Exhibit 10.21
LEASE AGREEMENT
Basic Lease Information
Lease Date: Xxxxx 00, 0000
Xxxxxx: PTF FOR OPERATING ENGINEERS, LLC, a Delaware
limited liability company
Lessor's Address: 000 Xx Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000
Lessee: XXXXXXXXXXXXXX.XXX, LLC, a California limited
liability company
Lessee's Address: 0 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Premises: Approximately 122,227 square feet of space as
shown on Exhibit A to this Lease and commonly
known as Space 32
Premises Address: 000 Xx Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000
Building: Spaces 31-34
Park or Property: Firestone Business Park
Term: Seven (7) years
Commencement Date: July 1, 2000
Termination Date: June 30, 2007
Option To Extend Term: One five (5) year option
Base Rent: Thirty-Six Thousand Six Hundred Sixty-Eight
Dollars ($36,668.00) (increased as set forth in
Paragraph 4)
Security Deposit: Forty-Three Thousand Seven Hundred Eighty-Three
Dollars ($43,783.00)
Permitted Uses: Warehouse and distribution with ancillary office
and light, non-diesel, water-based manufacturing
Insurance Amount: Bodily injury limit of not less than $1 million
per occurrence. Property damage limit of not less
than $1 million per occurrence.
Parking Spaces: Twenty-Five (25) undesignated parking spaces
Exhibits: Exhibit A - Premises
Exhibit B - Landlord's Work
Exhibit C - Rules and Regulations
Exhibit D - Estoppel Certificate
Exhibit E - First Offer Premises
Addenda: None
LEASE AGREEMENT
DATE: This Lease is made and entered into as of the Lease Date defined on
Page 1. The Basic Lease Information set forth on Page 1 and this
Lease are and shall be construed as a single instrument.
1. PREMISES: Lessor hereby leases to Lessee upon the terms and conditions
contained herein the Premises. Lessee shall have the non-exclusive right
to use common areas of the Park designated by Lessor from time to time for
the use of all tenants of the Park ("Common Areas").
2. TERM:
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(A) INITIAL TERM: The term of this Lease shall commence on the
Commencement Date set forth on Page 1 and shall end on the Termination Date
set forth on Page 1. If Lessor cannot deliver possession of the Premises
on the Commencement Date, Lessor shall not be subject to any liability nor
shall the validity of the Lease be affected; provided the Lease term and
the obligation to pay Rent shall commence on the date possession is
tendered and the Termination Date shall be extended by a period of time
equal to the period computed from the Commencement Date to the date
possession is tendered. In the event that Lessor permits Lessee to occupy
the Premises prior to the Commencement Date, such occupancy shall be
subject to all the provisions of this Lease.
(B) OPTION TO EXTEND TERM: Lessee shall have the option ("Extension
Option") to extend the Lease Term, as to not less then the entire Premises,
for a period (the "Option Period") of five (5) years commencing upon the
date the Lease Term would otherwise expire, upon the same terms and
conditions previously applicable, except for the grant of the Extension
Option, the Landlord's Work provisions set forth in Exhibit B (which shall
no longer be executory) and Rent (which shall be determined as set forth
below.
The Extension Option may be validly exercised only by notice in writing
("Option Notice") received by Landlord not earlier than twelve (12) months,
and not later than nine (9) months, prior to commencement of the Option
Period; provided, however, in the event Lessee is in default of the Lease
at any time from the date of the Option Notice through the date on which
the Option Period commences, then at Lessor's election and upon written
notice by Lessor to Lessee, Lessee's exercise of the Extension Option may
be voided by Lessor and Lessee shall thereafter have no rights hereunder to
extent the Term through the Option Period. If Lessee does not exercise the
Extension Option during the exercise period set forth above in strict
accordance with the provisions hereof, the Extension Option shall forever
terminate and be of no further force or effect.
For purposes hereof, "Fair Market Rental" shall mean the rent payable by a
comparable willing tenant to a willing landlord for like and comparable
space, improved with tenant improvements of like and comparable quality to
those then existing in the Premises and in the Building, and like and
comparable buildings located in the Salinas area and for a term comparable
to the Option Period; provided, however, that in determining Fair Market
Rental, no reduction shall be made for the value of existing improvements
and finishes provided by Lessor or Lessee. Not later than six (6) months
prior to commencement of the Option Period, Lessor shall notify Lessee of
Fair Market Rental as determined in good faith by Lessor ("Lessor's FMR").
For a period of thirty (30) days following Lessee's receipt of Lessor's
notice identifying the Lessor's FMR, Lessor and Lessee hereby agree to
negotiate in good faith whether Lessor's FMR is appropriate for the
Premises for the Option Period, or whether some other rental is appropriate
for the Premises for the Option Period.
If, after the 30-day period described above, Lessor and Lessee have been
unable to agree on the Fair Market Rental, then each party shall make a
separate determination of the Fair Market Rental which shall be submitted
to each other and to arbitration in accordance with the following items (i)
through (vii):
(i) Lessor and Lessee shall each appoint, within ten (10) days of the
expiration of such 30-day period, one arbitrator who shall be profession be
a current real estate broker for commercial office properties in the
immediate vicinity of the Park, and who has been active in such field over
the last five (5) years. The determination of the arbitrators shall be
limited solely to the issue of whether Lessor's or Lessee's submitted Fair
Market Rental is the closest to the actual Market Rent as determined by the
arbitrators, taking into account the requirements set forth above.
(ii) The two (2) arbitrators so appointed shall within five (5) business
days of the date of the appointment of the last appointed arbitrator agree
upon and appoint a third arbitrator who shall be qualified under the same
criteria sets forth hereinabove for qualification of the initial two (2)
arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the
appointment of the third arbitrator reach a decision as to whether the
parties shall use Lessor's or Lessee's submitted Fair Market Rental, and
shall notify Lessor and Lessee thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be
binding upon Lessor and Lessee.
(v) If either Lessor or Lessee fails to appoint an arbitrator within ten
(10) days after the expiration of the 30-day period, the arbitrator
appointed by one of them shall reach a decision, notify Lessor and Lessee
thereof, and such arbitrator's decision shall be binding upon Lessor and
Lessee.
(vi) If the two arbitrators fail to agree upon and appoint a third
arbitrator, or both parties fail to appoint an arbitrator, then the
appointment of the third arbitrator or any arbitrator shall be dismissed
and the matter to be decided shall be forthwith submitted to arbitration
under the provisions of the American Arbitration Association, but subject
to the instruction set forth in this Paragraph 2(b).
(vii) The cost of arbitration shall be paid by Lessor and Lessee equally.
3. RENT: Lessee agrees to pay Lessor, without prior notice or demand, the Base
Rent described on Page 1, payable in advance at Lessor's address shown on Page 1
on the first day of each month throughout the term of the Lease. Base Rent
shall be increased annually on the anniversary date of the Commencement Date as
follows:
PERIOD Monthly Base Rent Amount
----------------------- -----------------------------------
Second Year of Term $37,768.00
Third Year of Term $38,901.00
Fourth Year of Term $40,068.00
Fifth Year of Term $41,270.00
Sixth Year of Term $42,508.00
Seventh Year of Term $43,783.00
In addition to the Base Rent set forth on Page 1, Rent also includes the
monthly Amortized Allowances defined in Exhibit B to this Lease, and the
term "Rent" whenever used herein refers to all these amounts. Upon
execution of this Lease by Lessor and Lessee, Lessee shall pay to Lessor
the Base Rent for the first month of the Lease Term.
