EXHIBIT 10.11
LEASE
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Lease made December 1, 1999, between L & A Development, L.L.C., a limited
liability company organized under the laws of the State of Missouri, having its
principal office at X.X. Xxx 000, 000 Xxxxx Xxxxxx Street, City of Xx. Xxxxxx,
Xxxxxx xx Xxxxxxxx, Xxxxx xx Xxxxxxxx, 00000-0000, herein referred to as
"Lessor", and Verdant Brands, Inc., formerly known as Ringer Corporation, a
corporation organized under the laws of the State of Minnesota, having its
principal place of business at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxx, 00000-0000, herein referred to as "Lessee".
RECITALS
1. Lessor is the sole owner of the premises specifically described in
Exhibit "A" attached hereto, upon which is presently a 100,000 square foot
warehouse which is leased by Lessee under the terms and conditions of a certain
lease dated July 13, 1998.
2. Lessor is constructing an 80,000 square foot addition to the warehouse
on the premises.
3. Lessee desires to lease 50,000 additional square feet of the 80,000
square foot addition to be used as additional space for warehouse and
distribution for chemical products and other goods so that the total leased
space will be 150,000 square feet.
4. The parties desire to cancel that lease entered into between them
dated July 13, 1998 referenced in Paragraph 1 hereof, and substitute, in its
stead, this lease agreement defining the rights and liabilities relating to the
150,000 square feet of space leased.
In consideration of the mutual covenants contained herein, the parties
agree as follows:
1. Subject and Purpose. Lessor leases 150,000 square feet of the
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warehouse building and land, located in the County of Xxxxxxxx, State of
Missouri, and more particularly described on Exhibit "A" attached hereto, to
Lessee for Lessee's use as follows: a warehouse and distribution center for
chemical products and other goods.
2. Term and Rent. Lessor demises the above premises for a term of five
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(5) years, commencing on the completion of construction of the 80,000 square
foot addition, which addition is expected to be complete on or about November
15, 1999, and terminating on the fifth anniversary of the commencement of the
lease at 5:00 p.m. or sooner as provided herein, at the annual rate of Three
Hundred Sixty-four Thousand Sixty-eight Dollars ($364,068), payable in equal
installments of Thirty Thousand Three Hundred Thirty-nine Dollars ($30,339.00)
in advance on the first day of each month for that month's rental, during the
term of this lease. All rental payments shall be made to Lessor at the address
specified above. Lessee shall pay the rent as specified herein and in Section
Three hereof. Lessee shall pay
Lessor a late charge of Five Percent (5%) of any monthly rental installment
received more than ten (10) days after the due date for such rental installment.
3. Additional Rent. All taxes, charges, costs, and expenses that Lessee
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assumes or agrees to pay hereunder, together with all interest and penalties
that may accrue thereon in the event of the failure of Lessee to pay those
items, and all other damages, costs, expenses, and sums that Lessor may suffer
or incur, or that may become due, by reason of any default of Lessee or failure
by Lessee to comply with the terms and conditions of this lease, shall be deemed
to be additional rent, and, in the event of nonpayment, Lessor shall have all
the rights and remedies as herein provided for failure to pay rent.
4. Alterations, Additions and Improvements.
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(a) Subject to the limitation that no substantial portion of the
building on the demised premises shall be demolished or removed by Lessee
without the prior written consent of Lessor, and, if necessary, of any
mortgagee, Lessee may at any time during the lease term, subject to the
conditions set forth below and at his own expense, make alterations, additions,
or improvements in and to the demised premises and the building. Alterations
shall be performed in a workmanlike manner and shall not weaken or impair the
structural strength, or lessen the value, of the building on the premises, or
change the purposes for which the building, or any part thereof, may be used.
(b) Conditions with respect to alterations, additions, or
improvements are as follows:
(1) Prior to commencement of any work Lessee shall pay the
amount of any increase in premiums on insurance policies provided for herein
because of endorsements to be made covering the risk during the course of work.
