Exhibit 10.7
INDEX TO LEASE BETWEEN
R & R PROPERTIES (LANDLORD)
AND
TRUPAK, INC. (TENANT)
WEST UNITY, OHIO
ARTICLE HEADING PAGE NO.
------- ------- -------
1 Premises. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2 Term and Option to Renew. . . . . . . . . . . . . . . . . . . 1
3 Minimum Rent. . . . . . . . . . . . . . . . . . . . . . . . . 2
4 Tenant's Tax Obligations. . . . . . . . . . . . . . . . . . . 3
5 Construction of Improvements and Possession.. . . . . . . . . 4
6 Use of Premises.. . . . . . . . . . . . . . . . . . . . . . . 5
7 Assignment and Subletting.. . . . . . . . . . . . . . . . . . 5
8 Tenant's Right to Make Improvements.. . . . . . . . . . . . . 6
9 Tenant's Right to Mortgage. . . . . . . . . . . . . . . . . . 7
10 Care and Maintenance of Exterior Premises.. . . . . . . . . . 7
11 Landlord's Obligations to Repair and Maintain.. . . . . . . . 8
12 Tenant's Obligations to Repair and Maintain . . . . . . . . . 8
13 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . 9
14 Restoration; Damage by Fire or Other Casualty. . . . . . . . 10
15 Waiver of Subrogation.. . . . . . . . . . . . . . . . . . . . 11
16 Gas, Water, Heat, Electricity.. . . . . . . . . . . . . . . . 11
17 Eminent Domain. . . . . . . . . . . . . . . . . . . . . . . . 11
18 Bankruptcy and Insolvency . . . . . . . . . . . . . . . . . . 12
19 Default by Tenant and Right to Cure by Tenant.. . . . . . . . 13
20 Default by Landlord and Right to Cure by Tenant.. . . . . . . 13
21 Right to Re-Entry . . . . . . . . . . . . . . . . . . . . . . 14
22 Subordination - Attornment. . . . . . . . . . . . . . . . . . 14
23 Quiet Enjoyment.. . . . . . . . . . . . . . . . . . . . . . . 15
24 Ownership of Improvements.. . . . . . . . . . . . . . . . . . 16
25 Investment Tax Credit.. . . . . . . . . . . . . . . . . . . . 16
26 Compliance with Laws. . . . . . . . . . . . . . . . . . . . . 17
27 Interpretation. . . . . . . . . . . . . . . . . . . . . . . . 17
28 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
29 Holding Over. . . . . . . . . . . . . . . . . . . . . . . . . 18
30 Consent Not Unreasonably Withheld.. . . . . . . . . . . . . . 18
31 Estoppel Certificate. . . . . . . . . . . . . . . . . . . . . 18
32 Cumulative Rights.. . . . . . . . . . . . . . . . . . . . . . 18
33 Partial Invalidity. . . . . . . . . . . . . . . . . . . . . . 18
34 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
35 Short Form Lease. . . . . . . . . . . . . . . . . . . . . . . 19
36 Captions and Section Numbers. . . . . . . . . . . . . . . . . 19
37 Successors. . . . . . . . . . . . . . . . . . . . . . . . . . 19
Exhibit "A" - Legal Description
Exhibit "B" - Site Plan
Exhibit "C" - Landlord's Work
LEASE
THIS LEASE, made and entered into as of the 12th day of March, 1984,
by and between R & R Properties, an Ohio Partnership, ("Landlord"), whose
address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and TRUPAK, INC., an
Ohio corporation, ("Tenant"), whose address is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
The parties hereto do hereby agree as follows:
1. PREMISES.
Landlord, for and in consideration of the rents to be paid and the
covenants and agreements to be kept and performed by Tenant, does hereby lease
to Tenant premises situated in the Village of West Unity, ▇▇▇▇▇▇▇▇ County, Ohio,
containing approximately 44,866 square feet of building area located on the
property more particularly described on Exhibit "A" attached hereto and made a
part hereof, together with the exclusive right to use the parking area and the
non-exclusive right to use certain common facilities, all of which are more
particularly identified on the site plan marked Exhibit "B" attached hereto and
made a part hereof (which premises are collectively hereinafter referred to as
the "Demised Premises" or "Leased Premises").
2. TERM AND OPTION TO RENEW.
A. The term of this Lease shall commence upon the date on which
Landlord notifies Tenant in writing that the Leased Premises have been completed
in accordance with Exhibit "C" ("Landlord's Work") and are available for
Tenant's occupancy ("Commencement Date") and shall end on the tenth (10th) lease
year of the lease term, as the term "Lease Year" is hereinafter defined, unless
extended or sooner terminated as hereinafter provided. For the purposes of this
Lease, the first lease year shall be a period commencing on the
first day of the month following the Commencement Date, if such date is other
than the first day of the month, and the term "lease year" shall mean a fiscal
year of twelve (12) consecutive calendar months thereafter. The phrase "lease
term" as used in this Lease shall be the term of this Lease and any extensions
thereof.
In the event the term of this Lease shall not have commenced by July
1, 1984, Tenant shall have the right to cancel this Lease upon notice to
Landlord.
B. Tenant shall have and is hereby granted an option to extend the
term of this Lease for one (1) successive period of five (5) years on the same
terms and conditions as stated herein, except that the annual rental shall be
One Hundred Eleven Thousand Six Hundred Dollars ($111,600.00), payable monthly
at the rate of Nine Thousand Three Hundred Dollars ($9,300.00). Such option
shall be exercised by notice in writing to Landlord given not later than six (6)
months prior to the expiration of the initial term. Upon the mailing of such
notice, the term of this Lease shall be extended as above provided. If the
option shall be exercised, any reference in this Lease to the term hereof shall
be deemed to apply to the extended term.
3. MINIMUM RENT.
Tenant hereby hires said Demised Premises for the term herein
mentioned, and, in consideration of the peaceful use and enjoyment of the
Demised Premises and the performance of all of the terms and provisions thereof
to be performed by Landlord, does hereby covenant and agree to pay Landlord, as
the minimum rent for said premises, the sum of Ninety Three Thousand Dollars
($93,000.00) per year, payable in equal monthly installments of Seven Thousand
Seven Hundred Fifty Dollars ($7,750.00) each, in advance, on or before the first
day of each month. In the event the minimum
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rent commences or terminates on a day other than the first day of a calendar
month, then such rent shall be prorated on a daily basis based upon a thirty
(30) day calendar month.
All rental payments due hereunder shall be sent to Landlord's address
first above given, or such other place as Landlord may designate.