4. ERISA
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Lessor is governed by and subject to regulation under the Employee Retirement
Income Security Act of 1974 (ERISA). In accordance with requirements under
ERISA, the Lessee hereby represents and warrants to the Lessor that the Lessee
has been neither a Trustee nor an Affiliate of a Trustee of the Plans that
compose the Lessor with the power to appoint or terminate McMorgan and Company
or otherwise negotiation the terms of the employment agreement with McMorgan and
Company within the past year. An "Affiliate" of a person means:
1. any other person directly or indirectly controlling, controlled by or
under the control with a Trustee, or
2. any corporation, partnership, trust or unincorporated enterprise of
which such person above described is an officer, director, five-percent
or more partner, or employee (but only if employed by the Plan
sponsor), or
3. any director or employee of the person described above who is a highly
compensated employee as defined in Section 4975 (e)(2)(H) of the Internal
Revenue Code, or
4. any director or employee of the person described above who has direct or
indirect authority, responsibility or control regarding the custody,
management or disposition of Plan assets, or
5. a named fiduciary of the Plan, within the meaning of Section 402(a)(2) of
ERISA.
The definition of an Affiliate above is derived from Prohibited
Transaction Class Exemption 84-14, March 13, 1984 (49 FR 9494);
(amended October 10, 1985 (50 FR 41430)).
5. SECURITY DEPOSIT: Upon Lessee's execution of this Lease, Lessee shall
deposit with Lessor as a Security Deposit for the performance by Lessee
of its obligations under this Lease the amount described on Page 1. If
Lessee is in default, Lessor may use the Security Deposit, or any
portion thereof, to cure the default or to compensate Lessor for all
damage sustained by Lessor resulting from Lessee's default. Lessee
shall immediately on demand pay to Lessor a sum equal to the portion of
the Security Deposit so applied so as to maintain the Security Deposit
in the sum initially deposited with Lessor. As soon as practicable
after the termination of this Lease, Lessor shall return the Security
Deposit to Lessee, less such amounts as are reasonably necessary to
remedy Lessee's defaults. Lessor shall not be required to keep the
Security Deposit separate from other funds and, unless otherwise
required by law, Lessee shall not be entitled to interest on the
Security Deposit.
6. LANDLORD'S WORK: Prior to the Commencement Date Lessor shall install the
improvements on the Premises described as "Landlord's Work" in Exhibit
B, which is attached and incorporated herein by this reference, in
accordance with the criteria set forth therein.
7. UTILITIES: Lessee shall pay the cost of all gas, heat, electricity,
telephone and utilities billed or metered separately to Lessee.
8. LATE CHARGES: Lessee acknowledges that late payment by Lessee to
Lessor of Rent, expenses, utility costs or other sums due hereunder,
will cause Lessor to incur costs not contemplated by this Lease and the
exact amount of such costs are extremely difficult and impracticable to
fix. Such costs include, without limitation, processing and accounting
charges, and late charges that may be imposed on Lessor by the terms of
any note secured by any encumbrance against the Premises. Therefore,
if any installment of Rent or other sums due from Lessee is not
received by Lessor when due, Lessee shall pay to Lessor a sum
equal to five percent (5%) of such overdue amount as a late charge.
The parties agree that this late charge represents a fair and reasonable
estimate of the costs that Lessor will incur by reason of late payment
by Lessee. Acceptance of any late charge shall not constitute a
waiver of Lessee's default with respect to the overdue amount, nor
prevent Lessor from exercising any of the other rights and remedies
available to Lessor.
9. USE OF PREMISES: The Premises are to be used for the uses stated on
Page 1 and for no other purposes without Lessor's prior written consent,
which shall not be unreasonably withheld. Lessor may withhold its
consent to any change of use on any commercially reasonable grounds,
including, but not limited to, the following grounds which are hereby
deemed by Lessee to be reasonable:
(a) if the proposed changed use will conflict or be incompatible with
other uses in the Park;
(b) if such proposed changed use would impact the Common Areas or
result in increased requirements for services or utilities furnished
by Lessor;
(c) if such proposed changed use would cause unusual wear and tear
on the Premises or overload or overburden the structure or create undue
vibration;
(d) if such proposed changed use would require the use of heavy
machinery and equipment other than that used by Lessee for its permitted
light manufacturing on or about the Premises;
(e) if such proposed changed use would require the use by Lessee on
the Premises of Hazardous Materials at a level which creates more risk
than the use of Hazardous Materials by Lessee in its business as of the
date of this Lease; or
(f) if such proposed changed use creates inappropriate or dangerous
uses of the Premises.
Lessee shall not do or permit anything to be done in or about the
Premises nor keep or bring anything therein which will in any way
increase the existing rate of or affect any policy of fire or other
insurance upon the Building or any of its contents, or cause a
cancellation of any insurance policy. Lessee shall not do or permit
anything to be done in or about the Premises which will in any way
obstruct or interfere with the rights of other tenants or occupants of
the Building or other buildings in the Park or injure or annoy other
tenants or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purpose, nor shall
Lessee cause, maintain or permit any nuisance in, on or about the
Premises. Lessee shall not damage or deface or otherwise commit or
suffer to be committed any waste in or upon the Premises. Lessee shall
honor the terms of all recorded covenants, conditions and restrictions
relating to the property on which the Premises are located. Lessee shall
honor the rules and regulations attached to and made a part of this Lease
as Exhibit C and any other reasonable regulations of the Lessor related
to parking and the operation of the Park. Lessee shall, at Lessee's
expense, faithfully observe and comply with all Municipal, State and
Federal statutes or rules, regulations, ordinances, requirements, and
orders, pertaining to the Premises or Lessee's use thereof, including
without limitation, all statutes, rules, regulations, ordinances,
requirements, or orders affecting the Premises, the Building or the Park
now in force or which may hereafter be in force; provided, however, that
Lessee shall not be required to make structural changes to the Premises
not related to Lessee's specific use of the Premises unless the
requirement for such changes is imposed as a result of any improvements
or additions made or proposed to be made at Lessee's request.
10. ALTERATIONS AND ADDITIONS: Lessee shall not install any signs,
fixtures or improvements to the Premises without the prior written
consent of Lessor, which consent shall not be unreasonably withheld or
delayed. Lessee shall keep the Premises and the property on which the
Premises are situated free from any liens arising out of any work
performed, materials furnished or obligations incurred by or on behalf
of Lessee. Lessee shall give Lessor ten (10) days' prior written
notice of any improvements by Lessee, together with a statement of the
cost thereof, to give Lessor the opportunity to post and record a
notice of non-responsibility. As a condition to Lessor's consent to
the installation of any fixtures or improvements, Lessor may require
Lessee to post a completion bond for up to 150% of the cost of the
work. Upon termination of this Lease, Lessee shall remove any
improvements made by Lessee and repair any damage caused by the
installation or removal of such signs, fixtures, furniture, furnishings
and improvements and leave the Premises in as good condition as they
were in at the time of the commencement of this Lease, except for
reasonable wear and tear,casualty damage and condemnation.
