Exhibit 6.31
LEASE AGREEMENT
In consideration of the rents and covenants hereinafter set forth, ROEBBELEN
LAND COMPANY, a California limited partnership, (hereinafter referred to as
Landlord), hereby leases to FOOD EXTRUSION, INC., a Nevada corporation,
(hereinafter referred to as Tenant), and Tenant hereby rents from Landlord,
Suites D, E, and F, 0000 Xxxxx Xxxxxx Xxxxx, Xx Xxxxxx Xxxxx, Xxxxxxxxxx, 00000,
(hereinafter referred to as Premises) consisting of approximately 1,120 square
feet of office space and 8,960 square feet of warehouse space, upon the
following terms and conditions;
1. Term: The term shall commence on October 1, 1996, and expire on September
30, 2006. The Tenant shall have the unilateral right to terminate the Lease
at the end of the fifth lease year on September 30, 2001, by giving the
Landlord six months prior written notice of its intention to terminate the
Lease.
2. Rent: The rent payments are scheduled on the "Rent Rider" attached to this
Lease and are summarized as follows:
October 1, 1996 through September 30, 1998$47,712.00 per year
October 1, 1998 through September 30, 2000$48,904.80 per year
October 1, 2000 through September 30, 2002$50,127.42 per year
October 1, 2002 through September 30, 2004$51,380.61 per year
October 1, 2004 through September 30, 2006$52,665.12 per year
The rent shall be paid in advance in annual installments on October 1st of
each lease year in the amounts stipulated above and on the Rent Rider. The
first annual installment of rent in the amount of $47,712.00 shall be due
on October 1, 1996, for the period from October 1, 1996, through September
30, 1997. All rents shall be paid to Landlord or its authorized agent at
0000 Xxxxx Xxxxxx Xxxxx, Xx Xxxxxx Xxxxx, Xxxxxxxxxx 00000, or at such
other places as may be designated by Landlord from time to time. In the
event rent is not paid within fifteen (15) days after the due date, the
Tenant agrees to pay a late charge of $250.00 plus interest at 11/2% per
month on the delinquent amount. The late charge is not a grace period, and
the Landlord is entitled to make written demand for any rent if not paid
when due. Any unpaid balances remaining after termination of occupancy are
subject to 11/2% interest per month or the maximum rate allowed by law.
3. Security Deposit: The Tenant shall not be required to pay a security
deposit to the Landlord.
4. Use: The Premises are to be used for general office, food processing,
laboratory testing of food products, warehouse, shipping and receiving. The
Tenant shall at all times have ingress and egress rights through the gated
yard at the rear of the Premises for shipping and receiving.
5. Uses Prohibited: Tenant shall not use any portion of the Premises for
purposes other than those specified hereinabove, and no use shall be made
or permitted to be made upon the Premises, nor acts done, which will
increase the existing rate of insurance upon the property, or cause
cancellation of insurance policies covering said property.
6. Assignment and Subletting: Tenant shall not assign this lease or sublet any
portion of the Premises without prior written consent of the Landlord,
which shall not be unreasonably withheld. Any such assignment or subletting
without consent shall be void and, at the option of the Landlord, may
terminate this Lease.
7. Ordinances and statutes: Tenant shall comply with all statutes, ordinances
and requirements of all municipal, state and federal authorities now in
force, or which may hereafter be in force, pertaining to the Premises,
occasioned by or affecting the use thereof by Tenant. The commencement or
pendency of any state or federal court abatement proceeding affecting the
use of the premises shall, at the option of the Landlord, be deemed a
breach hereof
8. Maintenance, Repairs, Alterations: Tenant acknowledges that the Premises
are in good order and repair. Tenant shall, at its own expense and at all
times, maintain the Premises in good and safe condition, including: a)
plumbing maintenance and repairs of restroom facilities, hot water heaters,
water fountains, sinks and drains, b) replacement of all light bulbs and
tubes, c) periodic carpet cleaning and interior painting. Tenant shall, at
its own expense, provide for janitorial services within the Premises.