In the event Tenant fails to mail the rent on or before the 8th day of
the month, Tenant shall pay the required rent, plus Ten Percent (10%) of the
monthly rent as a "late payment fee". Provided, however, there shall be no late
payment fee unless and until the Tenant has failed to pay the monthly rent on a
timely basis (i.e., mailed on or before the 8th day of the month) for more than
once during any twelve (12) month period.
4. TENANT'S TAX OBLIGATIONS.
A. Tenant agrees to pay any increased real estate taxes and
assessments over and above the real estate taxes and assessments established on
the full valuation of the facilities to be completed for the Tenant after the
second full lease year. The Tenant's proportionate part shall be a fraction,
the numerator of which is the number of square feet of floor area in the Demised
Premises (44,866 square feet) and the denominator of which is the total number
of rentable square feet of floor area in the building (initially, 107,936 square
feet). Said amount shall be deemed to be additional rent and shall be due and
payable on the first of the month following delivery to Tenant of a receipt for
Landlord's payment of said taxes. It is expressly understood and agreed that
such annual tax increase, if any, shall not exceed Ten Percent (10%) per year.
Landlord's request for payment of such taxes shall be accompanied with copies of
the receipted tax bills for the current year and for the base tax year, together
with the
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appropriate computations. Payment of special assessments is to be made, if
permitted, on an installment basis, extending over the maximum period of time
available. Tenant shall have no obligation to pay any installment of special
assessment extended beyond the term of this Lease. All such taxes for the last
year of the term hereof shall be equitably prorated between the parties.
B. Tenant shall have the right to request Landlord to contest the
validity of the amount of taxes assessed or other public charges paid or to be
paid by Tenant, so long as Tenant is exercising good faith in making such
request.
5. CONSTRUCTION OF IMPROVEMENTS AND POSSESSION.
On or before May 1, 1984, Landlord, at its sole cost and expense,
shall make such improvements to the interior of the Leased Premises as is set
forth on Exhibit "C" ("Landlord's Work") attached hereto and made a part hereof.
Landlord shall use only new, first-class materials in the construction of its
work and Landlord agrees that all work to be performed by it shall be done in a
workmanlike manner in accordance with all applicable building and related codes
having jurisdiction.
Notwithstanding anything contained herein to the contrary, during the
period that Landlord's Work is being performed, Tenant shall have the right, on
a rent-free basis, to store inventory and supplies and/or move in machinery and
equipment at the Leased Premises, provided Tenant does not interfere with
Landlord's Work. Tenant may also use unleased portions of the building
contiguous to the Leased Premises rent free during the period of Landlord's
Work. Landlord shall not be responsible for any such items stored or installed
by Tenant prior to delivery of the Leased Premises to Tenant, other than
Landlord using reasonable and normal security.
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In the event Landlord fails to deliver the Leased Premises to Tenant,
ready for Tenant's occupancy, on or before the above referred to date, from and
after the Commencement Date Tenant shall have free rent for an equal period of
time as is caused by the Landlord's delay in delivering the Leased Premises to
Tenant.
Landlord hereby represents to Tenant and agrees to install, on or
before November 15, 1984, on the exterior of the building occupied by Tenant a
minimum of One (1) Inch of styrofoam insulation and a steel exterior facade from
grade level to roof level on all sides of the building, except the office area.
All exterior windows, except for the office area, will be covered by the steel
exterior facade. Failure of Landlord to install the exterior facade or to
complete same by November 15, 1984, shall result in a reduction in rent at the
rate of $100.00 per day for each day that such exterior facade has not been
installed after November 15, 1984.
6. USE OF PREMISES.
The Leased Premises may be used and occupied by Tenant for
manufacturing, warehousing and related operations, and for any other lawful
purpose, with the written consent of Landlord.
7. ASSIGNMENT AND SUBLETTING.
Tenant shall have the right at all times to assign or sublet all or
any part of the Demised Premises with Landlord's written consent, provided,
however, that any such assignment or subletting shall not release Tenant from
liability hereunder.
Notwithstanding anything contained herein to the contrary, Tenant
shall have the right, without Landlord's consent, to transfer or assign this
Lease or sublet the whole or any portion thereof to Tenant's Guarantor or wholly
owned subsidiary corpora-
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tion of Tenant or Tenant's Guarantor, or to any corporation succeeding to
substantially all the assets of Tenant as a result of the consolidation or
merger or to a corporation to which all or substantially all of the assets of
Tenant have been sold; provided, however, that in each of the foregoing
instances such other corporation shall assume in writing all of the Tenant's
obligations hereunder.
8. TENANT'S RIGHT TO MAKE IMPROVEMENTS.
Landlord agrees that Tenant may, from time to time and at any time
during the term hereof, in its sole discretion and at its own cost and expense,
remove, remodel, alter, add to or modify the interior of the Leased Premises, so
long as same does not affect the structural integrity of the building of which
the Leased Premises are a part and provided Tenant complies with the provisions
set forth in this Paragraph.
All such improvements shall be of a good and substantial character and
such as will not tend to decrease the value of the Leased Premises.
Tenant shall pay for all labor performed and materials furnished in
making such improvements and will keep the Demised Premises and improvements
thereon at all times free and clear of all liens for labor or materials
furnished in and about such construction, and will defend, at its own cost and
expense, each and every lien asserted or claim filed against said premises
and/or the buildings or improvements thereon, or any part thereof, for labor
claimed to have been so performed or material claimed to have been so furnished,
and promptly pay each and every judgment made or given against said premises, or
any part thereof, or the buildings and/or improvements thereon, and/or against
Landlord or Tenant, on account of any such lien and indemnify and save harmless
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Landlord, their successors and assigns from all and every claim and action on
account of such claim, lien or judgment or any of Landlord's agents, employees
or contractors, in or about such erection, construction or employment.
All such construction and improvements shall comply with all laws and
ordinances relating thereto.
9. TENANT'S RIGHT TO MORTGAGE.
Tenant, in its sole discretion, shall have the right, from time to
time, to borrow money and grant as security therefor a mortgage (or deed of
trust) on Tenant's leasehold interest covering the Demised Premises upon such
terms and conditions as are satisfactory to Tenant.
10. CARE AND MAINTENANCE OF EXTERIOR PREMISES.
During the term of this Lease, Landlord at its sole expense agrees to
maintain, replace and repair, as required, the exterior portions of the building
and the common areas as hereinafter defined. The term "common area" as used in
this Lease shall mean parking areas, lights and light standards, roadways,
sidewalks, truckways, landscaped areas, utilities, drainage and all other areas
or improvements located outside of any building situated on the property
described on Exhibit "A".
Landlord at its sole expense agrees to adequately light, (for the
purposes hereof the present lighting is deemed to be "adequate"), clean, remove
snow, stripe the parking areas, repair (or replace if necessary), police to
provide adequate security, if required, and maintain all of the common areas.
