EX-10.5 8 swexh10-5.htm ** Portions of this agreement have been omitted and filed separately with the SEC pursuant to a confidential treatment request CONFIDENTIAL EXECUTION VERSION LEASE AGREEMENT (Alfalfa Facilities Only- Connell, Washington)
EXHIBIT 10.5
** Portions of this agreement have been omitted and filed separately with the SEC pursuant to a confidential treatment request
CONFIDENTIAL EXECUTION VERSION
LEASE AGREEMENT (Alfalfa Facilities Only-Connell, Washington)
This Lease Agreement ("Agreement") dated the 31st day of December, 2014, is made by and between Pioneer Hi-Bred International, Inc., an Iowa corporation, with its principal place of business located at 0000 XX 00xx Xxxxxx, Xxxxxxxx, Xxxx Xxxxxx, Xxxx 00000 ("Landlord") and S & W Seed Company, a Nevada corporation, whose address for purposes of this Agreement is 00000 Xxxxx Xxxxx Xxxxxx, Xxxx Xxxxxx, XX 00000 ("Tenant").
1.Leased Premises. Landlord, in consideration of the rents to be paid and covenants to be performed by Tenant hereunder, hereby leases to Tenant for the term and subject to the covenants and conditions hereinafter set forth the following described Premises (herein "the Premises"), which is a portion of the Franklin County, Washington real property legal described on attached Exhibit "F" (i.e., a portion of Franklin County Assessor Parcel No. 109-560-152):
A.The greenhouse, warehouse, headhouse, office, lab, part of the machine shed, outside equipment storage area for alfalfa business (but not corn business), and approximately twelve (12) motor vehicle parking spaces east of the greenhouse for Tenant's exclusive use, depicted in the attached photograph identified as Exhibit "A" and incorporated in this Agreement by reference, the approximately twenty-eight (28) acres of land to be used strictly for agricultural research purposes only including plot tours (the "Ag Land") depicted in the attached photograph identified as Exhibit "B" and incorporated in this Agreement by reference and use of the Common Areas depicted in the attached photograph identified as Exhibit "C" and incorporated in this Agreement by reference (collectively the "Premises").
B.The Premises are delivered to Tenant on an "AS IS, WHERE IS, AND AS SHOWN" basis with no warranties of condition, including environmental condition, or suitability of the Premises for Tenant's intended alfalfa business.
B.Termination. This Agreement may be terminated in the event of one or more of the following events:
- By mutual agreement evidenced in writing by both parties;
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- Upon 60 days written notice by Tenant without cause;
- Upon Default as set forth below in Paragraph 9;
- Upon a casualty as set forth below in Paragraph 17(c); or
- Upon a substantial violation of Landlord's Rules and Regulations set forth in the attached Exhibit "D."
Premises shall be used for the storage of commercial, non-hazardous goods and agricultural research purposes, including plot tours, only and no other uses. Tenant agrees to keep the Premises free of all combustibles and hazardous products and substances, and Tenant shall comply with all municipal, state and federal environmental laws.
Except as expressly provided otherwise in this Agreement, all costs of occupancy of the Premises shall be borne solely by Tenant, including but not limited to utility costs, supplies, window washing, pest services, and replacement of lights and bulbs including the greenhouse. Landlord shall provide basic janitorial services to include weekly cleaning of the bathrooms and vacuuming/mopping of the floors. All other cleaning arrangements and costs shall be the responsibility of Tenant.
** Portions of this agreement have been omitted and filed separately with the SEC pursuant to a confidential treatment request
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In the event of an emergency, Tenant shall have the right to perform any obligation of Landlord under this Agreement and recover from Landlord any reasonable amounts so expended by Tenant within thirty (30) days of the date of demand or, in the alternative, to offset amounts so expended against Rent.
Landlord shall, at its sole expense, make structural repairs and replacements to the footings, foundation and structural elements of walls and roofs of the Premises and also shall be responsible for maintenance, repairs and replacements, at its sole expense, of heating, ventilating, air conditioning systems, plumbing systems, and electrical systems, provided, however, that Tenant, at its sole expense, shall be responsible for maintenance, repairs and replacements regarding the irrigation system on the Premises as well as Tenant's occupancy costs as described above in Section 4 of this Agreement and shall also be responsible for maintenance, repairs or replacements necessitated by Tenant's actions. Contact information for the Landlord in case of any maintenance, repair or replacement issues is as follows:
[**]1
Additions, improvements and alterations made by Tenant, whether temporary or permanent in nature, shall be subject to the prior approval of Landlord and upon completion shall belong to Tenant, provided that removal may be made without damage to the Premises at the expiration of the Agreement term. If removal of the improvements or alterations would cause damage to the Premises, said improvements and alterations shall automatically become the property of Landlord. Tenant, at its sole expense, shall be responsible for maintenance, repairs and replacements of any additions, improvements or alterations made by Tenant on, in or to the Premises. Tenant shall keep the Premises in good order, repair and condition at all times during the Agreement term, except for ordinary wear and tear.