In addition, if the estimated cost of work shall exceed Ten Thousand Dollars
($10,000), Lessee shall, without cost to Lessor, furnish Lessor with a
performance bond written by a surety acceptable to Lessor in an amount equal to
the estimated cost of the work, guaranteeing the completion of work, free and
clear of liens, encumbrances, and security interests, according to the approved
plans and specifications.
(c) All alterations, additions, and improvements on or in the demised
premises at the commencement of the term, and that may be erected or installed
during the term, shall become part of the demised premises and the sole property
of Lessor, except that all movable trade fixtures installed by Lessee shall be
and remain the property of Lessee.
5. Repairs. Lessee shall, at all times during the lease and at its own
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cost and expense, repair, replace, and maintain in good, safe and substantial
condition, all buildings and any improvements, additions, and alterations
thereto, on the demised premises, and shall use all reasonable precaution to
prevent waste, damage or injury to the demised premises.
6. Taxes. Lessee shall pay on or before the last day on which payment
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may be made without penalty or interest, all taxes, assessments, or
other governmental charges that shall or may during the lease term be imposed
on, or arise in connection with the use of, the demised
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premises or any part thereof, prorated so as to conform to the term of this
lease. Lessee shall pay all taxes assessed in lieu of or in addition to the
foregoing under all present or future laws of all governmental authorities
whatsoever. Lessee shall have the right to apply for the conversion of any
special assessment for local improvements in order to cause the same to be
payable in installments, and on the conversion Lessee shall be obligated to pay
only those installments that may become due during the lease. Lessee shall
within thirty (30) days after the time provided for the payment of any tax or
other governmental charge by Lessee, produce and exhibit to Lessor satisfactory
evidence of the payment. It is the intention of the parties that the rent herein
is net rental, and Lessor shall receive the same free from all taxes that are
made payable by Lessee.
7. Utilities. All applications and connections for necessary utility
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services on the demised premises shall be made in the name of Lessee only, and
Lessee shall be solely liable for utility charges as they become due, including
those for sewer, water, gas, electricity, and telephone services.
8. Security Deposit. Lessee shall deposit Ten Thousand Dollars ($10,000)
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with Lessor, which amount shall be held by Lessor as security for the full and
timely performance by Lessee of the terms and conditions herein and for the
payment of any final judgment that may be rendered against Lessee for a breach
of those terms and conditions. The rights of Lessor against Lessee for a breach
of this lease shall in no way be limited or restricted by this security deposit,
but Lessor shall have the absolute right to pursue any available remedy to
protect its interest herein, as if this security deposit had not been made. The
deposit shall accrue interest at Five Percent (5%) per annum and shall be
returned to Lessee at the expiration of this lease provided that all the terms
and conditions herein contained have been fully performed by Lessee. Should the
demised premises be sold, Lessor may transfer or deliver this security deposit
to the purchase of the interest, and Lessor shall then be discharged from any
further liability with respect to the security deposit.
9. Insurance.
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(a) During the term of the lease and for any further time that Lessee
shall hold the demised premises, Lessee shall obtain and maintain at his expense
the following types and amounts of insurance:
(1) Fire Insurance. Lessee shall keep all buildings,
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improvements, and equipment on the demised premises, including all alterations,
additions, and improvements, insured against loss or damage by fire, with all
standard extended coverage that may be required by any first mortgagee, and
against loss or damage due to war or nuclear agents, if that insurance is
available and required by any first mortgagee. The insurance shall be in an
amount sufficient to prevent Lessor and Lessee from becoming co-insurers under
provisions of applicable policies of insurance, but in any event in an amount
not less than One Hundred
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Percent (100%) of the full insurable value of the demised premises, excluding
the cost of excavation and of foundations. If at any time there is a dispute as
to the amount of such insurance the same shall be settled by arbitration.