Tenant at its sole expense will keep and maintain the interior of the
Leased Premises in a clean, sanitary and safe condition.**The Leased Premises
will be kept free from rubbish and
**Also, Tenant shall pay for the electricity for the exterior lights attached to
Tenant's portion of the Leased Premises.
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dirt at all times, and Tenant shall store all trash and garbage within a
confined area on the Leased Premises, and will arrange for the regular pick up
of garbage at Tenant's expense. Tenant shall not perform any acts or carry on
any practice which may be a nuisance or menace to other occupants of contiguous
properties. Tenant shall have the right, at its sole expense, to install and
maintain additional lighting in the parking areas.
11. LANDLORD'S OBLIGATIONS TO REPAIR AND MAINTAIN.
With respect to the building occupied by Tenant, Landlord shall keep
the foundation, exterior walls and roof in good condition and repair. Landlord
shall also provide the initial original equipment warranties on all equipment
furnished by Landlord to the Tenant. In addition, Landlord hereby grants to
Tenant a warranty for a period of one (1) year after the commencement of the
term hereof on all labor and materials furnished by Landlord with respect to
Landlord's Work as set forth on Exhibit "C".
Landlord hereby warrants and represents that the heating, electrical,
air conditioning, if any, plumbing and all mechanical systems will be in good
working order and repair at the time of commencement of the term of this Lease.
12. TENANT'S OBLIGATIONS TO REPAIR AND MAINTAIN.
Except as provided in Paragraph 11 hereof, with respect to the Leased
Premises, Tenant covenants and agrees that it will, at its own expense, during
the continuance of this Lease, keep the interior of such premises in good
condition and repair, and at the expiration of the term or any renewal or
extension thereof, to yield and give up the premises in good condition, damage
by usual wear and tear, fire, the elements or other casualties excepted.
In the event that there is a breakdown of the heating,
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air conditioning, electrical, plumbing or any mechanical systems within the last
three (3) years of the term of this Lease, and such breakdown results in the
necessity of replacing same, the Tenant's obligation with respect thereto shall
not exceed (i) Seventy-Five Percent (75%) of the cost, if such breakdown occurs
during the third from the last Lease Year; (ii) Fifty Percent (50%) of the cost,
if such breakdown occurs during the second from the last Lease Year; (iii)
Twenty Five Percent (25%) of the cost if such breakdown occurs during the last
Lease Year. Provided, however, if Tenant elects to exercise its Option to
extend the term of the Lease for an additional five (5) years, the Tenant will
retroactively reimburse the Landlord for any such costs, up to and including
One Hundred Percent (100%) thereof, and then the above formula shall apply to
the last three (3) years of the extended option term of this Lease.
13. INSURANCE.
A. Tenant agrees to procure and keep in full force and effect during
the term hereof public liability and property damage insurance with respect to
the Demised Premises in the sum of Five Hundred Thousand Dollars ($500,000.00)
for damage resulting to one person, and One Million Dollars ($1,000,000.00) for
damage resulting from one casualty, and One Hundred Thousand Dollars
($100,000.00) property damage. Tenant shall deliver said policies, or in lieu
thereof, certificates evidencing said policies, to Landlord, and upon Tenant's
failure to do so, Landlord may, at its option, obtain such insurance, and the
cost thereof shall be paid as additional rent due and payable upon the next
ensuing rent day. Notwithstanding anything herein to the contrary, Landlord and
Tenant shall be named as joint insured on all policies.
B. At all times during the term of this Lease, Land-
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lord agrees, at its expense, to maintain fire and extended coverage insurance
("all risk") on all buildings and improvements erected and constructed upon
the property described on Exhibit "A" attached hereto in insurance companies
of generally recognized responsibility and credit and authorized to do
business in the State of Ohio, in an amount determined by Landlord.
14. RESTORATION; DAMAGE BY FIRE OR OTHER CASUALTY.
In the event the Leased Premises shall be damaged or destroyed in
whole or in part by fire or other casualty during the term hereof, Landlord will
immediately repair and restore the same to good, tenantable condition within
sixty (60) days from the date of such damage or destruction, and the rental
herein provided for shall ▇▇▇▇▇ entirely in case the entire premises are
untenantable and pro-rata for the portion rendered untenantable, in case a part
only is untenantable, until the same shall be restored to a tenantable
condition. Tenant, in its sole discretion, shall have the right as to determine
whether or not the Premises are tenantable for its use. If such damage or
destruction cannot reasonably be repaired within the aforementioned period,
Landlord shall notify Tenant within ten (10) days after the happening of such
damage or destruction whether or not Landlord will repair or rebuild. If
Landlord elects not to repair or rebuild, this Lease shall be terminated. If
Landlord shall elect to repair or rebuild, Landlord shall specify the time
period within such repairs or restoration shall be completed, and Tenant shall
have the option, within ten (10) days after receipt of such notice, to elect
whether to terminate this Lease without any further liability hereunder, or to
extend the period of the term of this Lease equivalent to the time from the
happening of such damage or destruction until the Leased Premises are restored
to their former condition. Tenant shall not have any
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right to terminate with respect to the foregoing if Landlord repairs or rebuilds
the damaged premises within said sixty (60) day period. In the event Tenant
elects to extend the term of this Lease, Landlord shall restore the Leased
Premises to its former condition within the time specified in the notice, and
Tenant shall not be liable to pay rent for the period from the time of such
damage or destruction until the premises are so restored to their former
condition.
15. WAIVER OF SUBROGATION.
Each party hereto does hereby remise, release and discharge the other
party hereto and any officer, agent, employee or representative of such party of
and from any liability whatsoever hereafter arising from loss, damage or injury
caused by fire or other casualty for which insurance (permitting waiver of
liability and containing a waiver of subrogation) is carried by the injured
party at the time of such loss, damage or injury to the extent of any recovery
by the injured party under such insurance.
16. GAS, WATER, HEAT, ELECTRICITY.
Tenant will pay all charges, if any, made against said Leased Premises
for gas, water, heat and electricity during the continuance of this Lease as the
same shall become due. Tenant shall maintain a minimum temperature in the
Leased Premises of 60DEG. Fahrenheit, provided all other tenants are equally
obligated.
17. EMINENT DOMAIN.
If the whole or any part of the floor area of the Leased Premises
hereby leased shall be taken by public authority under the power of Eminent
Domain, then the term of this Lease shall cease as of the date possession shall
be taken by such public authority, and the rent shall be paid up to that date
with a proportionate refund by Landlord of such rent as shall have been paid in
advance.