_________________________ 1 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
** Portions of this agreement have been omitted and filed separately with the SEC pursuant to a confidential treatment request
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** Portions of this agreement have been omitted and filed separately with the SEC pursuant to a confidential treatment request
CONFIDENTIAL EXECUTION VERSION
employees or invitees and from and against any and all costs, reasonable attorney's fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon. If, however, Landlord, its agents, contractors, employees or invitees are found to be negligent in any manner, Tenant's indemnification will extend only to the degree of negligence of Tenant and shall not cover any of Landlord's negligence, for which Landlord shall be responsible and Landlord agrees to so indemnify and hold harmless Tenant from such liability, all as provided for herein.
13. Taxes; Tenant Utilities; and Shared Utilities.
** Portions of this agreement have been omitted and filed separately with the SEC pursuant to a confidential treatment request
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Agreement regarding the Premises occupied by Tenant are prorated between Landlord and Tenant based on the areas occupied by each and are already included and accounted for in the Rent payable by Tenant under Section 3 above.
15. Nondisclosure Agreement. In view of the fact that Landlord and Tenant will be in close proximity to each other's facilities and in view of the use by Landlord and Tenant of Common Areas and that they may possibly be exposed to each other's confidential information or trade secrets, Landlord and Tenant shall execute a Mutual Confidential Information and Nondisclosure Agreement ("NDA") at the time this Lease Agreement is executed in substantially the same form as set forth in the attached Exhibit "E."
** Portions of this agreement have been omitted and filed separately with the SEC pursuant to a confidential treatment request
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16.Compliance with Laws and Landlord's Rules and Policies. Each party covenants throughout the term of this Agreement, at its own sole cost and expense, to promptly comply with all laws, rules and regulations of all federal, state and local governments which may be applicable to the Premises or the use or manner of use of the Premises. Furthermore, Tenant shall comply with Landlord's Rules and Policies as set forth in the attached Exhibit "D."
- Commercial general liability insurance or self-insurance in an amount not less than [**]2 combined single limit (CSL) each occurrence, with an annual aggregate of [**]3 for Products/Completed Operations, and an annual aggregate of [**]4 for all other losses, and excess liability insurance of [**]5 combined single limit (CSL) each occurrence and aggregate.
- Worker's Compensation insurance to meet statutory requirements and Employers Liability in an amount not less than [**]6 each accident, [**]7 Disease - Policy Limit and [**]8/SUP> Disease - Each Employee.
_________________________ 2 Omitted and filed separately with the SEC pursuant to a confidential treatment request. 3 Omitted and filed separately with the SEC pursuant to a confidential treatment request. 4 Omitted and filed separately with the SEC pursuant to a confidential treatment request. 5 Omitted and filed separately with the SEC pursuant to a confidential treatment request. 6 Omitted and filed separately with the SEC pursuant to a confidential treatment request. 7 Omitted and filed separately with the SEC pursuant to a confidential treatment request. 8 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
** Portions of this agreement have been omitted and filed separately with the SEC pursuant to a confidential treatment request
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Agreement to reflect the damage or destruction and loss of use of the Premises by Tenant. Moreover, Tenant agrees neither Landlord nor any of Landlord's directors, officers, employees, or other agents will be liable for any injury, loss, or damage to any personal property kept on the Premises by Tenant (whether owned by Tenant or any third party) that is caused by fire, water, the elements, burglary, theft, or any other cause. Landlord recommends Tenant obtain appropriate insurance to cover said personal property any such injury, loss, or damage.
Tenant: |
S & W Seed Company ATTN: Chief Financial Officer 0000 X. Xxxxxxx Xxxx., Xxxxx 000 Xxxxxx, XX 00000 Fax: (000) 000-0000 |
Landlord: |
Pioneer Hi-Bred International, Inc. ATTN: [**]9 |
All such notices shall be effective upon delivery, attempted delivery, or refusal, whichever occurs first, at the address or addresses of the intended recipient, as set forth above.
20.Enter onto Premises. Upon oral or written notice to Tenant delivered no less than twenty-four hours in advance (but without notice in emergencies), Landlord and its authorized representatives may enter the Premises at all reasonable times and, if required by Tenant, shall be accompanied by Tenant's employee.
_________________________ 9 Omitted and filed separately with the SEC pursuant to a confidential treatment request.
** Portions of this agreement have been omitted and filed separately with the SEC pursuant to a confidential treatment request
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22.Landlord's Waiver; Mechanic's Liens Prohibited. With exception to the Landlord lien for rent arising under RCW 60.72.010, Landlord shall and hereby does expressly waive and release any and all contractual liens and security interests or constitutional and/or statutory liens and security interests arising by operation of law to which Landlord might now or hereafter be entitled on all Tenant's property which is now or hereafter placed in or upon the Premises, except for judgment liens that may arise in favor of Landlord. Tenant shall not allow any mechanic's lien or other similar lien or claim to be asserted or filed against Landlord or the Premises and all contractors, subcontractors, suppliers or other persons who furnish material or labor, or who perform labor, upon the Premises are prohibited from filing or asserting any such lien or claim against Landlord and the Premises.