(2) Personal Injury and Property Damage Insurance. Insurance
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against liability for bodily injury and property damage and machinery insurance,
all to be in amounts of not less than One Million Dollars ($1,000,000.00) per
occurrence, and in forms of insurance policies as may from time to time be
required by Lessor, shall be provided by Lessee. This requirement shall
specifically include plate glass insurance, covering the glass in the demised
premises.
(3) Other Insurance. Lessee shall provide and keep in force
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other insurance in amounts that may from time to time be required by Lessor
against other insurable hazards as are commonly insured against for the type of
business activity that Lessee will conduct.
(b) All insurance as provided by Lessee as required by this section
shall be carried in favor of Lessor and Lessee as their respective interests may
appear, and in the case of insurance against damage to the demised premises by
fire or other casualty, shall provide that loss, if any, shall be adjusted with
and be payable to Lessor. If requested by Lessor, any insurance against fire or
other casualty shall provide that loss shall be payable to the holder under a
standard mortgage clause. Rent insurance and use and occupancy insurance may be
carried in favor of Lessee, but the proceeds are hereby assigned to Lessor to be
held by Lessor as security for the payment of the rent and any additional rent
hereunder until restoration of the premises. All insurance shall be written with
responsible companies that Lessor shall approve, and the policies shall be held
by Lessor or, when appropriate, by the holder of any mortgage, in which case
copies of the policies or certificates of insurance shall be delivered by Lessee
to Lessor. All policies shall require thirty (30) days' notice by certified mail
to Lessor of any cancellation or change affecting any interest of Lessor.
10. Unlawful or Dangerous Activity. Lessee shall neither use nor occupy
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the demised premises or any part thereof for any unlawful, disreputable, or
ultrahazardous business purpose nor operate or conduct his business in a manner
constituting a nuisance of any kind. Lessee shall immediately, on discovery of
any unlawful, disreputable, or ultrahazardous use, take action to halt such
activity.
11. Indemnity. Lessee shall indemnify Lessor against all expenses,
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liabilities and claims of every kind, including reasonable counsel fees, by or
on behalf of any person or entity arising out of either (1) a failure by Lessee
to perform any of the terms and conditions of this lease, (2) any injury or
damage happening on or about the demised premises, (3) failure to comply with
any law of any governmental authority, or (4) any mechanics lien or security
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interest filed against the demised premises or equipment, materials or
alterations of buildings or improvements thereon.
12. Default or Breach. Each of the following events shall constitute a
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default or breach of this lease by Lessee:
(a) If Lessee, or any successor or assignee of Lessee while in
possession, shall file a petition in bankruptcy or insolvency or for
reorganization under any bankruptcy act, or shall voluntarily take advantage of
any such act by answer or otherwise, shall make an assignment for the benefit of
credits.
(b) If involuntary proceedings under any bankruptcy law or insolvency
act shall be instituted against Lessee, or if a receiver or trustee shall be
appointed of all or substantially all of the property of Lessee, and such
proceedings shall not be dismissed or the receivership or trusteeship vacated
within thirty (30) days after the institution or appointment.
(c) If Lessee shall fail to pay Lessor any rent or additional rent
when the rent shall become due and shall not make the payment within ten (10)
days after notice thereof in writing by Lessor to Lessee.
(d) If Lessee shall fail to perform or comply with any of the
conditions of this lease and if the nonperformance shall continue for a period
of ten (10) days after notice thereof by Lessor to Lessee or, if the performance
cannot be reasonably had within the ten-day period, Lessee shall not be in good
faith have commenced performance within the ten-day period and shall not
diligently proceed to completion of performance.
(e) If Lessee shall vacate or abandon the demised premises.
(f) If this lease or the estate of Lessee hereunder shall be
transferred to or shall pass to or devolve on any other person or party, except
in the manner herein permitted.
(g) If Lessee fails to take possession of the demised premises on the
term commencement date, or within thirty (30) days after notice that the demised
premises are available for occupancy, if the term commencement date is not fixed
herein or shall be deferred as herein provided.