Any work performed at the Building or on the Premises by Lessee or
Lessee's contractor in connection with improvements shall be subject
to the following additional requirements:
(a) Such work shall not proceed until Lessor has approved (which
approval shall not be unreasonably withheld or delayed) in writing:
(i) Lessee's contractor, (ii) the amount and coverage of public
liability and property damage insurance, with the Lessor named as
an additional insured, carried by Lessee's contractor, (iii)
complete and detailed plans and specifications for such work, and
(iv) a schedule for the work.
(b) All work shall be done in conformity with a valid permit when
required, a copy of which shall be furnished to Lessor before such
work is commenced. In any case, all such work shall be performed in
accordance with all applicable laws. Notwithstanding any failure
by Lessor to object to any such work, Lessor shall have no
responsibility for Lessee's failure to comply with applicable laws.
(c) Lessee understands that all contractors and subcontractors retained
at the Park by Lessor or Lessee to perform construction or tenant
improvement work shall be signatory to the appropriate collective
bargaining agreement(s) with the labor organizations affiliated with
the Building and Construction Trades Department of the AFL-CIO or
with the International Brotherhood of Teamsters.
(d) Lessee agrees to indemnify, defend and hold Lessor harmless for any
work performed, including consequential damages, which is not
performed in accordance with applicable law or the provisions of
this Lease.
11. REPAIRS AND MAINTENANCE: Lessee shall, at Lessee's sole cost and
expense, maintain the Premises and adjacent areas in good, clean and
safe condition and repair to the satisfaction of the Lessor any damage
caused by Lessee or its employees, agents, invitees, licensees or
contractors. Without limiting the generality of the foregoing, Lessee
shall be solely responsible for maintaining and repairing all plumbing,
electrical wiring and equipment lighting and interior walls, and
maintaining the heating, ventilation and air conditioning system
("HVAC") serving the Premises. Lessee shall keep and maintain and
provide Lessor with a copy of a service contract for the maintenance of
the HVAC system.
Except for repairs rendered necessary by the negligence of Lessee, its
agents, customers, employees and invitees, Lessor shall keep in good
repair the structural portions of the roof, foundations and exterior
walls of the Premises (exclusive of glass and exterior doors) and
underground utility and sewer pipes outside the exterior walls of the
Building.
Except for normal maintenance and repair of the items outlined above,
Lessee shall have no right of access to or install any device on the
roof of the Building nor make any penetrations of the roof of the
Building without the express prior written consent of Lessor.
Notwithstanding the provisions of the Lease to the contrary, any costs
incurred by Lessor in providing auxiliary or services or in undertaking
barrier removal efforts as defined in and pursuant to the Americans with
Disabilities Act of 1990 and the regulations promulgated thereunder, as
the same may be amended or supplemented from time to time, or in any
similar federal, state or local law or ordinance which are directly
attributable to or arise primarily from Lessee's use or occupancy of
the Premises or improvements made to the Premises by Lessee shall be
deemed additional rent, and shall be paid in full by Lessee within
thirty (30) days after Lessor gives Lessee written notice that such
cost has been incurred by Lessor.
12. INSURANCE: Lessee shall at all times during the term of this Lease,
and at its sole cost and expense, maintain worker's compensation
insurance with not less than the minimum limits required by law and
"broad form" commercial general liability insurance against liability
for bodily injury and property damage with liability limits as set
forth on Page 1 with such insurance naming Lessor as an additional
insured and including such endorsements as may be required by the
Lessor. In no event shall the limits of said policy or policies be
considered as limiting the liability of Lessee under this Lease.
Lessee shall maintain in full force and effect on all of its personal
property, furniture, furnishings, trade or business fixtures and
equipment on the Premises a policy or policies of fire or extended
coverage insurance. Lessor will not carry insurance on Lessee's
personal property.
All insurance shall be with companies licensed to do business with the
Insurance Commissioner of the State of California rated A:X or better in
Best's Key Rating Guide. Such commercial general liability policy or
policies shall be issued as primary policies and not contributing with or
in excess of coverage that Lessor may carry. A certificate in form XXXXX
27 of such liability insurance shall be delivered to the Lessor prior to
the Commencement Date of this Lease, and annually thereafter over the
term of the Lease, which shall certify that the policy names Lessor as an
additional insured and that the policy shall not be canceled or altered
without thirty (30) days' prior written notice to Lessor.
13. LIMITATION OF LIABILITY AND INDEMNITY: Except for damage resulting from
the sole negligence of Lessor or its authorized representatives, Lessee
agrees to save and hold Lessor harmless and indemnify Lessor from and
against all claims, losses, proceedings, damages, causes of action,
liabilities, costs, or expenses (including attorneys' fees, costs of
court and expenses necessary in the prosecution or defense of any
litigation) by reason of injury to person or property, from whatever
cause, while in or on the Premises, or in any way connected with the
Premises or with the improvements or personal property therein,
including any liability for injury to person or property of Lessee, its
agents or employees or third party persons.
Except for damage resulting from the sole negligence of Lessor or
its authorized representatives, Lessor shall not be liable to Lessee for
any damage to Lessee or Lessee's property, for any injury to or loss of
Lessee's business or for any damage or injury to any person from any
cause.
14. ASSIGNMENT AND SUBLEASING: Lessee shall not assign or transfer this
Lease nor sublet all or any portion of the Premises without the written
consent of Lessor, which shall not be unreasonably withheld. If Lessee
seeks to sublet or assign all or any portion of the Premises, a copy of
the proposed sublease or assignment agreement and all agreements
collateral thereto, shall be delivered to Lessor at least thirty (30)
days prior to the commencement of the sublease or assignment (the
"Proposed Effective Date"). In the event of an assignment or in
the event of a sublease where the sublease (1) by itself or taken
together with prior or other sublease(s) covers or totals, as the case
may be, more than twenty-five percent (25%) of the rentable square feet
of the Premises or (2) is for a term which by itself or taken together
with prior or other subleases is greater than fifty percent (50%) of
the period remaining in the term of this Lease as of the time of the
Proposed Effective Date, then Lessor shall have the right, to be
exercised by giving written notice to Lessee, to recapture the
space described in the sublease or the entire Premises in the event of an
assignment. If such recapture notice is given, it shall serve to
terminate this Lease with respect to the proposed sublease space, or, if
the proposed sublease space covers all the Premises or in the event of
an assignment, it shall serve to terminate the entire Lease, in either
case as of the Proposed Effective Date.
However, no termination of this Lease with respect to part or all of the
Premises shall become effective without the prior written consent, where
necessary, of the holder of each deed of trust encumbering the
Premises or any part thereof. If this Lease is terminated pursuant to
the foregoing with respect to less than the entire Premises, the Rent
shall be adjusted on the basis of the proportion of square feet
originally demised and this Lease as so amended shall continue
thereafter in full force and effect. Each permitted assignee or
sublessee shall assume and be deemed to assume this Lease and shall be
and remain liable jointly and severally with Lessee for payment of Rent
and for the due performance of, and compliance with all the terms,
covenants, conditions and agreements herein contained on Lessee's part
to be performed or complied with, for the term of this Lease. In the
event of any sublease or assignment of all or any portion of the
Premises where the Rent reserved in the sublease or assignment exceeds
the Rent or pro rata portion of the Rent, as the case may be, for such
space reserved in the Lease, Lessee shall pay Lessor monthly, as
additional Rent, at the same time as the monthly installments of Rent
hereunder, one-half (1/2) of the excess of the Rent reserved in the
sublease over the Rent reserved in this Lease applicable to the
sublease space.