24.Child and Forced Labor Prohibition. Landlord (sometimes referred to herein as "Pioneer") will not tolerate the use of child or forced labor, slavery or human trafficking in any of its global operations and facilities. Pioneer will not tolerate the exploitation of children, their engagement in unacceptably hazardous work, or the trafficking, physical punishment, abuse, or involuntary servitude of any worker. Pioneer expects its Tenant, and the suppliers and contractors with whom Tenant does business, to uphold the same standards.
Tenant certifies that it is fully aware of the DuPont Principles on Child and Forced Labor and Human Trafficking ("DuPont Principles") available under Respect for People at xxxx://xxx.xxxxxxx.xxx/xxxx/xxxx/xxxxx/xxxxxxxx/xxxxxxxxxx/. Tenant certifies that it does not and will not employ, directly or indirectly or through a subcontractor, any person to perform services, provide product, or manufacture or supply material for Pioneer who is under sixteen (16) years of age, or eighteen (18) years of age in the case of hazardous services (hereinafter "Child Labor"), in a manner contravening the DuPont Principles or in violation of any relevant laws or regulations.
Tenant certifies that the workers it uses, and will use, to produce product, provide services, or manufacture or supply material are present voluntarily. Tenant certifies that it and its suppliers of goods and services do not and will not knowingly use prison, slave, human trafficked or forced labor in contravention of the DuPont Principles or relevant laws and regulations.
Tenant understands that these certifications and undertakings are essential to the Agreement. Tenant agrees to indemnify Pioneer and its parent company, DuPont, and hold Pioneer and its parent company, DuPont, harmless with respect to any violation of
** Portions of this agreement have been omitted and filed separately with the SEC pursuant to a confidential treatment request
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relevant laws and regulations, or for any liability arising from the contravention of the DuPont Principles, or non-compliance with this Section by Tenant, its suppliers and contractors. Tenant also agrees that, in the event that Pioneer determines that a violation of this Section has occurred, Pioneer shall notify Tenant and Tenant shall immediately remedy the violation. In the event that Pioneer determines that Tenant has not remedied the violation, then Pioneer may terminate the Agreement immediately, and such termination shall be with cause.
25.Criminal Background Checks and Escort Policy.
A.The Tenant shall perform criminal background checks on all employees prior to working on a Pioneer site. The Tenant criminal background check program must comply with the Fair Credit Reporting Act as well as all applicable Federal and State laws. These criminal background checks shall determine if the employee has been convicted of a felony or misdemeanor crime within the past seven (7) years or has any known criminal convictions prior to the past seven (7) years. If the Tenant finds that an employee has been convicted, the Tenant shall not allow that employee to work on the Pioneer site unless approved, in writing, by Landlord.
X.Xx the event of an emergency, an employee of the Tenant may temporarily work on a Pioneer site only if the criminal background check is ongoing and the Tenant employee is escorted by a Pioneer employee One Hundred (100) percent of the time. If a security pass is not warranted, the employees of the Tenant shall be required to comply with all Landlord escort policies.
A.Governing Law. This Agreement shall be governed by the laws of the State of Iowa and the parties hereto agree that venue shall be proper in any state or federal court located within the State of Iowa.
** Portions of this agreement have been omitted and filed separately with the SEC pursuant to a confidential treatment request
CONFIDENTIAL EXECUTION VERSION
** Portions of this agreement have been omitted and filed separately with the SEC pursuant to a confidential treatment request
CONFIDENTIAL EXECUTION VERSION
S & W SEED COMPANY TENANT |
PIONEER HI-BRED INTERNATIONAL, INC. LANDLORD
|
By: _______________________________ Print Name: ________________________ Print Title: _________________________ |
By: _______________________________ Print Name: ________________________ Print Title: _________________________ |
Date Signed: _______________________ |
Date Signed: _______________________ |
By: _______________________________ Print Name: ________________________ Print Title: _________________________ |
By: _______________________________ Print Name: ________________________ Print Title: _________________________ |
Date Signed: _______________________ |
Date Signed: _______________________ |
[Signature Page to Ground Lease]
STATE OF __________________________
) ss.
COUNTY OF _________________________
I certify that I know or have satisfactory evidence that ____________________ is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it as the ______________________ of S&W SEED COMPANY, a Nevada corporation, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED: ___________________________, 2014.
____________________________________
[PRINT NAME] ________________
NOTARY PUBLIC for the State of ________, residing at ______________.
My appointment expires: ___________________.
STATE OF __________________________
) ss.
COUNTY OF _________________________
I certify that I know or have satisfactory evidence that ____________________ is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it as the ______________________ of PIONEER HI-BRED INTERNATIONAL, INC., an Iowa corporation, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED: ___________________________, 2014.
____________________________________
[PRINT NAME]
NOTARY PUBLIC for the State of ________, residing at ______________.
My appointment expires: ___________________.
[Signature Page to Ground Lease]