EXHIBIT 10.1
LEASE
This Lease dated the 4th day of January, 2005, at Alameda, California,
between Ari Ben Corporation, a California corporation, ("Landlord") and Allergy
Research Group, a Florida corporation ("Tenant").
1. DESCRIPTION OF PREMISES. For and in consideration of the agreement
of Tenant to pay the rent and other sums provided for herein and to perform the
covenants, agreements and conditions to be performed, Landlord hereby leases to
Tenant and Tenant hereby hires from Landlord those certain premises (hereinafter
called the "Premises") consisting of a building of approximately 29,821 square
feet, as illustrated in attached Exhibit "A", which is commonly known as and
located at 0000 Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxx, subject to the terms and
provisions contained in this Lease.
2. USE OF PREMISES. Tenant agrees the Premises shall be used as offices
and a warehouse and for no other purpose.
3. CONDITION OF PREMISES. The premises are newly constructed. Landlord
will construct Tenant's improvements to the premises, as set forth in Exhibit B.
4. TERM. The term of this Lease shall be for a period of ten (10)
years, commencing February 1, 2005 (the "Commencement Date") and ending January
31, 2015. If Landlord is unable to deliver possession of the Premises to Tenant
on or before February 1, 2005, the Commencement Date shall be extended until the
date that Landlord delivers possession of the Premises to Tenant.
5. BASE RENT-FIRST FIVE YEARS OF LEASE. For and during the first five
years of this Lease, February 1, 2005 to January 31, 2010, Tenant shall pay to
Landlord a minimum rent for the Premises in the total amount of One Million Four
Hundred Forty Thousand Dollars ($1,440,000) in lawful money of the United
States, which Tenant agrees to pay to Landlord without deduction, offset, notice
or demand, at such place(s) as Landlord may designate from time to time in
installments of Twenty Four Thousand Dollars ($24,000) per month payable in
advance by the 1st day of each and every month commencing February 1, 2005.
6. CONSUMER PRICE INDEX RENT ADJUSTMENTS-SECOND FIVE YEARS OF LEASE:
For and during the second five years of this Lease, February 1, 2010 to January
31, 2015, the minimum monthly rent set forth above shall be adjusted each year
on the anniversary date of the commencement of this Lease beginning with the
sixth year. The amount of such adjustment shall be equal to the percentage
change in the Consumer Price Index (all items -- all urban consumers --
1982-1984=100) for the San Francisco - Oakland - San Xxxx area, published by the
United States Department of Labor, Bureau of Labor Statistics (the "Index")
which is published for the calendar month immediately preceding each such
anniversary date over the Index for the calendar month the Lease term commences.
In no event, however, shall the annual rental adjustment during any year of the
Lease term be less than three percent (3%) irrespective of the percentage
increase or decrease in the Index. Such annual increase shall be paid together
with the minimum monthly rent in equal monthly installments, and Landlord shall
notify Tenant of the amount of such monthly payment as soon as it is
ascertained. If the Index is changed so that the base year differs from that
used as of the date immediately preceding the commencement of the base term
hereunder, the Index shall be converted in accordance with the conversion factor
published by United States Department of Labor, Bureau of Vital Statistics. If
the Index is discontinued or revised during the original term hereto, or any
extension thereof, such other governmental Index or computation with which it is
replaced shall be used in order to obtain substantially the same result as would
be obtained if the Index had not been so discontinued or revised.
7. TENANT IMPROVEMENT REIMBURSEMENTS. Prior to the commencement of the
term set forth in Section 4 hereof, Landlord shall complete the Tenant
Improvements to be constructed or installed in the premises pursuant to Exhibit
B attached hereto. The Tenant Improvements shall be deemed completed and
possession of the premises delivered when Landlord has substantially completed
the Tenant Improvements, subject only to the completion of minor items which do
not materially impair the usability of the Tenant Improvements by Tenant, and
Tenant shall accept the premises upon notice from Landlord that the Tenant
Improvements have been so completed. At that time, Landlord shall present Tenant
with copies of all invoices received from Landlord's contractor setting forth
the actual cost of construction of the Tenant Improvements. Tenant shall
reimburse Landlord for the actual cost of construction of the Tenant
Improvements on or prior to the Commencement Date.
