis. No representations, except such as
are contained herein or endorsed hereon, have been made to Tenant respecting the
condition of the Premises and Landlord shall have no obligation to make any
repairs or improvements to the Premises except as may be expressly stated
herein. Without limiting the foregoing the Landlord makes no warranty or
representation with respect to the accuracy of any information shown on Exhibit
A, or with respect to the actual square footage of the Premises. In the event
that any alterations, in or to the
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Premises are required to meet the needs of Tenant, then Tenant agrees that
Tenant will make all such alterations, in or to the Premises at the sole
expense of Tenant. Except as described in this Lease, Tenant shall not make any
alterations or additions to the structural or mechanical components of the
Building, but may make non-structural alterations provided Landlord consents
thereto in writing, which consent shall not be unreasonably withheld. Tenant
agrees that Tenant's Work and any alterations or additions to the Premises will
be performed in a good and workmanlike manner. Any such work shall also be done
in compliance with all laws, codes, rules and regulations pertaining to such
work and Tenant shall be responsible for obtaining any permits and approvals
that may be required in connection with any such work. Any alterations or other
improvements made by Tenant shall be removed by Tenant at the time Tenant
vacates the Premises, and Tenant shall restore the Premises to the same
condition they were in immediately before the making of such alterations,
partitions, additions or improvements unless Landlord otherwise elects. If
Landlord so elects, any alterations, additions or other improvements, made by
Tenant shall become the property of Landlord. Tenant agrees that Tenant shall
indemnify and save Landlord harmless from and against all expenses, liens,
damages or claims arising in connection with the making of any repairs,
alterations, partitions, additions or improvements in or to the Premises. The
parties agree that Tenant shall never have the right to cause the creation of a
lien over the property demised hereunder, and Tenant shall immediately pay or
cause to be discharged or rendered ineffective any lien or encumbrance over the
Property or the interests of Landlord.
B. All partitions, alterations, betterments and improvements and all
personal property of any kind or description whatsoever in the demised premises
shall be at Tenant's sole risk, and Landlord shall not be liable for any damage
done to, or loss of such partitions, alterations, betterments, improvements or
such personal property.
C. Prior to the Commencement Date, Landlord, at Landlord's expense, shall
build-out the Premises in accordance with mutually agreed upon plans which are
attached hereto as Exhibit B.
12. MAINTENANCE OF PREMISES
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A. Landlord agrees to keep in good order, condition and repair the roof,
exterior walls, and structure of the Premises, and any HVAC, electrical,
plumbing, and fire protection systems serving the Premises, all insofar as they
effect the Premises, except that Landlord shall in no event be responsible to
Tenant for any condition in the Premises or the Building caused by any act or
neglect of Tenant or Tenant's servants, employees, agents, licensees, invitees
and contractors and any person or entity acting on behalf of any of the
foregoing.
B. Tenant agrees to maintain and keep, at Tenant's cost and expense, the
entire Premises at all times in good order, repair and condition with the glass
whole. Without limiting the foregoing, Tenant shall be responsible for
performing all necessary maintenance, repairs, or replacements with respect to
the following: any floor or wall coverings in the Premises, any
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window treatments in the Premises, the entire storefront, suspended ceiling
system, all windows, window frames, doors, door frames and all associated locks
and other hardware. Tenant shall not permit the Premises to be overloaded,
damaged, stripped, or defaced nor suffer any waste. Tenant shall at all times
keep the Premises and all sidewalks and other common areas bordering the
Premises in a clean and neat condition. The removal of snow and ice from the
sidewalks bordering upon the Premises, whether from natural or unnatural
accumulation, shall be Tenant's responsibility.
C. In the event Tenant introduces to the Premises personnel or equipment
which overloads the capacity of the Building's electrical, heating, air
conditioning, plumbing or fire protection systems or in any other way interferes
with the ability of such systems to perform adequately their proper functions,
supplementary systems may, at Landlord's option, be provided by Landlord, if and
as needed, at Tenant's expense.