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In the event that as a result of any taking under the power of eminent
domain the common areas and the parking area shall be reduced to less than
Eighty Percent (80%) of its former area, Tenant may, at Tenant's sole election,
terminate the term of this Lease by giving Landlord notice of the exercise of
its election within sixty (60) days after the taking, and the termination shall
be effective as of the time that possession of the part so taken shall be
required for public use. Thereafter, the parties shall be relieved of all
subsequent obligations under the terms of this Lease.
Landlord reserves to itself, and Tenant assigns to Landlord, all
rights to damages accruing on account of any taking under the power of eminent
domain or by reason of any act of any public or quasi-public authority for which
damages are payable. Tenant agrees to execute instruments of assignment as may
be reasonably required by Landlord in any proceedings for the recovery of the
damages if requested by Landlord, and to turn over to Landlord any damages that
may be recovered in any proceedings. It is agreed and understood, however, that
Landlord does not reserve to itself, and Tenant does not assign to Landlord, any
damages payable for loss of business or goodwill, depreciation to and costs of
removal of stock and trade fixtures of Tenant and relocation of Tenant's signs,
if any.
18. BANKRUPTCY AND INSOLVENCY.
Subject to the Federal Bankruptcy Act, if a petition in bankruptcy
shall be filed by Tenant, or if Tenant shall be adjudicated bankrupt, or if
Tenant shall make a general assignment for the benefit of creditors, or if in
any proceeding based upon the insolvency of Tenant a receiver of all the
property of Tenant shall be appointed and shall not be discharged within ninety
(90) days after
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such appointment, then Landlord may terminate this Lease by giving notice to
Tenant of its intention so to do; provided, however, neither bankruptcy,
insolvency, an assignment for the benefit of creditors nor the appointment of a
receiver shall affect this Lease or permit its termination so long as the
covenants on the part of Tenant to be performed shall be performed by Tenant or
someone claiming under it.
19. DEFAULT BY TENANT AND RIGHT TO CURE BY TENANT.
In the event default shall be made by Tenant in the payment of rent
upon the day it becomes due and payable and such default continues for a period
of ten (10) days after receipt by Tenant of written notice thereof, or if
default shall be made or suffered by Tenant in any of the other covenants and
conditions of the Lease required to be kept or performed by Tenant (other than
payment of rent), and Tenant fails to cure any such default(s) or commences to
cure such default(s) within thirty (30) days after receipt by Tenant of written
notice from Landlord specifying the default or defaults complained of, then and
in any such event or events and whenever and as often as such failure or default
shall occur, it shall and may be lawful for Landlord, at Landlord's election, at
any time thereafter, to re-enter into and repossess the premises and the
building(s) and improvements situated thereon, and every part thereof, and
Tenant and each and every other occupant to remove and put out. In the event
that Tenant's default (other than nonpayment of rent) is not cured within said
thirty (30) day period by reason of labor troubles, war, governmental
regulations, unavailability of materials or any condition beyond Tenant's
reasonable control, the time for curing such default shall be extended
accordingly.
20. DEFAULT BY LANDLORD AND RIGHT TO CURE BY TENANT.
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In the event default shall be made by Landlord in any of the covenants
and conditions in this Lease required to be kept or performed by Landlord and
Landlord fails to cure any such default(s) or commences to cure such default(s)
within thirty (30) days after receipt by Landlord of written notice from Tenant
specifying the default or defaults complained of, then and in any such event or
events and whenever and as often as such failure or default shall occur, it
shall and may be lawful for Tenant, at Tenant's election, and at any time
thereafter, to cure such default for the account of Landlord and Landlord shall,
within fifteen (15) days after notice, reimburse Tenant for any amount paid by
Tenant, plus interest on said amount based on the then existing prime rate of
the National Bank of Detroit and Tenant shall have the further right to set off
and deduct from the payment of rent due hereunder any and all amounts due to
Tenant. Provided, however, if Landlord's failure to perform would result in an
emergency which affects personal life or damage to property, then Tenant may
proceed to remedy the situation and give Landlord notice thereof as soon as
reasonably possible. In the event that Landlord's default is not cured within
said thirty (30) day period by reason of labor troubles, war, governmental
regulations, unavailability of materials or any condition beyond Landlord's
reasonable control, the time for curing such default shall be extended
accordingly.
21. RIGHT TO RE-ENTRY.
In the event that Landlord shall, during the period covered by this
Lease, obtain possession of said premises by re-entry, summary proceedings or
otherwise, Tenant hereby agrees to pay Landlord the expense (including
attorneys' fees) incurred in obtaining possession of said premises.
22. SUBORDINATION - ATTORNMENT.
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A. This Lease shall, at the request of Landlord, be subordinate to
any first mortgage or deed of trust that may now or hereafter be placed upon
the Leased Premises and to any and all advances to be made thereunder and to the
interest thereon and all renewals, replacements and extensions thereof, provided
the mortgagee or trustee named in the mortgages or trust deeds shall agree to
recognize the Lease of Tenant in the event of foreclosure, if Tenant is not then
in default. Landlord agrees to keep Tenant advised as to the existence of all
mortgages on the property, including the names and addresses of all mortgagees.
Landlord agrees to request all mortgagees to notify Tenant in writing of any
default in any mortgage payments. Tenant shall have the right, at its option,
to make payments of rentals directly to the mortgagees involved until such
default is cured or removed.
B. Landlord covenants, warrants and represents that any mortgagee or
trustee under a deed of trust of the Leased Premises shall agree in writing to
recognize the Lease of Tenant in the event of foreclosure if Tenant is not in
default hereunder. Tenant shall, in the event any proceedings are brought for
the foreclosure or in the event of the exercise of the power of sale under
any mortgage or deed of trust made by Landlord covering the Leased Premises, to
attorn to the purchaser upon such foreclosure or sale and recognize any such
purchaser as Landlord under this Lease.
23. QUIET ENJOYMENT.
Landlord represents, covenants and warrants that it is or will be the
record title holder of the Leased Premises at the time of commencement of the
term of this Lease, free and unencumbered, and has full right and lawful
authority to enter into this Lease for the full term hereof and that upon
Tenant's
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paying the rent and observing and performing all the terms, covenants and
conditions on Tenant's part to be observed and performed, Tenant may peaceable
and quietly have, hold, occupy and enjoy the Leased Premises without hindrance
or molestation for the full Lease term hereof.