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8. SECURITY DEPOSIT. No security deposit has been or will be paid by
Tenant to Landlord.
9. LATE CHARGES. If Tenant fails to pay, when due, the rent or other
payments provided in this Lease, Tenant agrees to pay Landlord a late charge for
each such late payment in an amount equal to two percent (2%) of the delinquent
sum.
10. REPAIRS AND MAINTENANCE. Landlord shall be responsible for
maintenance and repair of the exterior shell of the Premises, including the roof
structure, exterior walls, and structural support. Tenant shall be responsible
for maintenance and repairs of all interior systems of the Premises, including
but not limited to flooring, plumbing, electrical, roof membrane, HVAC and
interior partitions and doorways.
11. TAXES. During the term of this Lease, Tenant shall pay prior to
delinquency, one hundred percent (100%) of all personal property taxes levied
upon the furniture, fixtures and equipment of Tenant and improvements belonging
to Tenant and one hundred percent (100%) of all of the real property taxes and
assessments levied against the Premises. The total amounts due hereunder shall
be paid by Tenant to Landlord thirty (30) days before the date that the first
installment of such real property taxes shall become delinquent.
12. INSURANCE AND INDEMNITY.
12.1 Landlord shall not be liable for any damage or claim of
any kind or for any injury to or death of persons or damage to property of
Tenant or any other person during the term of this Lease from any cause
whatsoever, by reason of the use, occupancy and enjoyment of the Premises by
Tenant or any person holding under or a guest, invitee or licensee of Tenant.
Tenant will indemnify and hold harmless the Landlord from all liability
whatsoever, on account of any such real or claimed damage or injury and from all
liens, claims and demands arising out of the use of the Premises, or any repairs
or alterations which the Tenant may make upon said Premises, but Tenant shall
not be liable for damage or injury occasioned by the intentional wrongful acts
of Landlord and its designated agents, servants or employees unless covered by
insurance Tenant is required to provide. The obligation to indemnify shall
include the retention of reasonable legal counsel and investigation costs, and
all other reasonable costs, expenses and liabilities from the first notice that
any claim or demand is to be made or may be made.
12.2 Tenant will carry and maintain, at its sole cost and
expense, and as further rent due hereunder, the following types of insurance, in
the amounts specified and in the form provided for in this paragraph:
(a) Broad-form comprehensive public liability
insurance policy with limits of not less than $2,000,000 per person and
$2,000,000 per occurrence insuring against any and all liability of the insured
with respect to the Premises or arising out of its maintenance, use or
occupancy, and property damage liability insurance with a limit of not less than
$2,000,000 per accident or occurrence. All such liability insurance and property
damage liability insurance shall specifically insure the performance by Tenant
of the indemnity agreement as to liability for injury to or death of persons and
injury or damage to property.
(b) Policy of glass breakage with liability in a sum
equal to the replacement value of any and all plate glass within the Premises.
However, in the event that Tenant deems the cost of such insurance to be too
expensive, Tenant need not carry such insurance, but Tenant is responsible for
the maintenance of the plate glass within the Premises and is obligated to
repair any glass breakage whenever the same shall occur.
(c) Policy or policies of fire insurance with
standard form extended coverage endorsement to the extent of at least one
hundred percent (100%) of the full insurable value of Tenant's improvements,
fixtures, equipment and merchandise which may from time to time be located
within the Premises and trade fixtures and equipment of any other person which
are in Tenant's possession and which are located within the Premises. The
proceeds from any such policy or policies shall be used for the repair or
replacement of said improvements, fixtures, equipment and merchandise. Tenant
shall be obligated to make all necessary repairs and improvements to the
Premises at Tenant's expense.