13. ASSIGNMENT-SUBLEASING
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A. Tenant shall not assign or sublet the whole or any part of the
Premises or permit the Premises to otherwise be used or occupied by anyone than
Tenant without Landlord's prior written consent, which consent shall not be
unreasonably withheld. However, without limitation, Landlord shall not be deemed
to be unreasonable in withholding its consent to a proposed assignment or
sublease if (i) the proposed assignee or subtenant does not possess substantial
business experience and a good business reputation, or (ii) the proposed
assignee or subtenant is not in sound financial condition or (iii) the proposed
assignee or subtenant does have a minimum level of net worth or shareholder's
equity equivalent to Tenant as of the date of the proposed assignment or
subletting. It shall be a condition of the validity of any assignment that the
assignee agrees directly with Landlord, by written instrument in form
satisfactory to Landlord, to be bound by all the obligations of Tenant
hereunder, including, without limitation, the covenant against further
assignment and subletting. No assignment or subletting shall relieve Tenant from
its obligations hereunder and Tenant shall remain fully and primarily liable
therefor.
B. If this Lease be assigned, or if the Premises or any part thereof be
sublet or occupied by anyone other than Tenant, Landlord may, at any time and
from time to time, collect rent and other charges from the assignee, subtenant
or occupant, and apply the net amount collected to the rent and other charges
herein reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of this covenant, or the acceptance of the assignee,
subtenant or occupant as a tenant or a release of Tenant from further
performance by Tenant of its obligations hereunder. The consent by Landlord to
an assignment or subletting shall in no way be construed to relieve Tenant or
any successor from obtaining the express consent in writing of Landlord to any
further assignment or subletting.
C. In connection with any proposed assignment or subletting, Tenant shall
promptly provide Landlord with such information as to the proposed assignee or
subtenant and as to the proposed business arrangement between the proposed
assignee or subtenant and Tenant as Landlord may reasonably request.
Furthermore, Tenant shall promptly reimburse Landlord for all
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reasonable attorney's fees incurred in connection with any request by Tenant for
Landlord's consent to any such assignment or sublease.
14. SUBORDINATION
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This lease shall be subject and subordinate to any and all mortgages, deeds
or trust and other instruments in the nature of a mortgage, now or any time
hereafter, a lien or liens on the property of which the Premises are a part.
Tenant shall, when requested, promptly execute and deliver such written
instruments as shall be necessary to show the subordination of this lease to
said mortgages, deeds and trust or other such instruments in the nature of a
mortgage.
15. LANDLORD'S ACCESS
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Landlord shall have the right to enter the Premises at all reasonable hours
for the purpose of inspecting or making repairs to the same, for purposes of
installing, repairing or replacing any portions of the demising partitions or
mechanical systems of the Building such as the plumbing, electrical, telephone,
fire protection, and security systems including any wires, lines, pipes,
conduits and the like, and for the purpose of showing the Premises to
prospective or existing mortgagees, purchasers or tenants. Landlord shall have
the right to enter the Premises at any hour for the purpose of making emergency
repairs. To effectuate Landlord's foregoing rights of access, at Landlord's
request Tenant shall promptly deliver to Landlord a duplicate set of keys to the
Premises. At any time within eight (8) months before the expiration of the term,
Landlord may affix to any suitable part of the Premises a notice for letting or
selling the Premises or the Property and keep the same so affixed without
hindrance or molestation.
16. INDEMNIFICATION AND LIABILITY
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A. Tenant shall indemnify and hold Landlord harmless from all claims of
whatever nature (a) arising from any injury, loss, or damage whatsoever to any
person or property occurring on the Premises or the sidewalks adjacent thereto,
or (b) caused by the negligent or intentional act or omission of Tenant, or
Tenant's agents, employees or independent contractors. This indemnity and hold
harmless agreement shall include indemnity against all costs and expenses
(including, without limitation, reasonable attorneys fees) incurred in
connection with any such claim or proceeding brought thereon, or the defense
thereof.
B. Landlord shall not be liable for any damages whatsoever nor shall the
rental hereinbefore stipulated be withheld or abated for failure to furnish
water, heat, cooling, electric, oil, or other service, when such failure to
furnish or to delay in furnishing is occasioned by needful repairs, renewals,
additions or improvements or in whole or in part by any strike, lock-out or
other labor controversy or by inability to secure oil after reasonable effort to
do so, or by any act or default of Tenant or other parties or by any causes
beyond the control of Landlord, nor shall Landlord be liable for any act or
default of the janitors or other employees not authorized by Landlord, and such
failure, delay or default in furnishing water, heat, cooling, electric, oil, or
other service or unauthorized act or default of the janitors or employees shall
not be considered or
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construed as an actual or constructive eviction of Tenant by Landlord nor shall
it in any way operate to release Tenant from the prompt and punctual performance
of each and all of the covenants and agreements of this Lease.