Landlord acknowledges that Tenant's use of the Leased Premises and its
products are regulated and controlled by the Federal Drug Administration and
other governmental agencies and, as such, the Tenant's facilities are strictly
controlled and are held to a high degree of cleanliness, and purity of the
atmosphere. Accordingly, Landlord further represents, covenants and warrants
that the other occupants of the building of which the Leased Premises are a part
shall have separate space that is sealed off from Tenant's Leased Premises and
that such occupants shall be required to refrain from causing any fumes, odors
or noise level problems which exceed the Federal and State OSHA standards,
without the use of protective apparatus or devices, or which cause Tenant to be
in violation of any governmental controls. Any violation of this provision by
Landlord shall be deemed to be a material breach of this Lease, for which
Landlord shall be liable for damages, together with any other legal remedies
available to Tenant.
24. OWNERSHIP OF IMPROVEMENTS.
Upon the termination of this Lease, whether by lapse of time or
otherwise, all buildings and improvements then and at such time upon said Leased
Premises shall belong to Landlord, other than Tenant's furniture, trade fixtures
and signs, which shall be the sole property of Tenant.
25. INVESTMENT TAX CREDIT.
Landlord hereby agrees to elect under the applicable provisions of the
Internal Revenue Code of 1954, as amended (here-
-16-
inafter referred to as the "Code"), to pass through to Tenant all investment
tax credit which may be available to the facility covered by this Lease under
Section 38 of said Code which is not available to Landlord pursuant to the
Code with respect to qualified property installed by Landlord on the Leased
Premises. Landlord agrees to promptly execute all documents submitted by
Tenant and required by said Code, and regulations issued thereunder, to
enable Tenant to obtain such credit and to cooperate with Tenant with respect
to the maintenance of records in connection therewith.
26. COMPLIANCE WITH LAWS.
Tenant shall, at its own expense, promptly comply with all lawful
laws, orders, regulations or ordinances of all municipal, county and state
authorities affecting the premises hereby leased which are directly
attributable to Tenant's use of the Leased Premises, and the cleanliness,
safety, occupation and use of the same. Landlord hereby warrants and represents
to Tenant that at the commencement of the term hereof, the Leased Premises will
comply with all laws, orders, regulations and ordinances of all governmental
authorities having jurisdiction, and that Landlord will obtain and deliver to
Tenant a Certificate of Occupancy if available for the Leased Premises.
27. INTERPRETATION.
This Lease shall be interpreted in accordance with the laws of the
state in which the Leased Premises are situated.
28. NOTICES.
All notices provided for in this Lease shall be in writing and sent to
the respective parties at their addresses set forth at the beginning of this
Lease or at such other place or places as hereafter shall be designated in
writing by the respective parties. Such notice shall be served personally or
mailed by U.S. registered
-17-
or certified mail, return receipt requested, postage prepaid. Each party may,
from time to time, designate other parties and their addresses to whom copies of
notices are to be sent on their behalf.
29. HOLDING OVER.
It is hereby agreed that in the event Tenant herein holds over after
the termination of this Lease, thereafter, the tenancy shall be from month-to-
month in the absence of a written agreement to the contrary, which month to
month lease may be terminated by either party upon thirty (30) days prior
written notice.
30. CONSENT NOT UNREASONABLY WITHHELD.
Landlord agrees that whenever under this Lease provision is made for
Tenant securing the written consent of Landlord, such written consent shall not
be unreasonably withheld or delayed.
31. ESTOPPEL CERTIFICATE.
At any time and from time to time, Landlord and Tenant agree, upon the
request in writing from the other, to execute, acknowledge and deliver to the
requesting party a statement in writing certifying that this Lease is unmodified
and in full force and effect (or if there have been modifications, then the same
are in full force and effect) and the dates to which minimum rent and other
charges have been paid.
32. CUMULATIVE RIGHTS.
It is agreed that each and every of the rights, remedies and benefits
provided by this Lease shall be cumulative and shall not be exclusive of any
other of said rights, remedies and benefits, or of any other rights, remedies
and benefits allowed by law.
33. PARTIAL INVALIDITY.
If any term, covenant or condition of this Lease or the application
thereof to any person or circumstance shall, to any
-18-
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of the term, covenant, or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each term, covenant or condition of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
34. WAIVERS.
One or more waivers of any covenant or condition by either Landlord or
Tenant shall not be construed as a waiver of a further breach of the same
covenant or condition.
35. SHORT FORM LEASE.
Upon the request of either party hereto, the other party shall join in
the execution of a memorandum or so-called "short form" of lease for the purpose
of recordation. Said memorandum or short form of this Lease shall describe the
parties, the Leased Premises, the term of this Lease, options to renew and any
other special provisions except rentals payable hereunder and shall incorporate
this Lease by reference.
36. CAPTIONS AND SECTION NUMBERS.
The captions, section numbers and index appearing in this Lease are
inserted only as a matter of convenience and in no way define, limit, construe
or describe the scope or intent of the sections of this Lease or in any way
affect this Lease.
37. SUCCESSORS.
The covenants, conditions and agreements of this Lease shall be
binding upon and shall inure to the benefit of the heirs, representatives,
successors and permitted assigns of the parties hereto.
-19-
IN WITNESS WHEREOF, the parties hereto have caused these presents to
be executed all as of the day and year first above written.
WITNESSES: R & R PROPERTIES, an Ohio
partnership
/s/ ▇. ▇▇▇▇▇▇▇▇ Snow By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------- ---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
AND /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------- ---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
"Landlord"
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ TRUPAK, INC., an Ohio corporation
---------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ---------------------------------
"Tenant"
GUARANTY
FOR VALUE RECEIVED, and in consideration for, and as an inducement to
Landlord making the within Lease with Tenant, the undersigned hereby
unconditionally guarantees to Landlord, and Landlord's successors and assigns,
the full performance and observance of all the covenants, conditions and
agreements therein provided to be performed and observed by Tenant.
FRESHLABS, INC., a Michigan
corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Dated: March 12, 1984
-20-
LEGAL DESCRIPTION
The property is in the Village of West Unity, ▇▇▇▇▇▇▇▇ County, Ohio.
Legal description to be attached prior to the commencement of the
term, upon Landlord furnishing to Tenant a certified survey and legal
description in a form satisfactory to Tenant.
EXHIBIT "A"
MEMORANDUM OF LEASE
MEMORANDUM OF LEASE made this 12th day of March, 1984, between
R & R PROPERTIES, an Ohio Partnership, whose address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Landlord"), and TRUPAK, INC., an Ohio corporation,
whose address is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Tenant").