Tenant shall surrender the Premises at termination hereof, in as good
condition as received, normal wear and tear excepted.
Landlord shall maintain and repair at its cost heating, ventilating, and
air conditioning systems, (i.e. HVAC systems), the roof, exterior walls,
and structural foundations. Landlord shall maintain in good and clean
condition sidewalks, driveways, the parking lot, lawns, shrubbery, the
exterior of the plate glass windows and building exterior walls.
No improvement or alteration of the Premises shall be made without the
prior written consent of the Landlord. Prior to the commencement of any
substantial repair, improvement, or alteration, Tenant shall give Landlord
at least two (2) days written notice in order that Landlord may post
appropriate notices to avoid any liability for liens.
Tenant shall not commit any waste upon the Premises, or any nuisance or act
which may disturb the quiet enjoyment of any tenant in the building.
9. Mechanics' Liens: The Tenant agrees that it will pay or cause to be paid
all costs for work done by it or caused to be done by it on the Premises,
and the Tenant will keep the premises free and clear of all mechanics'
liens and other liens on account of work done for the Tenant or persons
claiming under it. The Tenant agrees to and shall indemnify, defend and
save the Landlord free and harmless against any and all liability, loss,
damage, costs, attorneys' fees and all other expenses on account of claims
of lien of laborers or materialmen or others for work performed or
materials or supplies furnished for the Tenant or persons claiming under
it.
10. Entry and Inspection: Tenant shall permit Landlord or Landlord's agent to
enter upon the Premises at reasonable times and upon reasonable notice, for
the purpose of inspecting the same, and will permit Landlord at any time
within sixty (60) days prior to the expiration of this Lease, to place upon
the Premises any usual "For Lease" signs, and permit persons desiring to
lease the same to inspect the Premises thereafter.
11. Indemnification of Landlord: Landlord shall not be liable for any damage or
injury to Tenant, or any other person, or to any property, occurring on the
demised Premises or any part thereof, and Tenant agrees to hold Landlord
harmless from any claims for damages, no matter how caused.
12. Possession: If Landlord is unable to deliver possession of the premises at
the commencement hereof, Landlord shall not be liable for any damage caused
thereby, nor shall this Lease be void or voidable, but Tenant shall not be
liable for any rent until possession is delivered. Tenant may terminate
this Lease if possession is not delivered within ninety (90) days of the
commencement of the term hereof.
13. Tenant's Insurance: Tenant, at its expense, shall maintain plate glass and
public liability insurance including bodily injury and property damage
insuring Tenant and Landlord with minimum coverage of $500,000. Tenant
shall provide Landlord with a Certificate of Insurance showing Landlord as
additional insured. The policy shall require ten (10) day's written notice
to Landlord prior to cancellation or material change of coverage.
14. Landlord's Insurance: Landlord shall maintain hazard insurance covering one
hundred percent replacement cost of the improvements throughout the Lease
term. Landlord's insurance will not insure Tenant's personal property.
15. Subrogation: To the maximum extent permitted by insurance policies which
may be owned by Landlord or Tenant, Landlord and Tenant for the benefit of
each other, waive any and all rights of subrogation which might otherwise
exist.
16. Utilities: Tenant shall be responsible for the payment of telephone,
natural gas and electric utilities. Landlord shall be responsible for the
payment of sanitary sewer and water utilities.
17. Signs: Tenant shall not construct any signs without the prior written
consent of Landlord, which consent shall not be unreasonably withheld. Any
and all signs constructed by Tenant must be in accordance with the
Covenants, Conditions and Restrictions prescribed by the Owners Association
of the El Dorado Hills Business Park where the Premises are located.
18. Abandonment of Premises: Tenant shall not vacate or abandon the Premises at
any time during the term hereof, and if Tenant shall abandon or vacate the
Premises, or be dispossessed by process of law, or otherwise, any personal
property belonging to Tenant left upon the Premises shall be deemed to be
abandoned, at the option of Landlord.