C. Tenant shall not be entitled to withhold or xxxxx its rent and
Landlord shall not be liable for damage or for loss suffered by the business or
occupation of Tenant arising from any act or neglect of co-tenants or other
occupants of the Building (or of their employees) or of other persons, or from
earthquake, windstorm, fire, boiler explosion, steam, sewerage, illuminating
gas, sewer gas or odors or by the bursting or leaking of water, gas, sewer or
steam pipes, or plumbing or electrical works, electric wires, overflowing of
water, or any other kind of casualty by equipment or appliances, or cause in any
other manner whatsoever.
D. Landlord shall in no event be in default in the performance of any of
its obligations hereunder or liable to Tenant for damages unless and until
Landlord shall have failed to perform such obligations within thirty (30) days
or such additional time as is reasonably required to correct any such default
after notice by Tenant to Landlord properly specifying wherein Landlord has
failed to perform any such obligation.
17. INSURANCE
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A. Tenant shall, at Tenant's expense, at all times from and after the
date that Tenant is in possession of the Premises procure and continue in force
for the benefit of Landlord and Tenant, commercial gereral liability insurance
insuring Landlord and Tenant against any and all claims for damages for damages
for injuries to persons and/or property occuring in, upon or about the Premises,
or Tenant's use thereof or conduct of business therein, and shall include
coverage for products/completed operations, personal injury, broad form property
damage, extended bodily injury, and broad form contractual liability. The
minimum limit of liability carried on such insurance shall be one million
dollars ($1,000,000) per occurence with any aggregate limit applying only to
products/completed operations, personal injury and constractual liability.
However, if the policy contains a general policy aggregate which applies to
coverages other than the aforementioned coverages, Tenant shall purchase minimum
limits of one million dollars (1,000,000) per occurrence, two million dollars
($2,000,000) aggregate per location. Such insurance shall be written on an
"occurrence" basis and not on a "claims made" basis.
B. Any personal property, merchandise, inventory, equipment or fixtures
that are placed or stored by Tenant in the Premises including loss of use of
such personal property, merchandise, inventory, equipment or fixtures shall be
at Tenant's sole risk. Tenant agrees to maintain, at Tenant's own expense, fire
and extended coverage property damage insurance with respect to personal
property, equipment and store fixtures, tenant improvements, and interior finish
and build-out to the Premises located in the Premises in an amount not less
than the replacement cost thereof. Tenant shall also maintain, at Tenant's own
expense, insurance against loss of Business Income and for losses covered by
so-called "Extra Expense" insurance coverage. In no event shall Landlord be
responsible for repairing or replacing any damage or destruction to
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any doors, door frames, windows, window frames or glass storefront serving the
Premises, or for any claim resulting from Tenant's loss of business.
Tenant shall not permit any use of the Premises which will make
voidable any insurance on the Property or on the contents of the Property, or
which shall be contrary to any law or regulation from time to time established
by the New England Fire Insurance Rating Association, or any similar body
succeeding to its powers. Tenant further agrees that, in the event that Tenant
shall do or permit any thing to be done in or upon the Premises which would
increase the rate of insurance on the Property above the standard rate that
would normally apply to a building used for dry goods use. Tenant will promptly
pay to Landlord, on demand, any such increase resulting therefrom, which shall
be due and payable as additional rent hereunder.
C. Tenant agrees to maintain worker's compensation insurance providing
statutory limits including employer's liability insurance with current limits of
one hundred thousand dollars ($100,000) for each additional injury and, with
respect to bodily injury by disease, one hundred thousand dollars ($100,000)
each employee and five hundred thousand dollars ($500,000) per policy year.