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(d) Worker's compensation insurance policies with
respect to all Tenant's employees.
12.3 All policies of insurance to be provided for herein by
Tenant shall be issued by companies having a rating of not less than A and a
financial rating of AAA as rated in the most current available "Best's Insurance
Reports," and qualified to do business in the State of California. Said
policies, shall be issued in the names of Landlord and Tenant and for the mutual
and joint benefit and protection of said parties. All public liability and
property damage policies shall contain a provision that Landlord, although named
as an insured, shall nevertheless be entitled to recover under said policies for
any loss, injury or damage to Landlord, its servants, agents and employees by
reason of the negligence of Tenant.
12.4 Each year Tenant shall deliver to Landlord policies
evidencing the insurance to be procured by Tenant as provided above or deliver
in lieu thereof certificates of coverage from the insurance company or companies
writing the policy or policies, which certificates shall, among other things,
designate the company writing the same, the number of the policy, amount and
provisions thereof. Upon Landlord's written request, duplicate copies of such
certificates of insurance shall be delivered to Landlord's mortgagees. Landlord
will be named as additional insured on all polices which Tenant is required to
maintain.
12.5 All insurance policies shall contain a provision that
such policies shall not be cancelled or terminated without thirty (30) days
prior notice from the insurance company to Landlord. Tenant agrees that on or
before ten (10) days prior to expiration of any insurance policy, Tenant will
deliver to Landlord written notification in the form of a receipt or other
similar document from the applicable insurance company that said policy or
policies have been renewed or deliver certificates of coverage from another good
and solvent insurance company, as described above, for such coverage.
12.6 Tenant shall procure an appropriate clause in, or an
endorsement on, any policy of fire or extended coverage insurance covering the
personal property, fixtures and equipment located in or on the Premises,
pursuant to which the insurance companies waive subrogation or consent to a
waiver of right of recovery against Landlord if it can do so without additional
cost. Tenant agrees that it shall not make any claim or seek to recover from
Landlord any loss or damage to its property or the property of others, resulting
from fire or other hazards covered by such fire and extended coverage insurance.
12.7 Tenant will also pay in full, and prior to delinquency,
all premiums for Landlord's fire and extended coverage insurance for the
Premises.
13. DAMAGE OR DESTRUCTION TO PREMISES. If the Premises or any part
thereof is damaged by fire or other casualty to such extent that the Premises
considered as a whole are rendered untenable to Tenant, Landlord, at its option,
may restore the Premises to substantially the same condition as they were in
immediately prior to such damage, subject to these terms and conditions:
13.1 Within 40 working days after Tenant gives Landlord
written notice of the occurrence of such damage, Landlord shall give written
notice to Tenant of Landlord's intent to restore the same.
13.2 If Landlord fails to give such notice, or fails or is
unable to restore the Premises within 160 working days after the date of
Landlord's written notice to Tenant, either party may terminate this Lease by
giving written notice and Tenant shall be released from all further liability
hereunder. In the event of such termination, Landlord and Tenant shall be
released of any future obligations to each other, except for matters and items
theretofore accrued, unpaid or unperformed. The provisions of sections 1932 and
1933 of the Civil Code of the State of California are hereby waived by Tenant.
13.3 Tenant shall not be released or discharged from any of
its obligations, liabilities, or indebtedness hereunder, should the possession
by Tenant of the Premises be disturbed or interfered with or affected in any
manner whatsoever, and irrespective of how caused or by whom. However, if this
Lease is not terminated as provided in Paragraphs 13.1 and 13.2 above, rent
shall be equitably abated during the time within which and to the extent that
Tenant's normal business operations at the Premises are restricted.
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13.4 In the event Landlord restores the Premises as above
provided, any insurance proceeds received by Tenant on account of damage to the
structure of the Premises shall be used in full for the sole purpose of
defraying the cost of such restoration.