WITNESSETH:
WHEREAS, the parties hereto have entered into a Lease dated March 12,
1984, covering certain premises located in the Village of West Unity, ▇▇▇▇▇▇▇▇
County, Ohio; and
WHEREAS, it is the desire of the parties hereto to enter into a
Memorandum of Lease for the purpose of recording the same and giving notice of
the existence of said Lease;
NOW, THEREFORE, in consideration of the rents reserved and the
covenants and conditions more particularly set forth in that certain Lease
entered into between the parties hereto, Landlord and Tenant do hereby covenant,
promise and agree as follows:
1. Landlord does demise and lease unto Tenant and Tenant hereby
rents from Landlord, for the term hereinafter provided, and any extension
thereof, those certain premises consisting of 44,866 square feet of building
area located on the property more particularly described on Exhibit "A" attached
hereto and made a part hereof, together with the exclusive right to use the
parking area and the non-exclusive right to use certain common facilities which
are contiguous to the building area and are described on Exhibit "A" attached
hereto and made a part hereof.
2. The lease term shall commence upon the date on which Landlord
notifies Tenant in writing that the Leased Premises have been completed in
accordance with Exhibit "C" (Landlord's Work) attached to and made a part of the
Lease, and are available for Tenant's occupancy ("Commencement Date") and shall
end on the tenth lease year of the lease term.
3. Tenant shall have the right to renew and extend the Lease for one
(1) additional five (5) year period.
4. This instrument is executed for the purpose of giving public
record notice of the fact of the execution of the above described Lease, and all
of the terms and conditions of said Lease and amendments thereto, if any, are
incorporated by reference herein, and where in conflict, the terms of the Lease
shall prevail.
5. This agreement shall extend to and be binding upon the parties
hereto and their respective heirs, representatives, successors and permitted
assigns.
IN WITNESS WHEREOF, the parties hereto have executed these presents
and set their hands the day and year first above written.
WITNESSES:
R & R PROPERTIES, an Ohio partnership
/s/ ▇. ▇▇▇▇▇▇▇▇ Snow
------------------------------- By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ Snow ----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. Litivin
-------------------------------
▇▇▇▇▇▇ ▇. Litivin AND
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
"Landlord"
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ TRUPAK, INC., an Ohio corporation
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. Litivin By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- -----------------------------------
▇▇▇▇▇▇ ▇. Litivin ▇▇▇▇▇ ▇▇▇▇▇▇
"Tenant"
ACKNOWLEDGEMENT OF LANDLORD
STATE OF MICHIGAN )
) ss.
COUNTY OF ▇▇▇▇▇ )
On this 12th day of March, 1984, before me personally appeared
▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇, to me personally known to be the persons
who executed the foregoing Lease and acknowledged
-2-
FIRST AMENDMENT TO LEASE
THIS First Amendment to Lease made as of this first day of August, 1986, by
and between R & R PROPERTIES, an Ohio Partnership ("Landlord"), whose address is
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and TRUPAK, INC., an Ohio
Corporation ("Tenant"), whose address is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
W I T N E S S E T H
WHEREAS, Landlord and Tenant entered into a certain Lease dated as of the
12th day of March, 1984 ( a Memorandum of such Lease was recorded in Volume 21
of Leases, Page 289, ▇▇▇▇▇▇▇▇ County Records, Ohio) (hereinafter referred to as
"Lease") covering certain premises located in the Village of West Unity,
▇▇▇▇▇▇▇▇ County, Ohio, containing approximately 44,866 square feet of building
area, more particularly described in said Lease; and
WHEREAS, Tenant is desirous of leasing an additional 35,404 square feet of
building area located contiguous to the existing space such additional space
being more particularly identified on Exhibit A-1 attached hereto and made a
part hereof.
NOW THEREFORE, in consideration of the foregoing, the parties hereto hereby
agree to amend the terms of the Lease as hereinafter set forth:
1. Landlord does hereby lease to Tenant an additional 35,404 square feet
of building area ("New Space") contiguous to the existing Leased Premises which
additional space is more particularly identified on Exhibit A-1 and shall
hereafter be included as part of the Leased Premises.
2. Commencing August 1, 1986, Tenant shall pay to Landlord for the New
Space minimum rent in the sum of Four Thousand and 00/100 ($4,000.00) Dollars
for the month of August.
Provided Landlord has completed Landlord's Work in the New Space (as
hereinafter set forth) commencing September 1, 1986, Tenant hereby agrees to pay
to Landlord as minimum rent for the New Space the sum of Six Thousand One
Hundred Fifteen and 35/100 ($6,115.35) Dollars in advance on or before the first
day of each month throughout the balance of the lease term in addition to the
minimum rent set forth in Article 3 of the Lease.
3. With respect to the New Space, Landlord hereby represents and
warrants:
(A) A portion of the New Space, namely 10,000 square feet, is presently
leased to Elder Pharmaceuticals, Inc., on a month-to-month basis at a
rental of One Thousand Seven Hundred and 00/100 ($1,700.00) Dollars
per month. Such Lease was entered into as of July 1, 1985, as
amended, and expires on June 30, 1986. Said Lease is in full force
and effect and no default by either Landlord or Tenant exists
thereunder. No rent has been paid in advance other than the current
month's rent. Landlord hereby assigns and transfers over to Tenant
herein all of Landlord's right, title and interest as Landlord in and
to said Lease entered into with Elder Pharmaceuticals, Inc., as
aforedescribed. Landlord hereby agrees to execute a separate
-1-
assignment of said Lease to Tenant herein upon request of Tenant.
Landlord shall advise Elder Pharmaceuticals, Inc., commencing August
1, 1986, its lease has been assigned to Tenant herein and all rent
shall be payable directly to Tenant herein.
(B) All existing heating, electrical, plumbing and mechanical systems in
the New Space shall be in good condition and in working order. In
addition, the roof shall be sealed, air-tight and leak free.
(C) The Landlord shall complete by no later than September 1, 1986, the
following "Landlord's Work":
(1) Repair or replace all fixtures in the two restrooms located in
the New Space and such fixtures shall be in good operating
condition.
(2) Repair and seal all holes in the exterior walls in the New Space.
(3) In the 13,000 square feet of the New Space which currently is
unoccupied, Landlord will immediately paint the ceilings white
and remove all unused fixtures, plumbing, etc. from the ceiling
areas. The posts will also be painted white and all existing
sodium lighting will be placed in working order. Landlord will
supply all the necessary lighting fixtures to continue the
existing lighting pattern, except the Tenant will furnish 20
sodium lighting fixtures from their existing space which Landlord
will install in areas that the lights are missing. With respect
to the balance of the New Space, Landlord will complete
Landlord's Work (i.e., being the same improvements as set forth
above) as rapidly as possible immediately upon such space being
cleared and ready for "Landlord's Work".
4. Tenant agrees to pay any increase in Landlord's insurance premiums
over and above the sum of Fourteen Thousand Forty and 00/100 ($14,040.00)
Dollars with respect to the insurance carried by Landlord on the New Space.
Landlord shall submit to Tenant evidence of such increase in insurance and
within 30 days thereafter, Tenant shall pay said amount to Landlord.