Notwithstanding the provisions of this Xxxxxxxxx 00, Xxxxxx may assign
this Lease or sublet the Premises or any portion thereof, without
Lessor's consent and without extending the recapture option of Lessor
contained in this Paragraph 14, to any corporation or partnership which
controls, is controlled by, or is under common control with Lessee, or
to any corporation resulting from a merger or consolidation with
Lessee or to any entity which purchases substantially all of Lessee's
assets provided such entity has at the time of the assignment a net
worth at least equal to the net worth of Lessee as of the Commencement
Date. Lessee shall give Lessor not less than ten (10) business days'
prior written notice of any such assignment or sublease.
15. SUBROGATION: Subject to the approval of their respective insurers,
Lessor and Lessee hereby mutually waive their respective rights of
recovery against each other from loss or damage to any of their property
located on or about the Premises that is caused by or results from
perils covered by property insurance carried by the respective parties,
to the extent of the proceeds of such insurance actually received with
respect to such loss or damage. Each party shall obtain any special
endorsements, if required by their insurer, to evidence compliance
with the aforementioned wavier.
16. AD VALOREM TAXES: Lessee shall pay before delinquent all taxes assessed
against the personal property of the Lessee and all taxes attributable
to any leasehold improvements made by Lessee.
17. SUBORDINATION: Lessee shall, upon request of the Lessor, execute any
instrument necessary or desirable to subordinate this Lease and all its
rights contained hereunder to any and all encumbrances now or hereafter
in force against the Park and the Building.
In the event any proceedings are brought for foreclosure or in the
event of the exercise of the power of sale under any deed of trust made
by Lessor covering the Premises or a deed in lieu of foreclosure
thereunder, Lessee shall attorn to the purchaser upon any such
foreclosure or sale and recognize as the Lessor under this Lease any
such purchaser or such transferee who acquires the Premises by deed in
lieu of foreclosure.
18. RIGHT OF ENTRY: Lessee grants to Lessor or its agents the right to enter
the Premises at all reasonable times for purposes of inspection,
exhibition, repair or alteration. Lessor shall at all times have and
retain a key with which to unlock all the doors in, upon and about the
Premises, excluding Lessee's vaults and safes, and Lessor shall have
the right to use any and all means Lessor deems necessary to enter the
Premises in an emergency. Lessor shall also have the right to place
"for rent" and/or "for sale" signs on the outside of the Premises.
Lessee hereby waives any claim for any of the foregoing arising out of
the negligent acts or omissions of Lessor or its authorized
representatives.
19. ESTOPPEL CERTIFICATE: Lessee shall execute and deliver to Lessor, upon
not less than five (5) days' prior written notice, a statement in the
form attached as Exhibit D certifying that this Lease is unmodified and
in full force and effect (or, if modified, stating the nature of such
modification) and the date to which the Rent and other charges are paid
in advance, if any, and acknowledging that there are not, to Lessee's
knowledge, any uncured defaults on the part of Lessor hereunder or
specifying such defaults as are claimed. Any such statement may be
conclusively relied upon by any prospective purchaser or
encumbrancer of the Premises. Lessee's failure to deliver such
statement within such time shall be conclusive upon the Lessee that (1)
this Lease is in full force and effect, without modification except as
may be represented by Lessor; (2) there are no uncured defaults in the
Lessor's performance; and (3) not more than one month's rent has been
paid in advance.
20. LESSEE'S DEFAULT: The occurrence of any one or more of the following
events shall constitute a default and breach of this Lease by Lessee:
(a) The vacation or abandonment of the Premises by the Lessee.
(b) The failure by Lessee to make any payment of Rent or any other
payment required hereunder within five (5) days of the date said
payment is due.
(c) The failure of Lessee to observe, perform or comply with any of the
conditions or provisions of this Lease for a period, unless
otherwise noted herein, of ten (10) days after written notice.
(d) The Lessee becoming the subject of any bankruptcy (including
reorganization or arrangement proceedings pursuant to any
bankruptcy act) or insolvency proceeding whether voluntary or
involuntary.
(e) The Lessee using or storing Hazardous Material on the Premises
other than as permitted by the provisions of Paragraph 29 below,
or the release of any hazardous substance, or failure to notify
Lessor or appropriate federal, state, or local agencies of any
such release.
(f) The Lessee entering any of the relationships listed in Paragraph 4
above (ERISA Certification) with the Pension Trust Fund comprising
the Lessor.
21. REMEDIES FOR LESSEE'S DEFAULT: In the event of Lessee's default or
breach of the Lease, Lessor may terminate Lessee's right to possession
of the Premises by any lawful means, in which case this Lease shall
terminate and Lessee shall immediately surrender possession of the
Premises to Lessor. In addition, the Lessor shall have the immediate
right of re-entry, and if this right of re-entry is exercised following
abandonment of the Premises by Lessee, Lessor may consider any personal
property belonging to Lessee and left on the Premises to also have been
abandoned.
If Lessee breaches this Lease and abandons the Premises before the end of
the term, or if Lessee's right to possession is terminated by Lessor
because of a breach of the Lease, then in either such case, Lessor may
recover from Lessee all damages suffered by Lessor as a result of
Lessee's failure to perform its obligations hereunder, including, but
not restricted to, the worth at the time of the award (computed in
accordance with paragraph (3) of the subdivision (a) of Section 1951.2
of the California Civil Code) of the amounts by which the Rent then
unpaid hereunder for the balance of the Lease term exceeds the amount
of such loss of Rent for the same period which the Lessee proves could
be reasonably avoided by Lessor and in such case, Lessor, prior to the
award, may relet the Premises for the purpose of mitigating damages
suffered by Lessor because of Lessee's failure to perform its
obligation hereunder; provided, however, that even though Lessee has
abandoned the Premises following such breach, this Lease shall
nevertheless continue in full force and effect for as long as the
Lessor does not terminate Lessee's right of possession, and until such
termination, Lessor may enforce all its rights and remedies under this
Lease, including the right to recover the Rent from Lessee as it becomes
due hereunder. The "worth at the time of the award" within the meaning
of Subparagraphs (a)(1) and (a)(2) of Section 1951.2 of the California
Civil Code shall be computed by allowing interest at the rate of ten
percent (10%) per annum.
The foregoing remedies are not exclusive; they are cumulative in addition
to any remedies now or later allowed by law or to any equitable remedies
Lessor may have, and to any remedies Lessor may have under bankruptcy
laws or laws affecting creditor's rights.
The wavier by Lessor of any breach of any term of this Lease shall not be
deemed a wavier of such term or of any subsequent breach thereof.
22. HOLDING OVER: If Lessee holds possession of the Premises after the
term of this Lease with Lessor's consent, Lessee shall become a tenant
from month to month upon the terms specified at a monthly Rent of 150%
of the Base Rent due on the last month of the Lease term, payable in
advance on or before the first day of each month. All other sums due
as Rent hereunder shall be paid by Lessee and all other provisions of
this Lease shall remain in effect. All options, if any, granted under
the terms of this Lease shall be deemed terminated and be of not
effect during said month-to-month tenancy. Lessee shall continue in
possession until such tenancy shall be terminated by either Lessor or
Lessee giving written notice of termination to the other party at least
thirty (30) days prior to the effective date of termination.