13.5 Anything to the contrary notwithstanding, Landlord and
Tenant waive any rights they may have against the other on account of any loss
occasioned to the Landlord or the Tenant, as the case may be, in its property,
or the buildings upon the Premises, and to agree to have their respective
insurers waive any right of subrogation against the other; such waiver shall
apply only to loss occasioned by acts covered by fire and extended coverage
insurance.
14. EMINENT DOMAIN.
14.1 If the whole of the Premises shall be taken for a public
or quasi-public use or purpose under power of eminent domain, the term of this
Lease shall terminate as of the date actual physical possession thereof shall be
so taken.
14.2 Except as otherwise provided in this Lease, all damages
awarded or other sums or awards paid on account of any condemnation or taking
under the power of eminent domain of the Premises or any portion or portions
thereof shall belong to and be the sole property of Landlord, whether such
damages or other sums are awarded as compensation for loss or diminution in
value of the leasehold, or for the fee of the Premises, or otherwise.
14.3 Tenant in no event shall have any claims whatsoever
against Landlord for loss or diminution in value of the leasehold or for the
value of any unexpired term of this Lease, Tenant hereby expressly waiving any
such right or claim; provided, however, that Tenant shall be entitled to receive
any award or portion thereof made for the taking of any of Tenant's movable
furniture, fixtures and equipment under the power of eminent domain, and for
damages thereto caused thereby and for any cost to which Tenant might be put in
removing Tenant's property.
14.4 A voluntary sale or transfer of all or any part of the
Premises by Landlord to any public or quasi-public body, agency or person,
corporate or otherwise, having the power of eminent domain, either under threat
or condemnation or while condemnation proceedings are pending, shall be deemed
to be a taking under the power of eminent domain for the purposes of this
paragraph.
14.5 In the event this Lease is cancelled or terminated
pursuant to any of the provisions of this paragraph, all rentals and other
charges payable on the part of Tenant to Landlord hereunder shall be paid either
as of the date upon which actual physical possession shall be taken by the
condemnor, or as of the date upon which Tenant ceases doing business in, upon or
from the Premises, whichever last occurs; and the parties shall thereupon be
released from all further liability hereunder.
15. DEFAULT-REMEDIES.
15.1 The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant:
(a) The vacating or abandonment of the Premises by
Tenant.
(b) The failure by Tenant to make any payment of rent
or any other payment required to be made by Tenant hereunder within ten (10)
days after same shall become due and payable.
(c) The failure by Tenant to observe or perform any
of the covenants, conditions or provisions of this Lease to be performed by
Tenant, other than the payment of rent, and such default shall not have been
cured within thirty (30) days after written notice by Landlord or, if such
condition cannot practically be remedied within said thirty (30) day period,
Tenant shall have sixty (60) days from the date of such written notice by
Landlord to remedy the condition provided Tenant timely commences and diligently
prosecutes such remedy.
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(d) If Tenant shall file a petition in bankruptcy, or
insolvency, or for reorganization, or arrangement under the bankruptcy laws of
the United States, or the insolvency laws of any state, or shall voluntarily
take advantage of any such law by answer or otherwise, or shall be dissolved, or
shall make an assignment for the benefit of creditors.
(e) If involuntary proceedings under any such
bankruptcy or insolvency law, or for the dissolution of a corporation, shall be
instituted against Tenant, or if a receiver or trustee shall be appointed for
all or a portion of the property of Tenant, and such proceeding shall not be
dismissed or such receivership or trusteeship vacated within sixty (60) days
after such institution or appointment.
15.2 In the event of any such default or breach by Tenant,
Landlord may at any time thereafter, with or without notice or demand and
without limiting Landlord in the exercise of any right or remedy which Landlord
may have by reason of such default or breach:
(a) Terminate this Lease and Tenant's right to
possession of the Premises and re-enter the Premises and take possession
thereof, and Tenant shall have no further claim to the Premises or under this
Lease; or
(b) Continue this Lease in full force and effect,
re-enter and occupy the Premises for the account of Tenant and collect any
unpaid rental or other charges which have or may thereafter become due and
payable; or
(c) Re-enter the Premises under the provisions of
subparagraph (b), and thereafter elect to terminate this Lease and Tenant's
right to possession of the Premises.