5. Landlord and Tenant hereby agree that the commencement date of the
Lease was May 21, 1984, and the initial Lease term will end on May 31, 1994.
6. Accept as expressly amended herein, all other terms and conditions of
said Lease shall remain in full force and effect, are applicable to the New
Premises which shall hereafter be included in the Leased Premises and are hereby
ratified and confirmed by the parties hereto.
-2-
IN WITNESS WHEREOF, the respective parties hereto have executed this First
Amendment to Lease effective as of the date of this Agreement.
IN THE PRESENCE OF: R & R PROPERTIES, an Ohio
Partnership
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------- ------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇ AND /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------- ------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
"Landlord"
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ TRUPAK, INC., an Ohio Corporation
-----------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------- ------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
"Tenant"
-3-
EXHIBIT A-1
[FLOOR PLAN]
SECOND AMENDMENT TO LEASE
THIS second Amendment to lease made as of this 19th day of June, 1989, by
and between R & R PROPERTIES, an Ohio Partnership, ("Landlord"), whose address
is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and TRUPAK, INC., an Ohio
Corporation, ("Tenant"), whose address is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇.
W I T N E S S E T H
WHEREAS, Landlord and Tenant entered into a certain Lease dated as of the
12th day of March, 1984 (a Memorandum of such Lease was recorded in Volume 21 of
Leases, Page 289, ▇▇▇▇▇▇▇▇ County Records, Ohio) (hereinafter referred to as
"Lease") covering certain premises located in the Village of West Unity,
▇▇▇▇▇▇▇▇ County, Ohio, containing approximately 44,866 square feet of building
area, more particularly described in said Lease; and
WHEREAS, Landlord and Tenant entered into a first amendment to lease on
August 1, 1986 and additional 35,404 square feet of building area located
contiguous to the existing space.
WHEREAS, Tenant is desirous of leasing an additional 25,450 square feet
being more particularly identified on exhibit B-1 as area 5 beginning September
1, 1989.
WHEREAS, Tenant is desirous of leasing an additional 21,840 square feet
being now particularly identified on exhibit B-1 as area 6 beginning January 1,
1990.
NOW THEREFORE, in consideration of the foregoing, the parties hereto hereby
agree to amend the terms of the Leases as hereinafter set forth:
1. Landlord does hereby lease to Tenant an additional 25,450 square
feet of building area ("New Space") contiguous to the existing Leased Premises
which additional space is more particularly identified on Exhibit B-1 as area 5
and shall hereafter be included as part of the Leased Premises.
2. Provided Landlord has completed Landlord's Work in the New Space
(as hereinafter set forth) commencing September 1, 1989, Tenant hereby agrees to
pay to Landlord as minimum rent for the New Space, (area 5,) the sum of Four
Thousand Nine Hundred Thirty (4,930) Dollars in advance on or before the first
day of each month throughout the balance of the lease term in addition to the
minimum rent set forth in Article 3 of Lease.
3. Landlord does hereby lease to Tenant an additional 21,840 square
feet of building area ("New Space") contiguous to the existing Leased Premises
which additional space is more particularly identified on Exhibit B-1 as area 6
and shall hereafter be included as part of the Leased Premises, effective
January 1, 1990.
4. Commencing January 1, 1990, Tenant hereby agrees to pay to
Landlord as minimum rent for the New Space, area 6, the sum of Four Thousand
Ninety Five (4,095) Dollars in advance on or before the first day of each month
throughout the balance of the lease term in addition to the minimum rent set
forth in Article 3 of Lease.
(A) The Landlord shall complete by no later than September 1, 1989,
the following "Landlord's Work": or as described on exhibit B-2
hereto attached.
1
(B) Tenant agrees to pay any prorata increase in landlord's insurance
premiums over and above the sum of Fourteen Thousand Forty and 00/100
($14,040.00) Dollars with respect to the insurance carried by
Landlord. Landlord shall submit to Tenant evidence of such increase
in insurance and within 30 days thereafter, Tenant shall pay said
amount to Landlord.
(C) Except as expressly amended herein, all other terms and
conditions of said Lease shall remain in full force and effect, are
applicable to the New Premises which shall hereafter be included in
the Leased Premises and are hereby ratified and confirmed by the
parties hereto.
IN WITNESS WHEREOF the respective parties hereto have executed this Second
Amendment to Lease effective as of the date of this Agreement.
IN THE PRESENCE OF: R & R PROPERTIES, an Ohio
Partnership
/s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ AND /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------- --------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
"Landlord"
TRUPAK, INC., an Ohio
Corporation
/s/ BY: /s/ 6/19/89
---------------------------- -------------------------------
"Tenant"
2
THIRD AMENDMENT TO LEASE
THIS third Amendment to lease made as of the ______ day of ___________,
1992 by and between R & R PROPERTIES, an Ohio Partnership ("Landlord"), whose
address is ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇. ▇▇▇▇▇▇ Nutritional
Products, Inc., a California Corporation, successor by merger to Trupak, Inc.,
formerly an Ohio Corporation ("Tenant"), whose address is ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H
WHEREAS, Landlord and Tenant entered into a certain Lease dated as of the
12th day of March, 1984 (a Memorandum of such Lease was recorded in Volume 21 of
Leases, Page 289, ▇▇▇▇▇▇▇▇ County Records, Ohio) (hereinafter referred to as
"Lease") covering certain premises located in the Village of West Unity,
▇▇▇▇▇▇▇▇ County, Ohio, containing approximately 44,866 square feet of building
area, more particularly described in said Lease; and
WHEREAS, Landlord and Tenant entered into a first amendment to lease on
August 1, 1986 and additional 35,404 square feet of building area located
contiguous to the existing space.
WHEREAS, Landlord and Tenant entered into a second amendment to lease
effective September 1, 1989 an additional 25,450 square feet being more
particularly identified as area 5.
WHEREAS, Landlord and Tenant entered into a second amendment to lease
effective January 1, 1990 for an additional 21,840 square feet being now
particularly identified as area 6.
WHEREAS, Tenant is desirous of leasing an additional 4,960 square feet
being now particularly identified on exhibit B-1 as Area 5A beginning February
1, 1992.
NOW THEREFORE, in consideration of the foregoing, the parties hereto hereby
agree to amend the terms of the Leases as hereinafter set forth:
1. Landlord does hereby lease to Tenant an additional 4,960 square feet
of building area ("New Space") contiguous to the existing Leased
Premises which additional space is more particularly identified on
Exhibit B-1 as Area 5A and shall hereafter be included as part of the
Leased Premises.