D. All of the insurance policies required to be maintained pursuant to
this Lease shall designate the Landlord as an additional insured. Such insurance
shall be obtained from companies licensed to do business of such nature in the
Commonwealth of Massachusetts and which have a Best's Rating of "A VII" or
better. Tenant shall deposit with Landlord certificates for all insurance
required to be maintained by Tenant at lease fifteen (15) days prior to the
commencement of the term, and thereafter within thirty (30) days prior to the
expiration of any such policies. Such certificates shall state that in the event
of cancellation or material change written notification shall be given to
Landlord at least thirty (30) days in advance of such cancellation or material
change. However, if Tenant, having used all reasonable efforts is unable to have
such certificate so state, then at least such certificate shall state that in
the event of such cancellation or material change in coverage, the insurer shall
endeavor to mail written notice thereof to Landlord at least ten (10) days prior
to such cancellation or material change, and in such event Tenant shall promptly
notify Landlord of any such cancellation or change upon receipt by Tenant of
written notice from the insurer thereof.
E. If Tenant fails at any time to maintain the appropriate insurance or
provide Landlord with certificate that it has the proper insurance as herein
provided, Landlord, without prejudice to his other remedies, may declare Tenant
in default and/or take out such insurance and charge the cost thereof to Tenant
with interest at the rate hereinafter provided for late payments.
F. Insofar as, and to the extent that, the following provision may be
effective without invalidating or making it impossible to secure insurance
coverage obtainable from responsible insurance companies doing business in the
locality in which the Property is located (even though extra premiums may
result therefrom), Landlord and Tenant mutually agree that, with respect to any
hazard, the loss from which is covered by insurance then being carried by them,
respectively, the one carrying such insurance and suffering such loss releases
the other of any from any and all claims with respect to such loss to the extent
of the insurance proceeds paid with respect thereto;
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and they further mutually agree that their respective insurance companies shall
have no right of subrogation against the other on account thereof.
18. FIRE / EMINENT DOMAIN
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A. ABATEMENT OF RENT. If the Premises shall be damaged by fire or
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casualty without the fault or neglect of Tenant or Tenant's agents, employees or
contractors, the Base Rent payable by Tenant shall xxxxx proportionately for the
period in which, by reason of such damage, there is substantial interference
with Tenant's use of the Premises, having regard to the extent to which Tenant
may be required to discontinue Tenant's use of all or a portion of the Premises,
but such abatement or reduction shall end if and when Landlord shall have
substantially restored the Premises to the condition in which they were prior to
such damage. If all or any portion of the Premises shall be taken by any
exercise of the power of eminent domain, Base Rent and Operating Expenses
payable by Tenant shall be justly and equitably abated and reduced according to
the nature and extent of the loss of use thereof suffered by Tenant.
B. LANDLORD'S RIGHT OF TERMINATION. If the Premises or the Building are
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substantially damaged by fire or casualty (the term "substantially damaged"
meaning damage of such a character that the same, in Landlord's judgment,
cannot, in ordinary course, reasonably be expected to be repaired within one
hundred and twenty (120) days from the time that repair work would commence), or
if any part of the Property is taken by any exercise of the right of eminent
domain, then Landlord shall have the right to terminate this Lease (even if
Landlord's entire interest in the Premises may have been divested (by giving
notice of Landlord's election so to do within ninety (90) days after the
occurrence of such casualty or the effective date of such taking, whereupon this
Lease shall terminate thirty (30) days after the date of such notice with the
same force and effect as if such date were the date originally established as
the expiration date of this Lease, except that if such damage by fire or
casualty was caused by the fault or neglect of Tenant of Tenant's
Representatives, Landlord may still pursue any and all remedies against Tenant
for such damage, insofar as Landlord has not been reimbursed by its insurance
carrier for such damage and, in any event, Landlord shall retain any rights
which Landlord may have had against Tenant for any failure of Tenant to satisfy
any obligations hereunder prior to such termination date.
C. RESTORATION. If this Lease shall not be terminated pursuant to
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Section 18.B, Landlord shall thereafter use due diligence to restore the
portions of the Premises originally constructed by Landlord to the condition the
same were in prior to the fire or casualty, provided that Landlord's obligation
to restore the Premises shall be limited to the amount of insurance or
condemnation proceeds received by Landlord and available therefor, and shall be
subject to then existing laws, rules, regulations and ordinances. If, for any
reason, such restoration shall not be substantially completed before the
expiration of the 120-day period referred to in Section 18.B
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(which period may be extended for such periods of time as Landlord is prevented
from proceeding with or completing such restoration for any cause beyond
Landlord's reasonable control, but in no event for more than an additional
three (3) months), Tenant shall have the right to terminate this Lease by
giving notice to Landlord thereof within thirty (30) days after the expiration
of such period (as so extended). Upon the giving of such notice, this Lease
shall terminate unless, within thirty (30) days after such notice, Landlord
substantially completes such restoration. Such right of termination shall be
Tenant's sole and exclusive remedy at law or in equity for Landlord's failure to
so complete such restoration.