15.3 Should Landlord re-enter the Premises under the
provisions of subparagraphs 15.2 (b) or (c) above, Landlord shall not be deemed
to have terminated this Lease or the obligation of Tenant to pay any rent or
other charges thereafter accruing, unless Landlord notifies Tenant in writing of
Landlord's election to terminate this Lease. In the event of any re-entry or
retaking of possession by Landlord, Landlord shall have the right, but not the
obligation, to remove all or any part of the personal property in the Premises
and to place such property in storage at a public warehouse at the expense and
risk of Tenant.
15.4 Should Landlord elect to terminate this Lease under the
provisions of subparagraphs 15.2 (a) or (c) above, Landlord may recover as
damages from Tenant the following:
(a) The worth at the time of award of any unpaid
rental which had been earned at the time of termination; plus
(b) The worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that Tenant proves could
have been reasonably avoided; plus
(c) The worth at the time of the award of the amount
by which the unpaid rental for the balance of the term after the time of award
exceeds the amount of such rental loss that Tenant proves could be reasonably
avoided; plus
(d) Any other amount necessary to compensate Landlord
for all detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom, including but not limited to any costs or expenses
including attorneys' fees, and costs incurred by Landlord in (a) retaking
possession of the Premises, (b) maintaining the Premises after Tenant's default,
(c) preparing the Premises for re-letting to a new Tenant, including any repairs
or alterations, and (d) re-letting the Premises, including brokers' commissions.
(e) "The worth at the time of the award," as used in
subparagraphs 15.4 (a) and (b) above, is to be computed by allowing interest at
the rate of ten percent (10%) per annum. "The worth at the time of award," as
used in subparagraph 15.4 (c) above, is to be computed by discounting the amount
of the discount rate of the Federal Reserve Bank situated nearest to the
location of the Premises at the time of the award plus one percent (1%).
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15.5 The waiver by Landlord of any breach of any term,
covenant or condition of this Lease shall not be deemed a waiver of such term,
covenant or condition or of any subsequent breach of the same or any other term,
covenant or condition. Acceptance of rent by Landlord subsequent to any breach
hereof shall not be deemed a waiver of any breach other than the failure to pay
the particular rent so accepted, regardless of Landlord's knowledge of any
breach at the time of the acceptance of rent. Landlord shall not be deemed to
have waived any term, covenant or condition unless Landlord gives written notice
of such waiver.
16. NOTICES. All notices to be given by Landlord to Tenant, including
but not limited to three-day notices to pay rent or quit, may be given in
writing and served by depositing the same in the United States Mail, first class
postage prepaid, and addressed to Tenant at the subject Premises. Tenant hereby
expressly waives any requirement of any statute or law now or hereafter in force
to the effect that any such notice or notices must be served by a method other
than service by United States mail. Any notices to be given to Landlord may be
given to it or mailed to the address where the rent is to be paid by Tenant each
month, or to such other address as may be designated in writing by Landlord. Any
notice to be given by Landlord to Tenant may be given to it or mailed to it at
the Leased Premises.