23. Lessor's Default: Lessee agrees to give holder of a deed of trust
encumbering the Premises ("Trust Deed Holders"), by certified mail, a
copy of any notice of default served upon the Lessor by Lessee,
provided that prior to such notice Lessee has been notified in writing
(by way of Notice of Assignment of Rents and Leases, or otherwise) of
the address of such Trust Deed Holder. Lessee further agrees that if
Lessor shall have failed to cure such default within the time, if any,
provided for in this Lease, then the Trust Deed Holders shall have an
additional thirty (30) days within which to cure such default or
if such default cannot be cured within that time, then such additional
time as may be necessary, if within such thirty (30) days, the Trust
Deed Holders has commenced and is diligently pursuing the remedies
necessary to cure such default (including, but not limited to,
commencement of foreclosure proceedings, if necessary, to effect such
cure), in which event this Lease shall not be terminated while such
remedies are being so diligently pursued.
24. PARKING: Lessee shall have the use of the number of undesignated parking
spaces set forth on Page 1. Lessor shall exercise its best efforts to
insure that such spaces are available to Lessee for its use, but Lessor
shall not be required to enforce Lessee's right to use the same.
25. SALE OF PREMISES: In the event of any sale of the Premises by Lessor,
Lessor shall be and is hereby released form its obligations to perform
under this Lease and the purchaser at such sale or any subsequent sale
of the Premises shall be deemed, without any further agreement between
the parties or their successors in interest or between the parties and
any such purchaser, to have assumed and agreed to carry out any and all
of the covenants and obligations of the Lessor under this Lease.
26. WAIVER: No delay or omission in the exercise of any right or remedy of
Lessor or any default by Lessee shall impair such a right of remedy or be
construed as a waiver.
The subsequent acceptance of Rent by Lessor after breach by Lessee of any
covenant or term of this Lease shall not be deemed a waiver of such
breach, and shall not prevent Lessor from maintaining an unlawful
detainer or other action based on such breach.
No payment by Lessee or receipt by Lessor of a lesser amount than the
monthly Rent and other sums due hereunder shall be deemed to be other
than on account of the earliest Rent or other sums due, nor shall any
endorsement or statement on any check or accompanying any check or
payment be deemed an accord and satisfaction and Lessor may accept such
check or payment without prejudice to Lessor's right to recover the
balance of such Rent or other sum or pursue any other remedy provided
in this Lease.
27. CASUALTY DAMAGE: If the Premises or any part thereof shall be damaged by
fire or other casualty, Lessee shall give prompt written notice thereof
to Lessor. In case the Building shall be so damaged by fire or other
casualty that substantial alteration or reconstruction of the Building
shall, in Lessor's reasonable opinion, be required (whether or not the
Premises shall have been damaged by such fire or other casualty), Lessor
may, at its option, terminate this Lease by notifying Lessee in writing
of such termination within sixty (60) days after the date of such damage,
in which event the Rent shall be abated as of the date of such damage. If
Lessor does not elect to terminate this Lease, Lessor shall within ninety
(90) days after the date of such damage commence to repair and restore
the Building and shall proceed with reasonable diligence to restore the
Building (except that Lessor shall not be responsible for delays outside
its control) to substantially the same condition in which it was
immediately prior to the happening of the casualty, except that Lessor
shall not be required to rebuild, repair, or replace any part of Lessee's
furniture, furnishings or fixtures and equipment removable by Lessee or
any improvements installed by Lessee under the provisions of this Lease.
Lessor shall not in any event be required to spend for such work an
amount in excess of the insurance proceeds actually received by Lessor as
a result of the fire, or other casualty. Lessor shall not be liable for
any inconvenience or annoyance to Lessee, injury to the business of
Lessee, loss of use of any part of the Premises or the Lessee's personal
property resulting in any way from such damage or the repair thereof,
except that, subject to the provisions of the next sentence, Lessor shall
allow Lessee a fair diminution of Rent during the time and to the extent
the Premises are unfit for occupancy. If the Premises or any other
portion of the Building be damaged by fire or other casualty resulting
from the fault or negligence of Lessee or any of Lessee's agents,
employees or invitees, the Rent shall not be diminished during the repair
of such damage and Lessee shall be liable to Lessor for the cost and
expense of the repair and restoration of the Building caused thereby to
the extent such cost and expense of the repair and restoration of the
Building caused thereby is not covered by insurance proceeds.
Except as otherwise provided in this Xxxxxxxxx 00, Xxxxxx hereby waives
the provisions of Sections 1932(2), 1933(4), 1941 and 1942 of the
California Civil Code.
28. CONDEMNATION: If twenty-five percent (25%) or more of the Premises is
taken for any public or quasi-public purpose of any lawful governmental
power or authority or sold to a governmental entity to prevent such
taking, the Lessee or the Lessor may terminate this Lease as of the
date when physical possession of the Premises is taken by the taking
authority. Lessee shall not because of such taking assert any claim
against the Lessor or the taking authority for any compensation because
of such taking, and Lessor shall be entitled to receive the entire
amount of any award without deduction for any estate of interest or
interest of Lessee. If a substantial portion of the Building or the
Park is so taken, Lessor at its option may terminate this Lease. If
Lessor does not elect to terminate this Lease, Lessor shall, if
necessary, promptly proceed to restore the Premises or the Building to
substantially its same condition prior to such partial taking, allowing
for the reasonable effects of such taking, and a proportionate
allowance shall be made to Lessee for the Rent corresponding to the
time during which, and to the part of the Premises of which, Lessee is
deprived on account of such taking and restoration. Lessor shall not be
required to spend funds for restoration in excess of the amount received
by Lessor as compensation awarded.
29. HAZARDOUS MATERIALS. The Lessee, at its sole cost and expense, shall
comply with all laws, ordinances, regulations, and standards regulating
or controlling hazardous wastes or hazardous substances, including,
without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended, 42 U.S.C. 9601, et
seq., the Hazardous Material Transportation Act, 49 U.S.C. 1801, et
seq., the Resource Conservation and Recovery Act, 42 U.S.C. 6901, et
seq., the Xxxxxxxxx-Xxxxxxx-Xxxxxx Hazardous Substance Account Act,
Health and Safety Code section 25300, et seq., the Underground Storage
of Hazardous Substance Act, Health and Safety section 25280, et seq.,
the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health and
Safety Code section 25249.5, et seq., and the Hazardous Waste Control
Law, Health and Safety Code section 25100, et seq. (collectively, the
"Environmental Laws"). The Lessee hereby indemnifies and at all times
shall indemnify and hold harmless the Lessor, the Lessor's trustees,
directors, officers, employees, investment manager(s), attorneys,
agents, and any successors to the Lessor's interest in the chain of
title to the Property, their trustees, directors, officers, employees,
and agents from and against any and all claims, suits, demands,
response costs, contribution costs, liabilities, losses, or damages,
directly or indirectly arising out of the existence, use, generation,
migration, storage, transportation, release, threatened release, or
disposal of Hazardous Materials (defined below) in, on, or under the
Property or in the groundwater under the Property and the migration or
transportation of Hazardous Materials to or from the Property or the
groundwater underlying the Property. This indemnity extends to the
costs incurred by the Lessor or its successors to reasonably repair,
clean up, dispose of, or remove such Hazardous Materials in order to
comply with the Environmental Laws, provided the Lessor gives the
Lessee not less than thirty (30) days' advance written notice of its
intention to incur such costs. The Lessee's obligations pursuant to the
foregoing indemnification and hold harmless agreement shall survive the
termination of this Lease. The subtenants, contractors, agents, or
invitees of the Lessee shall not use, generate, manufacture, store,
transport, release, threaten release, or dispose of Hazardous Materials
in, on, or about the Park unless the Lessee shall have received the
Lessor's prior written consent therefore, which the Lessor may withhold
or revoke at any time in its reasonable discretion, and shall not cause
or permit the release or disposal of Hazardous Materials from the Park
except in compliance with applicable Environmental Laws. The Lessee
shall not permit any person, including its subtenants, contractors,
agents, or invitees to use, generate, manufacture, store, transport,
release, threaten release, or dispose of Hazardous Materials in, on, or
about the Park or transport Hazardous Materials from the Park unless
the Lessee shall have received the Lessor's prior written consent
therefore, which the Lessor may hold or revoke at any time in its
reasonable discretion and shall not cause or permit the release or
disposal of Hazardous Materials. The Lessee shall promptly deliver
written notice to the Lessor if it obtains knowledge sufficient to infer
that Hazardous Materials are located on the Park that are not in
compliance with applicable Environmental Laws or if any third party,
including without limitation, a governmental agency, claims a
significant disposal of Hazardous Materials occurred in the Park or is
being or has been released from the Park, or any such party gives
notice of its intention to declare the Park to be Border Zone Property
(as defined in section 25117.4 of the California Health and Safety
Code). Upon reasonable written request of the Lessor, the Lessee,
through its professional engineers and at its cost, shall thoroughly
investigate suspected Hazardous Materials contamination of the Park.