13. Effect of Default. In the event of any default hereunder, as set forth
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in Section Twelve, the rights of Lessor shall be as follows:
(a) Lessor shall have the right to cancel and terminate this lease,
as well as all of the right, title and interest of Lessee hereunder, by giving
to Lessee not less than thirty (30) days' notice of the cancellation and
termination. On expiration of the time fixed in the notice, this lease and the
right, title and interest of Lessee hereunder, shall terminate in the same
manner and with the same force and effect, except as to Lessee's liability, as
if the date fixed in the notice of cancellation and termination were the end of
the term herein originally determined.
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(b) Lessor may elect, but shall not be obligated, to make any payment
required of Lessee herein or comply with any agreement, term, or condition
required hereby to be performed by Lessee, and Lessor shall have the right to
enter the demised premises for the purpose of correcting or remedying any such
default and to remain until the default has been corrected or remedied, but any
expenditure for the correction by Lessor shall not be deemed to waive or release
the default of Lessee or the right of Lessor to take any action as may be
otherwise permissible hereunder in the case of any default.
(c) Omitted.
(d) Lessor may re-let the premises or any part thereof for any term
without terminating the lease, at the rent and on the terms as Lessor may
choose. Lessor may make alterations and repairs to the premises. The duties and
liabilities of the parties if the premises are relet as provided herein shall be
as follows:
(1) In addition to Lessee's liability to Lessor for breach of
the lease, Lessee shall be liable for all expenses of the reletting, for the
alterations and repairs made, and for the difference between the rent received
by Lessor under the new lease agreement and the rent installments that are due
for the same period under this lease.
(2) Lessor shall have the right to apply the rent received from
reletting the premises (A) to reduce the indebtedness of Lessee to Lessor under
the lease, not including indebtedness for rent, (B) to expenses of the re-
letting and alternations and repairs made, (C) to rent due under the lease, or
(D) to payment of future rent under this lease as it becomes due.
If the new Lessee doe not pay a rent installment promptly to
Lessor, and the rent installment has been credited in advance of payment to the
indebtedness of Lessee other than rent, or if rentals from the new Lessee have
been otherwise applied by Lessor as provided for herein and during any rent
installment period are less than the rent payable for the corresponding
installment period under this lease, Lessee shall pay Lessor the deficiency,
separately for each rent installment deficiency period, and before the end of
that period. Lessor may at any time after a re-letting terminate the lease for
the breach on which Lessor had based the re-entry and subsequently re-let the
premises.
(e) After re-entry, Lessor may procure the appointment of a receiver
to take possession and collect rents and profits of the business of Lessee, and,
if necessary to collect the rents and profits. The receiver may carry on the
business of Lessee and take possession of the personal property used in the
business of Lessee, including inventory, trade fixtures, and furnishings, and
use them in the business without compensating Lessee. Proceedings for
appointment of a receiver by Lessor, or the appointment of a receiver and the
conduct of the business of Lessee by the receiver, shall not terminate and
forfeit this lease unless Lessor has given written notice of termination to
Lessee as provided herein.