17. SURRENDER OF PREMISES. Upon the expiration or sooner termination of
the of this Lease, including any extension or renewal hereof, and if Tenant has
fully and faithfully performed all of the terms, conditions and covenants of
this Lease to be performed by Tenant, but not otherwise, Tenant shall, at its
sole cost and expense, remove its interior and exterior signs and all of its
movable trade fixtures and equipment and such other movable items Tenant has
installed or placed on the Premises (all of which are hereinafter referred to as
"Tenant's property") from the Premises and repair all damages thereto resulting
from such removal, and Tenant shall thereupon surrender the Premises in the same
condition as they were on the date Tenant opened for business, except for
permitted alterations and modifications as provided herein and reasonable wear
and tear (including damage thereto which Tenant is not required to repair)
excepted. If Tenant has not fully and faithfully performed all of the terms,
conditions and covenants of this Lease to be performed by Tenant, Tenant shall
nevertheless remove Tenant's property from the Premises in the manner aforesaid
within fifteen (15) days after receipt of written direction to do so from
Landlord. In the event Tenant shall fail to remove any of Tenant's property as
provided herein, Landlord may, but is not obligated to, remove all of Tenant's
property and repair all damage to the Premises resulting from such removal, and
store the same in any public or private warehouse, all at Tenant's expense.
Tenant shall pay to Landlord interest at the rate of ten percent (10%) of the
storage costs per annum from the date of payment by Landlord. Landlord shall
have no liability to Tenant for any loss or damage to Tenant's property caused
or resulting from such removal or otherwise.
18. ABANDONMENT. Tenant shall not abandon or vacate the Premises at any
time during the term hereof. If Tenant shall abandon, vacate, or otherwise
surrender the Premises or be dispossessed of the Premises by process of law or
otherwise, the same shall constitute a default under this Lease on the part of
Tenant and, in addition to any other remedy available to Landlord, any of
Tenant's property left in, upon or about the Premises shall be deemed to have
been abandoned and shall become the property of Landlord. Tenant expressly
waives the benefits of or provision of notice as required by California Civil
Code ss.ss.1980-1991 and/or any similar statute.
19. ASSIGNMENT AND SUBLETTING. Tenant shall not assign this Lease or
any interest therein without the prior written consent of Landlord. Tenant shall
not sublease all or any portion of the Premises without the prior written
consent of Landlord, which consent will not be unreasonably withheld. Unless
Landlord's prior written consent has been obtained, any assignment, transfer,
subletting, occupation or use of the Premises or any interest therein, whether
by voluntary or involuntary act of the Tenant or by the operation of law, shall,
at the operation of Landlord, terminate this Lease.
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20. RIGHT OF ACCESS.
20.1 Landlord, and its authorized agents and representatives,
shall be entitled to enter the Premises at all reasonable times for the purpose
of serving, posting or keeping posted thereon such notices as Landlord may deem
necessary or appropriate for the protection of Landlord, its interests or the
Premises; for the purpose of inspecting the Premises or any portion thereof; and
for the purpose of making necessary repairs to the Premises and performing any
work therein or thereon which Landlord may elect, or be required to make
hereunder at the commencement of this Lease, or which may be necessary to comply
with any laws, ordinances, rules, regulations or requirements of any public
authority or any applicable standard that may from time to time be established
by the applicable Board of Fire Underwriters, the Fire Protective Association,
the Fire Rating Bureau, or any similar body, or which Landlord may deem
necessary or appropriate to prevent waste, loss, damage of or deterioration to
or in connection with the Premises. Nothing in this Lease shall impose or be
deemed to impose any duty on the part of Landlord to do any work of repair,
maintenance, reconstruction or restoration which, under any provision of this
Lease, is required to be done by Tenant; and the performance of any such work by
Landlord shall not constitute a waiver of Tenant's default in failing to do the
same. Landlord may, during the progress of any work on the Premises, keep and
store upon the Premises all necessary materials, tools and equipment. Landlord
shall not in any event be liable for inconvenience, annoyance, disturbance, loss
of business or quiet enjoyment, or other damage or loss to Tenant by reason of
making any such repairs or performing any such work upon the Premises during the
course thereof, and the obligations of Tenant under this Lease shall not thereby
be affected in any manner whatsoever. Landlord shall, however, in connection
with the performance of any such work, cause as little inconvenience,
disturbance or other damage or loss to Tenant as may be reasonably possible
under the circumstances.