The Lessee, using duly licensed and insured contractors, shall promptly
commence and diligently complete the removal, repair, clean-up, and
detoxification of any Hazardous Materials from the Park as may be
required by applicable Environmental Laws.
Notwithstanding anything to the contrary in this Lease, nothing herein
shall prevent the Lessee from using materials other than Hazardous
Materials on the Premises as would be used in the ordinary course of the
Lessee's business as contemplated by this Lease. The Lessee does not in
the course of the Lessee's current business use Hazardous Materials. If
during the term of this Lease, the Lessee contemplates utilizing such
materials (or subleases/assigns this Lease to a subtenant or assignee who
utilizes Hazardous Materials), the Lessee shall obtain prior written
approval from the Lessor, which approval shall not be unreasonably
withheld. In connection with such requested approval, the Lessor, at its
option, and at the Lessee's expense, may cause an engineer selected by
the Lessor, to review (a) the Lessee's proposed operations, including
materials to be used, generated, stored, disposed, and manufactured in
the Lessee's business and (b) the Lessee's compliance with terms of
this paragraph. The Lessee shall provide the engineer with such
information reasonably requested by the engineer to complete the review.
Thereafter, Lessor may undertake additional reviews, but such reviews
shall not occur more frequently than once each year unless cause exists
for some other review schedule. One-half (1/2) of the fees and costs
of the engineer for such subsequent reviews shall be paid promptly by
the Lessee to the Lessor upon receipt of written notice of such fees
and costs.
"Hazardous Materials" means any hazardous waste or hazardous substance as
defined in any federal, state, county, municipal, or local statute,
ordinance, rule, or regulation applicable to the Property, including,
without limitation, the Environmental Laws. "Hazardous Materials" shall
also include asbestos or asbestos-containing materials, radon gas,
petroleum or petroleum fractions, urea formaldehyde foam insulation,
transformers containing levels of polychlorinated biphenyls greater
than 50 parts per million, and chemicals known to cause cancer or
reproductive toxicity, whether or not defined as a hazardous waste or
hazardous substance in any such statute, ordinance, rule or regulation.
30. FINANCIAL STATEMENTS: Within ten (10) days after Lessor's request,
Lessee shall deliver to Lessor the then current audited financial
statements of Lessee (including interim periods following the end of
the last fiscal year for which annual statements are available) which
statements shall be prepared or compiled by a certified public
accountant and shall present fairly the financial condition of Lessee
at such dates and the result of its operations and changes in its
financial positions for the periods ended on such dates. Any financial
statements provided by Lessee to Lessor shall be treated as confidential
by Lessor, however, Lessor may submit Lessee's financial statements to
any prospective purchaser of the Park or any prospective lender.
31. REPRESENTATIONS AND WARRANTIES OF LESSEE: If Lessee is a partnership,
corporation or limited liability company, Lessee hereby makes the
following representations and warranties, each of which is material and
being relied upon by Lessor, is true in all respects as of the date of
this Lease, and shall survive the expiration or termination of the Lease.
(a) Lessee is duly organized, validly existing and in good standing
under the laws of the state of its organization and the persons executing
this Lease on behalf of Lessee have the full right and authority to
execute this Lease on behalf of Lessee and to bind Lessee without the
consent or approval of any other person or entity. Lessee has full
power, capacity, authority and legal right to execute and deliver this
Lease and to perform all of its obligations hereunder. This Lease is a
legal, valid and binding obligation of Lessee, enforceable in
accordance with its terms.
(b) Lessee has not (1) made a general assignment for the benefit of
creditors, (2) filed any voluntary petition in bankruptcy or suffered the
filing of an involuntary petition by any creditors, (3) suffered the
appointment of a receiver to take possession of all or substantially all
of its assets, (4) suffered the attachment or other judicial seizure of
all or substantially all of its assets, (5) admitted in writing its
inability to pay its debts as they come due, or (6) made an offer of
settlement, extension or composition to its creditors generally.
32. RIGHT OF FIRST OFFER: Provided Lessee is not in Default under the Lease,
Lessor agrees that in the event the premises immediately adjacent to the
Premises, which premises are depicted as the "Right of First Offer
Premises" in Exhibit E, which is attached to this Lease ("Right of First
Offer Premises"), becomes available for re-letting to third parties after
the expiration of the Lease of the existing tenants of the First Offer
Premises and as long as the existing tenant elects to vacate the Right of
First Offer Premises, Lessor shall notify Lessee in writing of the
availability of the Right of First Offer Premises and the anticipated
date on which the Right of First Offer Premises will be vacated by the
then existing tenant. For a period of ten (10) days following receipt of
Lessor's written notice containing the above specified information,
Lessee shall have a one-time right of first offer ("Right of First
Offer") to lease the Right of First Offer Premises at the same rental
rate per square foot and upon all such other terms and conditions as set
forth in this Lease. Lessee shall exercise the Right of First Offer as
set forth in this paragraph by giving Lessor written notice of its
exercise within the above specified (10) day period. If Lessee fails to
timely exercise the Right of First Offer set forth in this paragraph,
then the Right of First Offer shall expire and be of no further force or
effect and thereafter Lessor shall be entitled to place the Right of
First Offer Premises on the open market for lease by third parties. This
paragraph shall not apply if the existing tenant of the Right of First
Offer Premises has exercised a right to extend, renew or renegotiate the
terms of its lease for the Right of First Offer Premises.
If Lessee exercises its Right of First Offer as set forth in this
Paragraph 32, Lessor and Lessee shall execute an amendment to this Lease
("Amendment") adjusting the Base Rent to reflect the addition of the
Right of First Offer Premises to the Premises and increasing the amount
of the Security Deposit by an amount which equals the highest monthly
Base Rent attributable to the Right of First Offer Premises during the
remainder of the Term. The provisions of Exhibit B shall not be
applicable to the Right of First Offer Premises. Lessor shall have no
obligation to make any improvements to the Right of First Offer
Premises. Notwithstanding the exercise by Lessee of the Right of First
Offer, in the event that Lessee is in Default of the Lease at any time
from the date it exercises the Right of First Offer through the date on
which Lessee's lease of the Right of First Offer Premises commences
under the Amendment, then at Lessor's election and upon written notice
by Lessor to Lessee, Lessee's exercise of the Right of First Offer may
be voided by Lessor.