D. AWARD. Landlord shall have and hereby reserves and excepts, and
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Tenant hereby grants and assigns to Landlord, all rights to recover for damages
to the Property, the Premises and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking, damage or
destruction, and by way of confirming the foregoing, Tenant hereby grants and
assigns, and covenants with Landlord to grant and assign to Landlord (by
execution of such instruments as Landlord may reasonably require), all rights to
such damages or compensation. If necessary, Tenant will join with Landlord in
any action for the recovery of such damages and reasonably cooperate with
Lanlord in prosecution of such action. Nothing contained herein shall be
construed to prevent Tenant from prosecuting in any condemnation proceedings a
claim for the value of any of Tenant's store fixtures or equipment installed in
the Premises by Tenant at Tenant's expense and for relocation expenses, provided
that such action shall not affect the amount of the award made to Landlord by
such taking authority.
19. DEFAULT
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A. The following shall constitute "Events of Default" for purposes of
this Lease:
(i) Tenant shall fail to pay any installment of rent or other sum
due Landlord on or before the date such sum was due and payable; or
(ii) Tenant shall fail to observe or perform any other of Tenant's
obligations under this lease and such failure shall not be corrected within
thirty (30) days after written notice thereof provided however, that if the
default is of a nature which cannot be cured within such thirty (30) day period,
the time within which to cure shall be reasonably extended so long as Tenant
shall commence to cure within such thirty (30) day period and thereafter
diligently and expeditiously proceeds to complete such cure; or
(iii) Tenant shall file for relief under federal or state bankruptcy
laws or be declared bankrupt or insolvent according to law, or, if any
assignment shall be made of Tenant's property for the benefit of the creditors,
B. Upon the occurrence of any of the foregoing Events of Default,
Landlord shall have the right at any time thereafter, to declare the term of
this lease ended, effective upon the giving of notice of such termination to
Tenant. Upon the giving of notice of the exercise of such right of termination,
Landlord shall also have the right to re-enter and take possession of the
Premises and to remove Tenant's signs and other property and to store the same
at Tenant's
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expense without prejudice to any remedies which might be otherwise be available
under this Lease or by law. Notwithstanding any such termination, Tenant shall
remain fully liable to Landlord for all of the obligations of Tenant as provided
in this Lease. Tenant shall indemnify and hold Landlord harmless from all
damages incurred by Landlord as a result of the termination of this Lease due to
Tenant's default including without limitation all loss of rents and additional
rent and any attorneys' fees, court costs, brokerage fees paid in connection
with this Lease, and any costs and expenses incurred by Landlord in connection
with re-letting the Premises to another tenant. All payments of the Base Rent
and additional rent shall be paid in monthly installments by Tenant on the first
day of each month as the same would have become due under the terms of this
Lease had the lease term not been terminated and any suit brought to collect the
amount of the deficiency for any month shall not prejudice in any way the rights
of Landlord to collect the deficiency for any subsequent month by similar
proceedings. Landlord upon termination of this Lease due to a Default of Tenant
or at any time thereafter, shall have the right, in lieu of collecting its
actual damages payable in installments as above provided, to recover from Tenant
liquidated damages, payable on demand, equal to the then present value
(discounted at the current prime rate) of the excess of the amounts which would
have been payable under this Lease from the date of such demand to the end of
the period which would otherwise have constituted the balance of the term of
this Lease, over the actual cash value of the rents received (in advance) for
the Premises for the same period. For this purpose, in computing the amount of
additional rent, the amounts to be included for real estate taxes, operating
expenses and other amounts required by this Lease to be paid by Tenant shall be
deemed, for each month, to be equal to 1/12th of the amount of the item (in the
aggregate) for the twelve (12) months preceding the date of demand. Such
election shall not diminish or impair Landlord's remedies hereunder for periods
prior to the date of the exercise of such election.