19. Condemnation: If any part of the Premises shall be taken or condemned for
public use, and a part thereof remains which is susceptible of occupation
hereunder, the Lease shall, as to the part taken, terminate as of the date
the condemnor acquires possession, and thereafter Tenant shall be required
to pay such proportion of the rent for the remaining term as the value of
the Premises remaining bears to the total value of the Premises at the date
of condemnation; provided however, that Landlord may at its option
terminate this Lease as of the date the condemnor acquires possession. In
the event that the demised premises are condemned in whole, or that such
portion is condemned that the remainder is not susceptible for use
hereunder, this Lease shall terminate upon the date upon which the
condemnor acquires possession. All sums which may be payable on account of
any condemnation shall belong to the Landlord, and Tenant shall not be
entitled to any part thereof, provided however, that Tenant shall be
entitled to retain any amount awarded to him for its trade fixtures or
moving expenses.
20. Trade Fixtures: Any and all improvements made to the Premises during the
term hereof shall belong to the Landlord, except trade fixtures of the
Tenant. Tenant may, upon termination hereof, remove all its trade fixtures,
but shall repair or pay for all repairs necessary for damages to the
Premises occasioned by removal.
21. Destruction of Premises: In the event of a partial destruction of the
premises during the term hereof, from any cause, Landlord shall forthwith
repair the same, provided that such repairs can be made within sixty (60)
days under existing governmental laws and regulations, but such partial
destruction shall not terminate this Lease, except that Tenant shall be
entitled to proportionate reduction of rent while such repairs are being
made, based upon the extent to which the making of such repairs shall
interfere with the business of Tenant on the Premises. If such repairs
cannot be made within said sixty (60) days, Landlord, at its option, may
make the same within a reasonable time, this Lease continuing in effect
with the rent proportionately abated as aforesaid, and in the event that
Landlord shall not elect to make such repairs which cannot be made within
(60) days, this Lease may be terminated at the option of either party.
In the event the building in which the demised Premises may be situated is
destroyed to an extent of not less than one-third of the replacement costs
thereof, Landlord may elect to terminate this Lease whether the demised
Premises be insured or not.
22. Hazardous Materials: Tenant shall not use, store or dispose of any
hazardous substances upon the Premises, except use and storage of such
substances if they are customarily used in Tenant's business, and such use
and storage complies with all environmental laws. Hazardous substances
means any hazardous waste, substance or toxic materials regulated under any
environmental laws or regulations applicable to the property.
23. Insolvency: In the event a receiver is appointed to take over the business
of Tenant, or in the event Tenant makes a general assignment for the
benefit of creditors, or Tenant takes or suffers any action under any
insolvency or bankruptcy act, the same shall constitute breach of this
Lease by Tenant.
24. Defaults by Tenant: In the event of any breach of this Lease by Tenant,
Landlord may, at its option, terminate the Lease and recover from Tenant:
(a) the worth at the time of the award of the unpaid rent which was earned
at the time of the termination; (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 the award exceeds the amount of such rental
loss that the Tenant proves could have been reasonably avoided; c. the
worth at the time of award of the amount by which the unpaid rent 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; and (d) any
other amount necessary to compensate Landlord for all detriment proximately
caused by Tenant's failure to perform its obligations under the Lease or
which in the ordinary course of things would be likely to result therefrom.
Landlord may, in the alternative, continue this Lease in effect, as long as
Landlord does not terminate Tenant's right to possession, and Landlord may
enforce all its rights and remedies under the Lease, including the right to
recover the rent as it becomes due under the Lease. if said breach of Lease
continues, Landlord may, at any time thereafter, elect to terminate the
Lease.
Nothing contained herein shall be deemed to limit any other rights or
remedies which Landlord may have.
25. Defaults by Landlord: In the event Landlord shall neglect or fail to
perform or observe any of the covenants, provisions, or conditions
contained in this Lease within thirty (30)days after written notice of
default (or if more than thirty (30) days shall be required because of the
nature of default, if Landlord shall fail to proceed diligently to cure
such default after written notice thereof) then in that event Landlord
shall be responsible to Tenant for any and all damages sustained by Tenant
as result of Landlord's breach.