20.2 Landlord, and its authorized agents and representatives,
shall be entitled to enter the Premises at all reasonable times for the purpose
of exhibiting the same to prospective purchasers; and, during the final two (2)
months of the term of this Lease, Landlord shall be entitled to exhibit the
Premises for hire or for rent and to display thereon in such manner as will not
unreasonably interfere with Tenant's business the usual "For Rent" or "For
Lease" signs, and such signs shall remain undisturbed on the Premises.
21. EXPENDITURES BY LANDLORD. Whenever under any provision of this
Lease Tenant shall be obligated to make any payment or expenditure, or to do any
act or thing, or to incur any liability whatsoever, and Tenant fails, refuses or
neglects to perform as herein required, Landlord shall be entitled but shall not
be obligated to make any such payment or expenditure, or do any such act or
thing, or to incur any such liability, all on behalf of and at the cost and for
the account of Tenant, and in such event the amount thereof with interest
thereon as hereinafter provided shall be deemed additional rent and shall be
added to and deemed a part of the next installment of rent thereafter becoming
due from Tenant to Landlord. All such amounts shall bear interest at the rate of
ten percent (10%) per annum until repayment by Tenant in full.
22. QUIET POSSESSION. Landlord agrees that Tenant upon paying the rents
and other payments herein required from Tenant, and upon Tenant's performance of
all of the provisions, covenants and conditions of this Lease on its part to be
kept and performed, may quietly have, hold and enjoy the Premises during the
term of this Lease.
23. REMEDIES CUMULATIVE. The various rights, options, elections and
remedies of Landlord and Tenant, respectively, contained in this Lease shall be
cumulative, and no one of them shall be construed as exclusive of any other, or
of any right, priority or remedy allowed or provided for by law and not
expressly waived in this Lease.
24. ATTORNEYS' FEES. Should either party institute any action or
proceeding in court to enforce any provision of this Lease or for damages or
other relief by reason of any alleged breach of any provision of this Lease, the
prevailing party shall be entitled to receive from the losing party, in addition
to allowable court costs, such amount as the court may adjudge to be reasonable
as attorneys' fees for the services rendered the prevailing party in such action
or proceeding, and such amount may be made a part of the judgment against the
losing party.
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25. FORCE MAJEURE. Whenever a day is specified on which, or a period of
time is appointed within which, either party is required to do or complete any
act, matter or thing, the time for the doing or completion of such act, matter
or thing shall be extended by a period of time equal to the number of days on or
during which such party is prevented from, or is unreasonably interfered with,
the doing or completion of such act, matter or thing because of strikes,
lockouts, embargoes, unavailability of labor or materials, wars, insurrections,
rebellions, civil disorder, declaration of national emergencies, acts of God, or
other causes beyond such party's reasonable control (financial ability
excepted); provided, however, nothing contained in this paragraph shall excuse
Tenant from the prompt payment of any rental or other charge required of Tenant
except as may be expressly provided elsewhere in this Lease.
26. PARTIAL INVALIDITY. If any term, provision, covenant or condition
of this Lease should be held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of this Lease shall continue in full force
and effect and shall in no way be affected, impaired or invalidated thereby.
27. TIME OF THE ESSENCE. Time is of the essence of this Lease and all
of the terms, provisions, covenants and conditions hereof.
28. HOLDING OVER. In the event Tenant shall hold over or remain in
possession of the Premises with the consent of Landlord after the expiration of
the stated term of this Lease or any written extension or renewal of the term of
this Lease, such holding over or continued possession shall create a tenancy
from month to month only, upon the same terms and conditions as are herein set
forth so far as the same are applicable, except for term and monthly rent. Any
holding over of the Premises with the consent of the Landlord shall obligate
Tenant to pay monthly rent as follows: for the first two (2) months of any
holding over, an amount equal to the last monthly rent due under this Lease;
thereafter, an amount equal to one hundred twenty-five percent (125%) of the
last monthly rent due under this Lease.