C. In case this Lease is terminated due to an Event of Default, Landlord
may (i) re-let the Premises or any part or parts thereof, either in the name of
Landlord or otherwise, for a term or terms which may at Landlord's option be
equal to or less than or exceed the period which would otherwise have
constituted the balance of the term of this Lease and may grant concessions or
free rent to the extent that Landlord considers advisable and necessary to re-
let the same and (ii) may make such alterations, repairs and decorations in the
Premises as Landlord in its sole judgment considers advisable and necessary for
the purpose of re-letting the Premises; and such re-letting or the making of
such alterations, repairs and decorations shall not operate or be construed to
release Tenant from liability hereunder as aforesaid. Landlord shall in no event
be liable in any way whatsoever for failure to re-let the Premises, or, in the
event that the Premises are re-let, for failure to collect the rent under such
re-letting. Tenant hereby expressly waives any and all rights of redemption
granted by or under any present or future laws in the event of Tenant being
evicted or dispossessed, or in the event of Landlord obtaining possession of the
Premises.
D. If Tenant shall fail or default, after reasonable notice thereof, to
observe or perform any of the conditions or covenants on Tenant's part to be
observed or performed under any of the provisions in any article of this lease,
Landlord, without being under any obligation to do so and without thereby
waiving such default, may remedy such default for the account of and at the
expense of Tenant and any sums expended by Landlord in remedying any such
default shall
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be immediately due and payable by Tenant.
E. In the event Tenant fails to pay any sums to Landlord on or before the
date the same was due hereunder, Landlord shall be entitled to charge Tenant
interest on any such unpaid sums from the date the same were due and payable at
the rate of 1 1/12% per month compounded monthly. Any such interest charge for
late payment shall be added to and constitute part of the next installment
payment of Base Rent due under this Lease. In the event Tenant fails to pay
rent for more than two (2) months or if more than two (2) of Tenant's checks are
returned for insufficient funds during any consecutive twelve (12) month period
then Landlord shall have the right to require Tenant to make all future payments
by treasurer's or cashier's checks or by certified checks.
20. NOTICE
------
Any notice relating to the Premises or this Lease, shall be mailed
registered or certified mail, return receipt requested, postage prepaid, or sent
via Federal Express or other similar overnight delivery service, to the
addresses set forth on the first page of this Lease or to such other address as
either party may designate by like notice to the other, or, in the case of
Tenant, delivered to the Premises. Time shall be deemed to be of the essence
with respect to any time periods for which notices are required to be given and
for any actions required to be taken in connection therewith.
21. SURRENDER
---------
Upon the expiration or earlier termination of the term of this Lease,
Tenant shall peaceably quit and surrender to Landlord the Premises in a broom
clean and neat condition and in good order, condition and repair, and excepting
only damage by fire or other casualty for which, under other provisions of this
Lease, Landlord is responsible to repair, and ordinary wear and tear. Tenant
shall, if Landlord so requests, remove any signs installed by Tenant and repair
any holes or other damage to the Property caused by the removal of such signs.
Tenant's obligations to observe or perform this covenant shall survive the
expiration or other termination of the Term.
22. ATTORNEY'S FEES
---------------
Tenant agrees to pay all reasonable attorney's fees and any other expenses
incurred by Landlord in connection with the failure of Tenant to perform in a
timely manner any of its obligations under this Lease.
23. SIGNS
-----
Except as otherwise herein provided, Tenant will not place on the exterior
of the Premises or areas inside the Premises which are visible from outside the
Premises (including both interior and exterior surfaces of windows and doors) or
on any part of the Building or the Property outside the Premises, any signs,
lettering, symbols, advertisements, awnings, canopies, curtains,
13
blinds, shades, flag poles, antennas or any other object of any kind without the
prior written consent of Landlord, which consent may be withheld, in Landlord's
sole discretion.
Tenant, at Tenant's expense, shall have the right, subject to Landlord's
prior written consent (which consent shall not be unreasonably withheld), to
install a sign on the front of the Building over the windows serving the
Premises. Tenant shall be responsible for obtaining any permits or approvals
required in connection with any such sign.
No showcases, merchandise, obstructions, signs, or any advertising device
of any kind whatsoever which are incidental to Tenant's business shall be placed
on the sidewalks, or other area outside the Premises, and Landlord may remove
any and all such matter, materials, or appliances, and all signs other than
those herein expressly excepted without notice to Tenant and at Tenant's
expense.