If the Premises or any part thereof are at any time subject to a mortgage
or a deed of trust and this Lease or the rentals due from Tenant hereunder
are assigned to such mortgagee, trustee or beneficiary (Assignee) and
Tenant is given written notice thereof, including the post office address
to such Assignee, then Tenant shall give written notice to such Assignee,
specifying the default in reasonable detail, and affording such Assignee a
reasonable opportunity to make performance for and on behalf of Landlord.
If and when the same Assignee has made performance on behalf of the
Landlord, such default shall be deemed cured.
If, after such notice to Landlord and Assignee if any, Landlord and
Assignee shall fail to cure such default as provided herein, Tenant shall
have the right to cure any such default and offset the cost to cure the
default, including all costs and attorney's fees incurred to cure such
default or breach of Lease, against any rental due under this Lease.
26. Attorney's Fee and Costs: In any action or proceeding involving a dispute
between Landlord and Tenant arising out of the execution of this Lease, or
to enforce other terms and conditions of this Lease, or to recover
possession of the Premises from Tenant, the prevailing party shall be
entitled to receive from the other party a reasonable attorney's fee,
expert fees, appraisal fees and all other costs incurred in connection with
such action or proceedings, to be determined by the court.
27. Waiver: No failure of Landlord to enforce any term hereof shall be deemed
to be a waiver.
28. Notices: Any notice which either party may or is required to file, shall be
given by mailing the same, postage prepaid, t6 Tenant or Landlord, at the
address shown below, or at such other places as may be designated by the
parties from time to time.
Landlord: Roebbelen Land Company
0000 Xxxxx Xxxxxx Xxxxx,
Xxxxx 000
Xx Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Tenant: Food Extrusion, Inc.
0000 Xxxxx Xxxxxx Xxxxx,
Xxxxx 000
Xx Xxxxxx Xxxxx, Xxxxxxxxxx 00000
29. Holding Over: Any holding over after the expiration of the Lease, with the
consent of Landlord, shall be construed as a month4o-month tenancy at a
rental of $4,700.00 per month, otherwise in accordance with the terms
hereof, as applicable.
30. Time: Time is of the essence in this Lease.
31. Heirs, Assigns, Successors: This Lease is binding upon and inures to the
benefit of the heirs, assigns and successors in interest to the parties.
32. Landlord's Liability: The term "Landlord", as used in this paragraph, shall
mean only the owner of the real property. In the event of any transfer of
such title or interest, the Landlord named herein (or the grantor in case
of any subsequent transfers) shall be relieved of all liability related to
Landlord's obligations to be performed after such transfer. Provided,
however, that any funds in the hands of Landlord or Grantor at the time of
such transfer shall be delivered to Grantee. Landlord's obligations
hereunder shall be binding upon Landlord's successors and assigns only
during their respective periods of ownership.
33. Estoppel Certificate:
(a) Tenant shall at any time upon not less than ten (10) days prior written
notice from Landlord execute, acknowledge and deliver to Landlord a
statement in writing (1) certifying that this Lease is unmodified and in
full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full
force and effect), the amount of any security deposit, and the date to
which the rent and other charges are paid in advance, if any, and (2)
acknowledging edging that there are not, to Tenant's knowledge, any uncured
defaults on the part of Landlord hereunder or specifying such defaults if
any are claimed. Any such statement may be conclusively relied upon by any
prospective buyer or encumbrancer to the premises.
(b) At Landlord's option, Tenant's failure to deliver such statement within
such time shall be a material breach of this Lease or shall be conclusive
upon Tenant (1) that this Lease is in lull force and effect, without
modification except as may be represented by Landlord, (2) that there are
no uncured defaults in Landlord's performance, and (3) that not more than
one year's rent has been paid in advance or such failure may be considered
by Landlord as a default by Tenant under its Lease.