29. SUCCESSORS AND ASSIGNS. The terms, provisions, covenants and
conditions contained in this Lease shall apply to, bind and inure to the benefit
of the heirs, executors, administrators, legal representatives, successors and
assigns (where assignment is permitted) of Landlord and Tenant, respectively.
30. SUBORDINATION. Tenant agrees that this Lease shall, at the request
of the Landlord, be subordinate to any mortgage or deed of trust that may
hereafter be placed upon the Premises, and/or Landlord's leasehold interest, and
to any and all advances to be made thereunder, and to the interest thereon, and
all renewals, replacements and extensions thereof. Tenant will at the request of
Landlord execute and deliver any and all subordination agreements, in recordable
form.
31. ESTOPPEL CERTIFICATE. Tenant agrees that at any time and from time
to time during the term of this Lease, and within ten (10) days after demand by
Landlord, to execute and deliver to Landlord or to any proposed mortgagee,
trustee, beneficiary or purchaser, a certificate, in recordable form, certifying
that this Lease is in full force and effect, that the Lease is unmodified, or,
if modified, state any such modifications, and that there are no defenses or
offsets to this lease, or stating such defenses or offsets as are claimed by
Tenant, and the dates to which all rentals have been paid.
32. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of Landlord and Tenant and supersedes all oral and written agreements and
understandings made and entered into by the parties hereto prior to the date
hereof. Except as otherwise provided, no subsequent alteration, amendment,
change or addition to this Lease shall be binding upon Landlord or Tenant unless
reduced to writing and signed by each of them.
33. OPTIONS TO RENEW. Tenant shall have two (2) options to extend the
Lease for the subject premises. The first option to renew shall be for a period
of ten (10) years commencing February 1, 2015 and ending January 31, 2025
("option period one"). The second option to renew shall be for a period of five
(5) years commencing February 1, 2025 and ending January 31, 2030 ("option
period two"). Tenant may exercise the options if it does so in writing, by
certified mail, return receipt requested, not more than 180 days and not less
than ninety (90) days before the expiration of the term, provided that Tenant is
not then or thereafter in default or breach of any provision of this Lease.
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34. OPTION PERIOD RENT.
34.1 For and during the first five (5) years of option period
one, Tenant shall pay Landlord a minimum rent for the premises in the total
amount of $1,800,000 in lawful money of the United States, which Tenant agrees
to pay to Landlord without deduction, offset, notice or demand, at such place(s)
as Landlord may designate from time to time in installments of $30,000 per month
payable in advance by the first day of each and every month commencing February
1, 2015.
34.2 For and during the second five (5) years of option period
one, the minimum monthly rent set forth in section 34.1 above shall be adjusted
each year on the anniversary date of the commencement of this lease beginning
with the sixteenth year. The amount of such adjustment shall be as set forth in
section 6, Consumer Price Index Rent Adjustments, of this Lease.
34.3 For and during the five (5) years of option period two,
Tenant shall pay to Landlord a minimum rent for the premises in the total amount
of $2,100,000 in lawful money of the United States, which Tenant agrees to pay
to Landlord without deduction, offset, notice or demand, at such places(s) as
Landlord may designate from time to time in installments of $35,000 per month
payable in advance by the first day each and every month commencing February 1,
2025.
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IN WITNESS WHEREOF, the parties, on the day and year first above
written, have duly executed this Lease.
"LANDLORD" "TENANT"
ARI BEN CORPORATION ALLERGY RESEARCH GROUP, INC.
By /s/ Xxxxx Xxxxxx By /s/ Xxxx Xxxxxxx
------------------------------ -----------------------------------
XXXXX XXXXXX, CEO XXXX XXXXXXX, President
By /s/ Xxxxxxx Xxxxxx By /s/ Xxxxx Xxxxxx
------------------------------ -----------------------------------
XXXXXXX XXXXXX, CFO XXXXX XXXXXX, Secretary
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