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14. Destruction of Premises. In the event of a partial destruction of the
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premises during the term from any cause, Lessor shall forthwith repair the same,
provided the repairs can be made within thirty (30) days, or such other period
of time upon which Lessor and Lessee shall agree, under the laws and regulations
of applicable governmental authorities. Any partial destruction shall neither
annul nor void this lease, except that the Lessee shall be entitled to a
proportionate reduction of rent while the repairs are being made, any
proportionate reduction being based on the extent to which the making of repairs
shall interfere with the business carried on by Lessee in the premises. If the
repairs are made within thirty (30) days, this lease shall continue in full
force and effect and the rent shall be proportionately rebated as previously set
forth in this section. In the event that Lessor does not elect to make repairs
that cannot be made in the specified time, or those repairs cannot be made under
the laws and regulations of the applicable governmental authorities, this lease
may be terminated at the option of either party. In the event of any partial
destruction that Lessor is obligated to repair or may elect to repair under the
terms of this paragraph, the provisions of any applicable law-authorizing Lessee
to make repairs at the expense of Lessor, are hereby waived by Lessee. Should
the building in which the demised premises are situated be destroyed to the
extent of not less than Forty Percent (40%) of the replacement cost thereof,
this lease shall be terminated. Any dispute between Lessor and Lessee relative
to the provisions of this section shall be subject to arbitration, pursuant to
Section 25, below. Each party shall select an arbitrator and the two arbitrators
so selected shall select a third arbitrator between them, the controversy being
heard by the three arbitrators so selected. The decision of the three
arbitrators shall be final and binding on both Lessor and Lessee, who shall bear
the cost of the arbitration equally between them.
15. Condemnation. Rights and duties in the event of condemnation are as
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follows:
(a) If the whole of the demised premises shall be taken or condemned
by any competent authority for any public or quasi-public use or purpose, this
lease shall cease and terminate as of the date on which title shall vest thereby
in that authority, and the rent reserved hereunder shall be apportioned and paid
up to that date.
(b) If only a portion (less than 40%) of the demised premises shall
be taken or condemned, this lease and the term hereof shall not cease or
terminate, but the rent payable after the date on which Lessee shall be required
to surrender possession of such portion shall be reduced in proportion to
decreased use suffered by Lessee as the parties may agree or as shall be
determined by arbitration.
(c) In the event of any taking or condemnation in whole or in part,
the entire resulting award of consequential damages shall belong to Lessor
without any deduction therefrom for the value of the unexpired term of this
lease or for any other estate or interest in
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the demised premises now or later vested in Lessee. Lessee assigns to Lessor all
his right, title, and interest in any and all such awards.
(d) In the event of a partial taking, Lessee shall promptly proceed
to restore the remainder of the building on the demised premises to a self-
contained architectural unit, and Lessor shall pay to a Lessee the cost of
restoration but in no event to exceed a sum equal to the amount of the separate
award made to and received by Lessor for consequential damages. In the event
there is no separate award for consequential damage, the value shall be fixed
and settled by arbitration as herein provided. The balance of any separate award
or allocated amount not so used shall belong to and be retained by Lessor as its
sole property.
(e) In case of any governmental action not resulting in the taking or
condemnation of any portion of the demised premises but creating a right to
compensation therefor, or if less than a fee title to all of any portion of the
demised premises shall be taken or condemned by any governmental authority for
temporary use or occupancy, this lease shall continue in full force and effect
without reduction or abatement of rent, and the rights of the parties shall be
unaffected by the other provisions of this section, but shall be governed by
applicable law.
16. Subordination. This lease and all rights of Lessee hereunder shall be
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subject and subordinate to the lien of any and all mortgages that may now or
hereafter affect the demised premises, or any part hereof, and to any and all
renewals, modifications, or extensions of any such mortgages. Lessee shall on
demand execute, acknowledge, and deliver to Lessor, without expense to Lessor,
any and all instruments that may be necessary or property to subordinate this
lease and all rights therein to the lien of any such mortgage or mortgages and
each renewal, modification, or extension, and if Lessee shall fail at any time
to execute, acknowledge, and deliver any such subordination instrument, Lessor
in addition to any other remedies available in consequence thereof, may execute,
acknowledge, and deliver the same as Lessee's attorney in fact and in Lessee's
name. Lessee hereby irrevocably makes, constitutes, and appoints Lessor, its
successors and assigns, his attorney in fact for that purpose.
17. Access to Premises; Signs Posted by Lessor. Lessee shall permit Lessor
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or its agents to enter the demised premises at all reasonable hours to inspect
the premises or make repairs that Lessee may neglect or refuse to make in
accordance with the provisions of this lease, and also to show the premises to
prospective buyers. At any time within one year prior to expiration of the term,
Lessor may show the premises to persons wishing to rent the premises. Lessee
shall, within three (3) months prior to expiration of the term, permit the usual
notices of "For Rent" and "For Sale" to be placed on the demised premises and to
remain thereon without hindrance and molestation.