(c) If Landlord desires to finance, refinance, or sell the Premises, or any
part thereof, Tenant hereby agrees to deliver to any lender or buyer
designated by Landlord such financial statements of Tenant as may be
reasonably required by such lender or buyer. Such statement shall include
the past three years' financial statement of Tenant. All such financial
statements shall be received by Landlord and such lender or buyer in
confidence and shall be used only for the purposes herein set forth.
34. Tenant Improvements:
Landlord's Work and Obligations: The Landlord shall, at Landlord's expense:
a. In the warehouse portion of the Premises: Demolish all existing
improvements except the demising wall between Suites D and E; Plaster
and resurface any damaged walls; Paint all walls which will be exposed
after Tenant's work is completed; Repair any damaged ceiling
insulation; Remove existing carpet; Repair the spring system in the
overhead door in Suite E, and Sweep clean the floor.
b. In the office portion of Suite D: Repaint all interior walls; Replace
all damaged and stained ceiling tiles; Clean the restroom and storage
room, and Pay a carpet replacement allowance to the Tenant in an amount
equal to the lesser of actual invoice cost or $1,500.
c. Pay the Tenant's actual cost for architectural design of the tenant
improvements, but not to exceed a total cost of $10,000, per the
contract with Dow & Associates, attached to this Lease as Exhibit A.
d. Repair an asphalt section of approximately 5 feet by 5 feet located in
the gated yard immediately outside of the overhead door to Suite D as
shown on Exhibit B.
e. Remove an asphalt section of approximately five feet by fifteen feet at
the top of the depressed truck dock and replace with reinforced
concrete as shown on Exhibit B.
f. Extend the entry sidewalk to equal the width of the double doors
located at the common column between and at the front entrance to
Suites E and F as shown on Exhibit B.
g. Construct a stairway between parking lots as shown on Exhibit B.
Tenant's Work and Obligations: The Tenant shall, at Tenant's expense.
a. Complete the tenant improvements per Exhibit C, including the cost of
any new HVAC units and systems, additional electrical capacity and
telephone trunk lines. Tenant shall contract for the improvements and
pay all costs of the improvements including permits and fees.
ENTIRE AGREEMENT: The foregoing constitutes the entire agreement between the
parties and may be modified only by a writing signed by both parties. The
following Exhibits have been made a part of this Lease before the parties'
execution hereof
Rent Rider;
Exhibit A - Architect's Contract;
Exhibit B - Site Plan depicting Landlord's exterior work, and Exhibit
C - Tenant's Remodel Floor Plan.
In Witness Whereof, the Landlord and Tenant have duly executed this Lease on
July 11th 1996.
LANDLORD: TENANT:
ROEBBELEN LAND COMPANY FOOD EXTRUSION, INC.
A California limited partnership A Nevada corporation
By:/s/ Xxxxx Xxxxxxx By:/s/ X.X. XxXxxx
----------------- ---------------
Xxxxx Xxxxxxx Xxxxxx XxXxxx
General Partner Chairman of the Board
EXHIBIT A
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx Xx Xx Xxxxxx Xxxxx, XX 00000 o (000) 000-0000
DOW & ASSOCIATES
Architecture Planning
May 13, 1996
Mr. Xxx Xxxxx
Roebbelen Land Company
0000 Xxxx'x Xxxxxx Xxxxx
Xx Xxxxxx Xxxxx, XX 00000
Re: Proposal
FoodEx Tenant Improvements
1261 Hawk's Flight Court, Suite E
Dow & Associates will provide working drawings for interior tenant improvements
for the subject project based on preliminary drawings presented by the Tenant
including all architectural, mechanical, plumbing, electrical and title 24
energy documentation. Drawings and documentation will be insufficient detail to
obtain a building permit from the El Dorado County
It is understood that the Tenant will hire and pay for the services of a
specialist to design and prepare working drawings for the laboratory. Dow &
Associates will incorporate this work into the permit drawings and supply all
mechanical, plumbing and electrical services as required.
Design time has been included in this proposal for special ceiling and lighting
treatment in the Secretary/Reception, Lobby and Conference areas. In the event
that additional work is required for design, Owner or Tenant requested changes,
ADA/Title 24 access compliance or other items not included in the scope of work
listed above, it will be accomplished only upon written authorization from the
Owner. Compensation to Dow & Associates will be at the rate of $75.00 per hour
or by lump sum agreed upon at the time of authorization.