33. QUIET ENJOYMENT: Lessor covenants that Lessee, upon performing the
terms, conditions and covenants of this Lease, shall have quiet and
peaceful possession of the Premises as against any person claiming the
same by, through or under Lessor.
34. GENERAL PROVISION:
-----------------
(a) TIME. Time is of the essence in this Lease and with respect to
each and all of its provisions in which performance is a factor.
(b) SUCCESSORS AND ASSIGNS. The covenants and conditions herein
contained, subject to the provisions as to assignment, apply to and
bind the heirs, successors, executors, administrators and assigns of
the parties hereto.
(c) RECORDATION. Lessee shall not record this Lease or a short form
memorandum hereof without prior written consent of the Lessor.
(d) LESSOR'S PERSONAL LIABILITY. The liability of Lessor (which, for
purposes of this Lease, shall include Lessor and the owner of the
Building if other than the Lessor) to Lessee for any default by Lessor
under the terms of this Lease shall be limited to the actual interest
of Lessor and its present or future partners in the Building and Lessee
agrees to look solely to Lessor's or Lessor's present or future
partners' actual interest in the Building for the recovery of any
judgment against Lessor, it being intended that Lessor shall not be
personally liable for any judgment or deficiency. The liability of
Lessor under this Lease is limited to its actual period of ownership of
title to the Building, and Lessor shall be released from liability upon
transfer of title to the Building.
(e) SEPARABILITY. Any provisions of this Lease which shall prove to
be invalid, void or illegal shall in no way affect, impair or
invalidate any other provisions hereof and such other provision shall
remain in full force and effect.
(f) CHOICE OF LAW. This Lease shall be governed by the laws of the
State of California.
(g) ATTORNEYS' FEES. In the event any legal action is brought to
enforce or interpret the provisions of this Lease, the prevailing party
therein shall be entitled to recover all costs and expenses including
reasonable attorneys' fees.
(h) ENTIRE AGREEMENT. This Lease supersedes any prior agreements and
contains the entire agreement of the parties on matters covered. No
other agreement, statement or promise made by any party that is not in
writing and signed by all parties to this Lease shall be binding. This
Lease shall not be construed to create any form of partnership or joint
venture between Lessor and Lessee.
(i) WARRANTY OF AUTHORITY. Each person executing this agreement on
behalf of a party represents and warrants that (1) such person is duly
and validly authorized to do so on behalf of the entity it purports to
so bind, and (2) if such party is a partnership, corporation or trustee,
that such partnership, corporation or trustee has full right and
authority to enter into this Lease and perform all of its obligations
hereunder.
(j) NOTICES. All notices and demands required or permitted to be
sent to the Lessor or Lessee shall be in writing and shall be sent by
United States mail, postage prepaid, certified or by personal delivery
or by overnight courier, addressed to Lessor at Firestone Business Park,
000 Xx Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx 00000, or to Lessee at
the address listed on Page 1 prior to the Commencement Date and
following the Commencement Date at the Premises, or to such other place
as such party may designate in a notice to the other party given as
provided herein. Notice shall be deemed given upon the earlier of
actual receipt or the third day following deposit in the United States
mail.
(k) INTERLINEATION. The use of underlining or strikeouts within the
Lease is for reference purposes only. No other meaning or emphasis is
intended by this use, nor should any be inferred.
35. BLANKET ENCUMBRANCE: Lessee is aware of the fact that the lot on which
the Premises are located may be subject to a deed of trust, mortgage,
or other lien known as a "Blanket Encumbrance." According to
California law, Lessee could lose its interest through foreclosure of
the Blanket Encumbrance or other legal process even though Lessee is
not delinquent in Lessee's payments or other obligations under the Lease.
IN WITNESS WHEREOF, this Lease is executed on the date and year first
written above.
LESSEE: XXXXXXXXXXXXXX.XXX, LLC,
A California limited liability company
By: /s/ Xxxxx Xxxxxxxx
______________________________
Its: VP-OPERATIONS
_____________________________
By: /s/ Xxxxxxx Xxxxx
_____________________________
Its: VP-FINANCE
_____________________________
LESSOR: PTF FOR OPERATING ENGINEERS, LLC,
A Delaware limited liability company
By: McMorgan & Company
Its: Investment Manager
By: Xxxxxxx Xxxxxx
_______________________
Xxxxxxx Xxxxxx
Its: Vice President
EXHIBIT B
LANDLORD'S WORK
Lessor shall make the following improvements to the Premises ("Landlord's
Work"):
1. Add two (2) grade doors:
2. Replace warehouse lighting with metal halide HID lights;
3. Remove paint lines from floor;
4. Construct two (2) ADA compliant restrooms;
5. Construct a 30 ft. by 40 ft. employee break room;
6. Upgrade fire sprinklers to a room density of .30 gallon/2,000 sq. ft.; and
7. Install hose drops, alarms, strobes, etc. per Xxxx Xxxxx drawing.
The Landlord's Work shall be in accordance with mutually accepted plans and
specifications (the "Plans") which shall be approved by Lessor and Lessee on or
before the date which is two (2) weeks following full execution of this Lease by
lessor and Lessee ("Plan Approval Date"). If Lessor and Lessee do not agree
upon the Plans on or before the Plan Approval Date, either Lessor or Lessee may
terminate this lease by giving written notice of termination to the other. The
Landlord's Work shall be substantially completed prior to delivery of the
Premises to Lessee by Lessor.
Lessor shall provide an allowance for the planning and construction of the
Landlord's Work (including design, engineering, permit and total construction
costs), in the amount four Hundred Eighty-Five Thousand Dollars ($485,000.00)
("Improvements Allowance"). The Improvements Allowance shall be the maximum
contribution by Lessor for the Landlord's Work. Landlord's Work shall include
only those improvements within the interior portions of the Premises approved by
Lessor. Landlord's Work shall specifically not include any alterations,
additions, or improvements installed or constructed by Lessee and any of
Lessee's personal property or trade fixtures. After the Plans have been
approved by the parties, Lessor shall notify Lessee of the estimated cost of the
Landlord's Work ("Estimated Cost"). If the Estimated Cost exceeds the
Improvements Allowance, Lessee may either eliminate work from the requested
Improvements Allowance or pay to Lessor the amount in excess of the Improvements
Allowance with ten (10) days of receipt by Lessee of Lessor's notice of
Estimated Cost. If the Estimated Cost does not exceed the Improvements
Allowance or if the Estimated Cost does exceed the Improvements Allowance, but
Lessee pays to Lessor the amount in excess of the Improvements Allowance, Lessor
shall commence construction of the Landlord's Work and diligently proceed to
complete same. All amounts of the Improvements Allowance in excess of the
amount of One Hundred Eighty-Five Thousand Dollars ($185,000.00) expended by
Lessor in the construction of the Landlord's Work up to the total amount of the
Improvements Allowance shall be paid to Lessor by Lessee by amortizing such
amount (the "Amortized Allowance") over the seven (7) years of the Initial Term
with interest thereon at the rate of ten percent (10%) per annum on the unpaid
amounts and paid by Lessee along with the monthly Base Rent as additional rent
every month during the seven (7) years of the Initial Term.