24. REFUSE FACILITIES
-----------------
If Landlord provides for a common dumpster or other trash removal
facilities Tenant agrees to use such dumpster or common trash removal
facilities and to pay its pro rata share of the costs incurred by Landlord in
connection therewith. If Landlord elects not to provide any trash removal
facilities or services then Tenant shall, if Landlord so requests, provide at
Tenant's expense an enclosed dumpster or other refuse facility satisfactory to
Landlord. Said refuse facility shall be placed in the location designated by
Landlord and shall be kept at all times by Tenant in an orderly and sanitary
condition. Tenant shall provide for refuse collection at least once each week or
such increased frequency as may be needed to maintain orderly and sanitary
conditions. At the request of Tenant, Landlord will assist Tenant in identifying
a suitable location for such dumpster. In any event refuse shall be stored and
disposed of as provided by state and local law. No other items shall be stored,
placed or disposed of outside the Premises, and if any articles or objects are
so stored, placed or disposed of due to the act or neglect of Tenant Landlord
may remove and dispose of any such objects or articles without notice to Tenant
and Tenant shall be liable on demand for any costs incurred by Landlord in
connection therewith.
25. OTHER PROVISIONS
----------------
A. No waiver of any condition expressed in this Lease shall be implied by
any neglect of Landlord to declare a default or take any other action on account
of the violation of such condition, and no waiver on any one occasion shall be
deemed to constitute a waiver on any other occasion if such violation shall be
continued or repeated subsequently. All rights and remedies of Landlord under
this Lease shall be cumulative, and the exercise of any right or remedy by
Landlord shall not preclude Landlord from exercising any other rights and
remedies herein provided or allowed by law.
B. The words "Landlord" and "Tenant" wherever used herein shall be
construed to mean landlords and tenants in all cases where there is more than
one person or entity named as
14
Landlord or Tenant, and the necessary grammatical changes required to make the
provisions hereof apply either to corporations or individuals, men or women,
shall in all cases be assumed as though having been, in each case, fully
expressed as the context so requires. Each of the provisions of this Lease shall
extend to, and shall, as the case may require, bind or inure to the benefit not
only of Landlord and of Tenant, but also of their respective heirs, successors,
assigns and legal representatives.
C. Landlord reserves the right to make such other and further reasonable
rules and regulations as in his judgment may from time to time be needful for
the safety, care, cleanliness, and proper operation of the Property, and for the
preservation of good order therein, and any such other or further rules and
regulations shall be binding upon the parties hereto with the same force and
effect as if they had been inserted herein at the time of the execution hereof.
D. Recognizing that Landlord may find it necessary to establish to third
parties, such as accountants, banks, mortgagees, or the like, the then current
status of performance hereunder, Tenant, on the written request of Landlord made
from time to time, shall promptly furnish a written statement that the Lease is
in full force and effect and is unmodified except as otherwise stated; that
Tenant has accepted possession of the Premises and that all improvements (if
any) required by the terms of the Lease to be made by Landlord have been
completed to the satisfaction of Tenant; that no rent under the Lease has been
paid more than 30 days in advance of its due date; and that Tenant has no
charge, lien, or claim of offset under the Lease or otherwise, against rents or
other charges due or to become due thereunder. Such statement shall be furnished
within ten (10) business days after a request has been made for same.
E. After receiving written notice from Landlord stating the name and
address of any person, firm, or other entity, holding a first mortgage which
includes as a part of the mortgaged premises the Premises, Tenant shall, so long
as such mortgage is outstanding, be required to give to such holder the same
notice as is required to be given to Landlord under the terms of this Lease.
Notice to the holder of the mortgage shall be a condition precedent to the
validity and effectiveness of any notice given by Tenant to Landlord pursuant to
this Lease, but such notice may be given by Tenant to Landlord and such holder
concurrently. The holder of a first mortgage shall have the same rights as
Landlord (but not the obligations) to cure, on behalf of Landlord, and default
of Landlord hereunder and such cure shall be deemed to be the act of Landlord
for all purposes hereunder.