COMPENSATION
Architectural
Dow & Associates $3,560
Mechanical & Plumbing
XxXxxxxxx Design $2,100
Electrical
Chase Electrical Engineering $2,900
Title 24 Energy Documentation
XxXxxxxxx Design $ 400
Plotting & printing through permit submittal $ 450
------
Total $9,410
Proposal
FoodEx Tenant Improvements
Page 2
Compensation to be paid as follows:
Payment #1: 50% due upon submittal to County for building permit.
Payment #2: 50% due upon issuance of building permit.
WORK NOT INCLUDED
Fire sprinkler design
ADA or Title 24 handicap access design or drawings for items not directly
related to these tenant improvements.
Construction specifications other than that required for building permit.
Printing for bidding or construction purposes.
Building permit fees.
Construction contract administration.
OWNERS & TENANT RESPONSIBILITIES
Provide site plan of existing parking improvements. Specifications, color
selections and material and equipment selections.
TERMINATION
Any agreement based on this proposal may be terminated by either party upon
seven days written notice. In the event of termination not the fault of the
Architect, The Architect shall be compensated for all services performed to
termination date.
Sincerely, Owner's Acceptance of Proposal
Dow & Associates
s/s Xxxxxxx X. Xxx /s/Xxx Xxxxx
------------------ ------------
Xxxxxxx X. Xxx
RENT RIDER
FOOD EXTRUSION, INC.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxxx X, X, and F
Xx Xxxxxx Xxxxx, Xxxxxxxxxx 00000
RENT
Lease Date Rent Per SF/Mo Office Per SF/Mo Warehouse Per SF/Mo Total
Year From To Escalator Total/Mo Total/Yr Total/Mo Total/Yr Total/Mo Total/Yr
---- ---- -- --------- -------- -------- -------- -------- -------- --------
1 10/01/96 09/30/97 N/A 0.75 840.00 10,080.00 0.35 3,136.00 37,632.00 0.39 3,976.00 47,712.00
2 10/01/97 09/30/98 0.00% 0.75 840.00 10,080.00 0.35 3,136.00 37,632.00 0.39 3,976.00 47,712.00
3 10/01/98 09/30/99 2.50% 0.77 861.00 10,332.00 0.36 3,214.40 38,572.80 0.40 4,075.40 48,904.80
4 10/01/99 09/30/00 0.00% 0.77 861.00 10,332.00 0.36 3,214.40 38,572.80 0.40 4,075.40 48,904.80
5 10/01/00 09/30/01 2.50% 0.79 882.53 10,590.30 0.37 3,294.76 39,537.12 0.41 4,177.29 50,127.42
6 10/01/01 09/30/02 0.00% 0.79 882.53 10,590.30 0.37 3,294.76 39,537.12 0.41 4,177.29 50,127.42
7 10/01/02 09/30/03 2.50% 0.81 904.59 10,855.06 0.38 3,377.13 40,525.55 0.42 4,281.72 51,380.61
8 10/01/03 09/30/04 0.00% 0.81 904.59 10,855.06 0.38 3,377.13 40,525.55 0.42 4,281.72 51,380.61
9 10/01/04 09/30/05 2.50% 0.83 927.20 11,126.43 0.39 3,461.56 41,538.69 0.44 4,388.76 52,665.12
10 10/01/05 09/30/06 0.00% 0.83 927.20 11,126.43 0.39 3,461.56 41,538.69 0.44 4,388.76 52,665.12
Cumulative Change, Yrs 1-10 10.38% 0.08 87.20 1,046.43 0.04 325.56 3,906.69 0.04 412.76 4,953.12
Notes: The premises as delivered to the Tenant by the Landlord consisted of
improved office space of 1,120 square feet and standard warehouse space
of 8,960 square feet.
Office Area 1,120 sf
Warehouse Area 8,960
Total 10,080 sf