18. Easements, Agreements or Encumbrances. The parties shall be bound by
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all existing easements, agreements, and encumbrances of record relating to the
demised premises,
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and Lessor shall not be liable to Lessee for any damages resulting from any
action taken by a holder of an interest pursuant to the rights of that holder
thereunder.
19. Quiet Enjoyment. Lessor warrants that Lessee shall be granted
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peaceable and quiet enjoyment of the demised premises free from any eviction or
interference by Lessor if Lessee pays the rent and other charges provided
herein, and otherwise fully and punctually performs the terms and conditions
imposed on Lessee.
20. Liability of Lessor. Lessee shall be in exclusive control and
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possession of the demised premises, and Lessor shall not be liable for any
injury or damages to any property or to any person on or about the demised
premises nor for any injury or damage to any property of Lessee, except where
such injury or damage shall be the result of gross negligence or criminal
conduct on the part of the Lessor, Lessor's agents, employees or
representatives. The provisions herein permitting Lessor to enter and inspect
the demised premises are made to insure that Lessee is in compliance with the
terms and conditions thereof and makes repairs that Lessee has failed to make.
Lessor shall not be liable to Lessee for any entry on the premises for
inspection purposes.
21. Rent Abatement. No abatement, diminution, or reduction of rent shall
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be claimed or allowed to Lessee or any person claiming under him under any
circumstances, whether for inconvenience, discomfort, interruption of business
or otherwise, arising from the making of alterations, improvements, or repairs
to the premises, because of any governmental laws or arising from and during the
restoration of the demised premises after the destruction or damage thereof by
fire or other cause or the taking or condemnation of a portion only of the
demised premises except as provided in Section Fifteen.
22. Representations by Lessor. At the commencement of the term Lessee
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shall accept the buildings and improvements and any equipment in their existing
condition and state of repair, and Lessee agrees that no representations,
statements or warranties, express or implied, have been made by or on behalf of
Lessor in respect thereto except as contained in the provisions of this lease,
and Lessor shall in no event be liable for any latent defects.
23. Waivers. The failure of either party to insist on a strict performance
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of any of the terms and conditions hereof shall be deemed a waiver of the rights
or remedies that a party may have regarding that specific instance only, and
shall not be deemed a waiver of any subsequent breach or default in any terms
and conditions.
24. Notice. All notices to be given with respect to this lease shall be in
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writing. Each notice shall be sent by registered or certified mail, postage
prepaid, and return receipt requested, to the party to be notified at the
address set forth herein or at such other address as either party may from time
to time designate in writing.
Every notice shall be deemed to have been given at the time it shall be
deposited in the United States Mails in the manner prescribed herein. Nothing
contained herein shall be
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construed to preclude personal service of any notice in the manner prescribed
for personal service of a summons or other legal process.
25. Arbitration. In a situation where this lease provides for the
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settlement of a dispute or question by arbitration, the same shall be settled by
arbitration in accordance with the current rules of the American Arbitration
Association, and judgment on the award rendered may be entered in any court
having jurisdiction hereof.
26. Assignment, Mortgage, or Sublease. Neither Lessee nor his successors
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or assigns shall assign, mortgage, pledge, or encumber this lease or sublet the
demised premises in whole or in part, or permit the premises to be used or
occupied by others, nor shall this lease be assigned or transferred by operation
of law, without the prior consent in writing of Lessor in each instance. If this
lease is assigned or transferred, or if all or any part of the demised premises
is sublet or occupied by anybody other than Lessee, Lessor may, after default by
Lessee, collect rent from the assignee, transferee, subtenant, or occupant, and
apply the net amount collected to the rent reserved herein, but no such
assignment, subletting, occupancy, or collection shall be deemed a waiver of any
agreement or condition hereof, or the acceptance of the assignee, transferee,
subtenant, or occupant as Lessee. Lessee shall continue to be liable hereunder
in accordance with the terms and conditions of this lease and shall not be
released from the performance of the terms and conditions hereof. The consent by
Lessor to an assignment, mortgage, pledge, or transfer shall not be construed to
relieve Lessee from obtaining the express written consent of Lessor to any
future transfer of interest.