F. With reference to any assignment by Landlord of Landlord's interest in
this Lease, or the rents payable hereunder, conditional in nature or otherwise,
which assignment is made to the holder of the first mortgage on the Premises,
Tenant agrees;
(1) that the execution thereof by Landlord and the acceptance thereof
by the holder of such mortgage, shall never be deemed an assumption by such
holder of any of the obligations of Landlord hereunder, unless such holder
shall, by written notice sent to Tenant, specifically otherwise elect; and
15
(2) that, except as aforesaid, such holder shall be treated as having
assumed Landlord's obligations hereunder only upon foreclosure of such holder's
mortgage and the taking of possession of the Premises.
G. Tenant warrants and represents that Tenant has dealt with no broker in
connection with the consummation of this Lease and in the event of any brokerage
claim against Landlord made by any broker predicated upon prior dealings with
Tenant, Tenant agrees to defend the same and indemnify Landlord against any such
claim.
H. Landlord shall be liable under this Lease only while owner of the
Premises and if Landlord shall be one or more persons acting in a trustee or
other fiduciary capacity, Landlord's obligations hereunder shall not be binding
upon such fiduciaries individually nor upon any beneficiary or shareholder for
whom such fiduciaries act, but shall be binding only upon a fiduciary as
fiduciary and upon his trust estate. There shall be no personal liability of any
officer or general or limited partner of Landlord as to any of Landlord's
obligations hereunder, and in the event of a default by Landlord, Tenant shall
look solely to the equity of Landlord in the Property for satisfaction of
Tenant's claim.
L. If Tenant or anyone claiming under Tenant shall remain in possession
of the Premises or any part thereof after the expiration of the leasae term the
person remaining in possession shall be deemed a tenant at will, from month to
month, subject to the provisions of this Lease insofar as the same may be made
applicable to a tenancy from month to month, except that the monthly Base Rent
shall be increased by an amount equal to $500 per month, compounded monthly.
J. Tenant agrees and acknowledges that neither Landlord nor Landlord's
officers, agents or employees have made any statements, warranties or
representations whatsoever on which Tenant has relied except as may be expressly
set forth in this Lease. Further, to the extent Landlord or Landlord's officers,
agents or employees may have made any statements, warranties or representations
other than those expressly set forth in this Lease, Tenant hereby releases and
discharges Landlord and Landlord's officers, agents and employees from any and
all claims, demands, causes of action and suits whatsoever which Tenant now has
or at any time hereafter may have by virtue of any such statements, warranties
or representations. This Lease may only be amended or modified pursuant to a
written agreement signed by both parties, and no person other than Xxxxxxx X.
Xxxxxxx (or his heirs, successors, or assigns) shall have any authority to
agree to any amendment or modification of this Leasae on behalf of Landlord.
K. Landlord's submittal of this document to Tenant for review shall not
constitute an offer to lease, and nothing contained herein shall be deemed to
obligate either Landlord or Tenant until such time as an agreement to lease has
been fully executed by and delivered to, both Landlord and Tenant, with Tenant
concurrently therewith paying to Landlord the security deposit specified in
Paragraph 5 hereof and delivering to Landlord certificates of insurance
evidencing proper insurance coverage pursuant to Paragraph 17 hereof.
16
L. If any term of provision of this Lease, other than Tenant's obligation
to pay rent or other charges, or the application thereof to any person or
circumstances shall be finally held invalid or unenforceable by the court of
last resort having jurisdiction, the remainder of this Lease, or the application
of such term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and
each term and provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
M. Prior to the execution of this agreement and within ninety (90) days
of the close of tenant's fiscal year throughout the Term, Tenant agrees to
provide Landlord with current, audited financial statements of Tenant; provided,
however, Tenant shall not be required to furnish Landlord with such financial
statements prior to submitting same to the Securities and Exchange Commission.
--------
WITNESS the execution hereof, under seal, in any number of counterpart
copies, each of which shall be deemed an original for all purposes, as of the
_______ day of January, 1998.
LANDLORD
_______________________ __________________________
17
Xxxxxxx X. Xxxxxxx Witness
TENANT;
Annie's Homegrown Inc.
By: _____________________________ _____________________
Xxxx X. Xxxxxxx Witness
Its:President and Chief Operating Officer
_____________________________
hereunto duly authorized
By: _____________________________ ____________________
Xxxx Xxxxx Witness
Its:Chief Financial Officer
_____________________________
hereunto duly authorized
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