EXHIBIT C
FIRESTONE BUSINESS PARK
RULES AND REGULATIONS
PURPOSE:
In a business park setting, it is imperative that certain activities be
prohibited because they represent a threat to good order ad discipline
which directly impact on the health, safety or welfare of our lives. These
Rules and Regulations are for the mutual benefit and protection of all
current and future lessees with Firestone Business Park. Accordingly, each
lessee agrees to accept the Rules and Regulations.
Furthermore, Firestone Business Park will enforce these provisions
according to its business judgment in its sole discretion. It is agreed
and understood that Firestone Business Park shall not be subject to any
claim of any kind for damages or losses suffered as a result of a breach of
these Rules and Regulations by another party, or the alleged failure of the
Firestone Business Park to enforce the provisions of these Rules and
Regulations.
EFFECTIVE DATE:
These Rules and Regulations are effective as of January 15, 1992 and hereby
supersede all previous Rules and Regulations.
CONTROLLED SUBSTANCES:
It is strictly forbidden to enter the Firestone Business Park under the
influence of any controlled substance, or to transport, carry, consume or
use any intoxicants, narcotics, stimulants, depressants or hallucinogens.
The giving, selling or delivering of any controlled substance to any other
person on the premises or trafficking for the sale or delivery of such
items is forbidden and is illegal. Ethical pharmaceutical drugs on a
doctor's prescription and over-the-counter drugs are allowed.
SPEED LIMITS:
A 25 MPH speed limit is in effect for safety reasons, and it will be
strictly enforced. Flagrant abusers of the speed limit or repeat violators
will be prohibited from driving in the Firestone Business Park. This
prohibition extends to both employees and to trucking or transportation
companies servicing your business.
PARKING:
All parking shall be in designated parking areas only. Illegally parked
vehicles, improperly parked vehicles taking two or more spaces, or those
parked in undesignated areas will be removed at the expense of the lessee.
VEHICULAR STORAGE:
Due to insurance liability limitations, there shall be no storage of vans,
cars, trucks, trailers, boats or other vehicles of any sort outside of the
lessee's leased space.
OUTSIDE STORAGE:
There shall be no outside storage of wares, goods, materials, containers,
boxes or pallets. Such material is a fire hazard that threatens safety and
is absolutely prohibited.
LOADING AND STAGING:
All loading and unloading must be conducted entirely at the lessee's
loading docks or interior lease space. Staging is the term applied to the
preparation, presentation or stacking of merchandise for shipping in a
convenient, ready-to-load location. All staging of materials must be
accomplished within each lessee's space.
2
REFUSE AND TRASH:
Each lessee is responsible for the safe storage and removal of trash and
refuse generated by its respective business. Trash containers shall not be
allowed to overflow and, in wind conditions, trash containers must be
tarped to prevent the blowing of trash around the Firestone Business Park
and into other leased spaces.
VEHICULAR MAINTENANCE AND REPAIR:
There shall be no maintenance or repairs performed on any automobile,
truck, cab, van trailer or other vehicle, whether it is parked on concrete,
asphalt, blacktop, dirt or any other surface in Firestone Business Park.
With the exception of such minor repairs or assistance such as jump-
starting dead batteries, all vehicles must be removed from the Firestone
Business Park for servicing. This prohibition also applies to oil changes,
filter changes and lubrication.
POLLUTION AND NUISANCE:
Any type of activity or business application that produces offensive noise,
dirt, smoke, odor or other nuisance is strictly prohibited. This
prohibition extends to the running of gasoline or diesel engines inside
warehousing or other enclosed spaces. Firestone Business Park management
has the sole discretion to determine whether any business activity that
produces noise, dirt, smoke, odor or other nuisances is of a nature that
should be prohibited.
SAFETY AND SECURITY:
The personnel of the Safety and Security Force may not be utilized to halt
shipments, stop trucking or engage in other activities resulting from
internal labor-management disputes. The Safety and Security Force is
authorized to act in the event there has been a criminal act committed and
to provide safety-related services.
ANIMALS:
No animals shall be brought or kept upon the Firestone Business Park,
except seeing eye dogs.
3
EXHIBIT D
---------
ESTOPPEL CERTIFICATE
LEASE DATED:____________________
BETWEEN: PTF FOR OPERATING ENGINEERS, LLC, a Delaware limited liability
company, as "Lessor"
AND XXXXXXXXXXXXXX.XXX, LLC, a California limited liability company, as
"Lessee", demising premises located and addressed as:
Space: 32
000 XX XXXXXX XXXX XXXXX
XXXXXXX, XX 00000
Ladies and Gentlemen:
The undersigned Lessee hereby certifies with respect to the above described
Lease as follows:
1. All space and improvements leased by Lessee pursuant to the Lease have been
completed and furnished in accordance with the provisions of the Lease, and
Lessee has accepted and taken possession of the Premises. All obligations of
Lessor to Lessee with respect to improvements to the Premises have been
performed;
2. Lessor has satisfied all commitments made to induce Lessee to enter into the
Lease, and Lessor is not in any respect in default in the performance by
Lessor of its obligations under the Lease;
3. Lessee is not in any respect in default under the Lease and has not
assigned, cosigned, sublet, transferred or hypothecated its interest or any
part thereof under the Lease;
4. The Lease (including any option or renewal term) is for a total term of
approximately ___ years commencing __________, 200__ (the "Commencement
Date") and ending ______________, 200__. The Lease is in full force and
effect and has not been modified, altered or amended and contains the entire
agreement between Lessor and Lessee except:
(List amendments and modification and date of execution or write "None")
5. Rental under the Lease has been paid through ________, 200__ and was payable
from the Commencement Date: ________________, 200__.
6. The Base Rent is $_________ per month at this time:
7. There are no offsets or credits against Rent payable under the Lease, and
Lessee has made no payment to Lessor as a security deposit or advance or
prepaid rental except: (i) payments expressly provided for in the Lease or
in an amendment or modification to the Lease described above; and (ii)
payments made no earlier than ten (10) days prior to the date upon which
such payments are due;
8. Except as expressly provided in the Lease or in an amendment or modification
to the Lease which is described above, Lessee does not have any right to
renew or extend the term of the Lease nor any option or preferential right
to purchase all or any part of the Premises or all or any part of the
building of which the Premises are a part, nor any right, title or interest
with respect to the Premises other than as Lessee under the Lease;
9. Lessee acknowledges that this certificate is a material inducement to
prospective lenders and/or purchasers to incur financial obligation in
respect hereof, and that such lenders or purchasers will rely upon the
statements contained herein;
10. That the above described Lease represents the entire agreement between the
parties as to said leasing.
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The undersigned hereby agrees:
(a) To disclaim all right, title or interest in said Premises except the rights
granted by said Lease;
(b) To send a copy of any notice or demand given or made to the Lessor pursuant
to the provision of said Lease, by certified mail to the owner and holder
of any first mortgage on the demised Premises, or its assignee upon being
notified in writing of such mortgagee's or assignee's name and address; and
(c) To give to the holder of said mortgage or its assignee the same right as
the Lessor has to cure any default complained of in said notice or demand.
Executed this _____________ day of _______________, 200__.
______________________________
______________________________
By:___________________________
Its:___________________________
By:___________________________
Its:___________________________
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Map of Firestone Business Park goes here.
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