27. Option to Renew. Lessor grants to Lessee an option to renew this lease
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for a period of five (5) years after expiration of the term of this lease. The
amount of monthly rent payable for the renewal term shall be based on the cost-
of-living index published by the United States Department of Labor, Bureau of
Labor Statistics, Office of Economic Analysis, Kansas City region-all items,
using the period of 1998-99 = 100 as the base period. The monthly rent for the
first renewal term shall be computed by dividing the sum of the base rent set
forth in Paragraph 2 above, which is the monthly rent installment for the
initial term of the lease, by the index number for the calendar month
immediately preceding the commencement of the renewal term, by the index number
for the first month of the initial term of this lease, and then multiplying that
amount by the index number for the month immediately preceding the initial month
of the renewal term of this lease, with all other terms and conditions of the
renewal term to be the same as those herein. To exercise this option Lessee must
give Lessor written notice of the intention to do so at least one hundred twenty
(120) days before the initial lease term expires.
28. Early Lease Termination Option. Lessor hereby grants to Lessee an
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option to terminate this agreement after the initial five (5) year term, if the
option to renew shall have been exercised by Lessee. Such option shall permit
Lessee to cancel this agreement by
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providing to Lessor a 60-day written notice of intent to cancel the lease early,
effective on the next anniversary date during the second five (5) years of this
lease or during any subsequent renewal term of this lease, along with payment of
an early termination fee equal to twelve months' rental.
29. Lessee's Right to Sublet. Lessee shall at all times be permitted to
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sublet any or all of the demised property, subject to the prior written consent
of the Lessor, which shall not be unreasonably withheld.
30. Surrender of Possession. Lessee shall, on the last day of the term, or
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on earlier termination and forfeiture of the lease, peaceably and quietly
surrender and deliver the demised premises to Lessor free of subtenancies,
including all buildings, additions, and improvements constructed or placed
thereon by Lessee, except movable trade fixtures, all in good condition and
repair. Any trade fixtures or personal property not used in connection with the
operation of the demised premises and belonging to Lessee, if not removed at the
termination or default, and if Lessor shall so elect, shall be deemed abandoned
and become the property of Lessor without any payment or offset therefor. Lessor
may remove such fixtures or property from the demised premises and store them at
the risk and expense of Lessee if Lessor shall not so elect. Lessee shall repair
and restore all damage to the demised premises caused by the removal of
equipment, trade fixtures, and personal property. Lessee and Lessor agree that a
Phase II Environmental Site Assessment ("Assessment"), including testing for
soil contamination, shall be performed by an environmental audit contractor to
be selected jointly by Lessor and Lessee. Lessee shall reimburse Lessor for the
entire cost of the Assessment and shall indemnify and hold Lessor harmless from
all actual costs required for abatement or redemption of hazardous substances,
as determined by the Assessment, including any redemption and cleanup of
contamination from any hazardous substances used by Lessee on the leased
premises during the term of the lease.
31. Remedies of Lessor.
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(a) In the event of a breach or a threatened breach by Lessee of any
of the terms or conditions hereof, Lessor shall have the right of injunction to
restrain Lessee and the right to invoke any remedy allowed by law or in equity,
as if the specific remedies of indemnity or reimbursement were not provided
herein.
(b) The rights and remedies given to Lessor in this lease are
distinct, separate and cumulative, and no one of them, whether or not exercised
by Lessor, shall be deemed to be in exclusion of any of the other herein by
law or by equity provided.