2. Commencing February 1, 1992, Tenant hereby agrees to pay to Landlord
as minimum rent for the New Space (Area 5A), the sum of Nine Hundred
Sixty Three Dollars ($963.00) in advance on or before the first day of
each month throughout the balance of the lease term in addition to the
minimum rent set forth in Article 3 of Lease, and the
first and second amendment to the lease.
B. Tenant agrees to pay any prorata increase in landlord's
insurance premiums over and above the sum of Fourteen
Thousand Forty and 00/100 Dollars ($14,040.00) with respect
to the insurance carried by Landlord. Landlord shall submit
to Tenant evidence of such increase in insurance and within
30 days thereafter, Tenant shall pay said amount to
Landlord.
C. Except as expressly amended herein, all other terms and
conditions of said Lease shall remain in full force and
effect, are applicable to the New Premises which shall
hereafter be included in the Leased Premises and are hereby
ratified and confirmed by the parties hereto.
IN WITNESS WHEREOF the respective parties hereto have executed this Third
Amendment to Lease effective as of the date of this Agreement.
IN THE PRESENCE OF: R & R PROPERTIES, an Ohio
Partnership
-------------------------- ------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
AND
-------------------------- ------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
"Landlord"
▇. ▇▇▇▇▇▇ Nutritional
Products Inc.
A California Corporation
BY
-------------------------- ------------------------------
"Tenant"
[FLOORPLAN]
FOURTH AMENDMENT OF LEASE
This Fourth Amendment to Lease dated this 2nd day of August, 1994, by and
between R&R PROPERTIES, an Ohio Partnership ("Landlord"), whose address is ▇▇▇▇
▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇ HEALTH PRODUCTS INC. ("Tenant"),
a Delaware Corporation, whose address is ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a Lease dated March 12, 1984, as
amended by the First Amendment to Lease dated August 1, 1986, the Second
Amendment to Lease dated June 19, 1989 and the Third Amendment to Lease dated
August 3rd, 1992 (collectively the "Lease"); and
WHEREAS, the Lease is still in full force and effect (though currently
functioning on a month to month basis pursuant to Section 9 of the Lease);
NOW THEREFORE, Landlord and Tenant agree to amend the Lease as follows:
1. Effective the lst day of June, 1994, the Lease term shall be the
period commencing the 1st day of June, 1994 and ending the 31st day of May,
1995.
2. Effective as of the 1st day of June, 1994, and except with respect to
June, 1994 as provided below, Tenant covenants and agrees to pay Landlord,
without demand, at Landlord's office or such other place as Landlord may from
time to time designate, as rent for the Leased Premises, Twenty six thousand
four hundred and thirty dollars and forty eight cents ($26,430.48) per month
until the Leased Premises increase in size as provided in paragraph 4.
Tenant has paid to Landlord Twenty three thousand three hundred and sixty
dollars and fifty three cents ($23,360.53) constituting the full payment for
June.
3. Upon the expiration of the term of the Lease, and provided that the
Tenant is not in default under the terms of the Lease, Tenant may, at its
option, continue Lease for another 1 year period. Tenant shall give Landlord
written notice no less than (3) months prior to the 31st day of May, 1995 of its
intention to renew. If no written notice is received, the Lease will be
extended on a month to month basis as provided for Section 29 of the Lease.
4. Landlord will attempt to make available area 4 (5,676 sq. ft. more or
less) as soon as possible and upon giving Tenant notice the area is available,
rent will begin on the first of the month following such notice of availability
at the rent rate of One thousand one hundred and fifty four dollars and twelve
cents ($1,154.12). This area will then become part of the Leased Premises
described in the Lease and the First, Second and Third Amendments. Tenant will
also give up forty parking spaces along Oak Street to be used by ▇▇▇▇▇▇▇▇
Corporation. Parking area given up by ▇▇▇▇▇▇ will be immediately replaced as
required in the area directly to the west of Tenant's main lot.
5. In all other respects the Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the Landlord and Tenant have hereunto set their hands
to duplicates hereof as of the day and year first written above.
WITNESSED BY: R & R PROPERTIES, LANDLORD
/s/ ▇▇▇▇▇▇▇ By:
-------------------------------- ----------------------------
--------------------------------
▇▇▇▇▇▇ HEALTH PRODUCTS INC., TENANT
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------- -----------------------------
FIFTH AMENDMENT OF LEASE
This fifth Amendment to Lease dated this 20th day of May, 1996, by
and between R&R PROPERTIES, an Ohio Partnership ("Landlord"), whose address
is ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇ HEALTH PRODUCTS INC.,
("Tenant"), a Delaware Corporation, whose address is ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS, Landlord and Tenant entered into a Lease dated March 12,
1984, as amended by the First Amendment to Lease dated August 1, 1986, the
Second Amendment to Lease dated June 19, 1989, the Third Amendment to Lease
dated August 3rd, 1992, and the Fourth Amendment to Lease dated August 2nd,
1994, (collectively the "LEASE"); and
WHEREAS, the Lease is still in full force and effect,
NOW THEREFORE, Landlord and Tenant agree to amend the Lease as
follows:
1. Effective the 1st day of June, 1996, the Lease term shall be the
period commencing the first day of June, 1996 and ending the 31st day of May,
1999.
2. Effective as of the 1st day of June, 1996, Tenant covenants and
agrees to pay to Landlord, without demand, at Landlord's office or such other
place as Landlord may from time to time designate, as rent for the premises,
Twenty seven thousand five hundred and eighty four dollars and sixty cents
($27,584.60) per month.
3. Upon the expiration of the term of the Lease, and provided that
the Tenant is not both in default and past the expiration of any applicable cure
periods under the terms of this Lease, Tenant may, at its option, continue Lease
for another 3 year period. If Tenant continues to occupy the Premises as of
January 1st, 1999, and no notice of intent to vacate has been received by
Landlord, the Lease shall be extended automatically for another 3 year term.
4. During the original term as stated above, either Tenant or
Landlord may terminate the Lease by giving the other one years written notice of
its intention to do so. If such notice is given, there will be no "holding
over" except as agreed and at whatever rate the participants hereto agree upon
at the time. If Landlord receives such notice of intent to vacate, Landlord
shall not disclose such information to the employees of Tenant or the community
for a period of 90 days or until Tenant has advised employees of its intent,
whichever happens first.
5. In all other respects the Lease shall remain in full force and
effect.
IN WITNESS WHEREOF, the Landlord and Tenant have hereunto set their
hands to duplicate originals hereof as of the day and year first written above.
WITNESSED BY: R & R PROPERTIES, LANDLORD
By:
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▇▇▇▇▇▇ HEALTH PRODUCTS INC. TENANT,
/s/ ▇▇▇▇▇▇ Page, Notary Public By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇
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