(c) In all cases hereunder, and in any suit, action, or proceeding of
any kind between the parties, it shall be presumptive evidence of the fact of
the existence of a charge
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being due if Lessor shall produce a xxxx, notice, or certificate of any public
official entitled to give that notice to the effect that such charge appears of
record on the books in his office and has not been paid.
(d) No receipt of money by Lessor from Lessee after default or
cancellation of this lease in any lawful manner shall (1) reinstate, continue,
or extend the term or affect any notice given to Lessee, (2) operate as a waiver
of the right of Lessor to enforce the payment of rent and additional rent then
due or falling due, or (3) operate as a waiver of the right of Lessor to
recover possession of the demised premises by proper suit, action, proceeding,
or other remedy. After (1) service of notice of termination and forfeiture as
herein provided and expiration of the time specified therein, (2) the
commencement of any suit, action, proceeding, or other remedy, or (3) final
order or judgment for possession of the demised premises, Lessor may demand,
receive, and collect any monies due, without in any manner affecting such
notice, order or judgment. Any and all such monies so collected shall be deemed
to be payment on account of the use and occupation of the demised premises or at
the election of Lessor, on account of the liability of Lessee hereunder.
32. Total Agreement; Applicable to Successors. This lease contains the
-----------------------------------------
entire agreement between the parties and cannot be changed or terminated except
by a written instrument subsequently executed by the parties hereto. This lease
and the terms and conditions hereof apply to and are binding on the heirs, legal
representatives, successors, and assigns of both parties.
33. Applicable Law. This agreement shall be governed by and construed in
--------------
accordance with the laws of the State of Missouri.
34. Time of the Essence. Time is of the essence in all provisions of this
-------------------
lease.
IN WITNESS WHEREOF, the parties have executed this lease at St. Xxxxxx,
Missouri, the day and year first above written.
L & A DEVELOPMENT, L.L.C. VERDANT BRANDS, INC.
(formerly known as Ringer Corporation)
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxx X. XxXxxxx
------------------------------- ------------------------------------
Xxxxxx X. Xxxxx, Manager Name: Xxxx X. XxXxxxx
Title: Sr. VP, Operations
Attest:
/s/ Xxxxxx Xxxxxxxx
---------------------------------------
Secretary
LESSOR LESSEE
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EXHIBIT "A"
A TRACT OF LAND IN THE NORTHWEST ONE-QUARTER OF THE SOUTHWEST ONE-QUARTER OF
SECTION THIRTY-SIX (36), TOWNSHIP FIFTY-SEVEN (57) NORTH, RANGE THIRTY-SIX (36)
WEST, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT 160 FEET EAST OF THE NORTHWEST
CORNER OF THE SOUTHWEST ONE-QUARTER OF SECTION THIRTY-SIX (36), TOWNSHIP FIFTY-
SEVEN (57) NORTH, RANGE THIRTY-SIX (36) WEST, THENCE EAST ALONG THE HALF-SECTION
LINE 1169.41 FEET TO THE NORTHEAST CORNER OF THE NORTHWEST QUARTER OF THE
SOUTHWEST ONE-QUARTER, THENCE SOUTH 195.38 FEET TO THE CENTER OF THE PUBLIC
ROAD, THENCE IN A SOUTHWESTERLY DIRECTION ALONG THE CENTER OF THE ROAD 1179.85
FEET TO A POINT 160 FEET EAST OF THE WEST LINE OF SAID SECTION, THENCE NORTH 340
FEET TO THE POINT OF BEGINNING,
ALSO, THE SOUTH ONE-HALF OF THE SOUTHWEST QUARTER OF THE NORTHWEST ONE-QUARTER
OF SECTION THIRTY-SIX (36), TOWNSHIP FIFTY-SEVEN (57) NORTH, RANGE THIRTY-SIX
(36) WEST, ALL IN XXXXXXXX COUNTY, MISSOURI.
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