LEASE AGREEMENT
Basic Lease Information
Lease Date: JANUARY 1, 2000
Lessor: PTF for Operating Engineers, LLC (Member: BNY Western
Trust Company, as Corporate Co-Trustee for the
Pension Trust Fund for Operating Engineers).
Lessor's Address: 000 Xx Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000
Lessee: MONTEREY PASTA COMPANY, A DELAWARE CORPORATION
Lessee's Address: 0000 XXXXXXX XXXXXX
XXXXXXX, XX 00000
Premises: Approximately 18,000 square feet of warehouse space
and approximately 1,845 square feet of office space
as shown on EXHIBIT A to this Lease
Premises Address: 000 Xx Xxxxxx Xxxx Xxxxx, Xxxxxxx, XX 00000
Building: SPACE 38
Park: Firestone Business Park
Commencement Date: JANUARY 1, 2000
Termination Date: DECEMBER 31, 2004
Option To Extend Term: NONE
Base Rent: YEAR 1: SIX THOUSAND SIX HUNDRED DOLLARS ($6,600)
YEAR 2: SIX THOUSAND SEVEN HUNDRED NINETY-EIGHT
DOLLARS ($6,798)
YEAR 3: SEVEN THOUSAND TWO DOLLARS ($7,002)
YEAR 4: SEVEN THOUSAND TWO HUNDRED TWELVE DOLLARS
($7,212)
YEAR 5: SEVEN THOUSAND FOUR HUNDRED TWENTY-EIGHT
DOLLARS ($7,428)
Security Deposit: SIX THOUSAND SIX HUNDRED DOLLARS ($6,600)
Lessee's Share of Jointly Billed or Metered Utilities: NONE
Permitted Uses: WAREHOUSING AND DISTRIBUTION OF LESSEE'S PRODUCTS AND
ASSOCIATED OFFICE USE.
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: TEN (10)_undesignated parking spaces
Exhibits: Exhibit A - Premises
Exhibit B - Landlord's Work
Exhibit C - Rules and Regulations
Exhibit D - Estoppel Certificate
Addenda: None
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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: 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.
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. In addition to the Base Rent set forth on Page 1, Rent also
includes Lessee's share of Jointly Billed or Metered Utilities as
specified in Paragraph 7 of 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 CERTIFICATION: The pension trusts defined as "Lessor" in this
Lease are governed by, and subject to, regulation under the Employee
Retirement Income Security Act of 1974 ("ERISA"). ERISA prohibits
pension trusts, such as Lessor, from leasing their property to certain
persons defined in ERISA as "parties-in-interest." (See section 3(14)
of ERISA). In order for Lessor to lease the Premises, the Lessee must
not have any of the following relationships with any one or more of the
pension trusts comprising Lessor:
(a) Fiduciary, administrator, officer, trustee or custodian;
(b) Counsel;
(c) Employee;
(d) Service provider;
(e) Contributing employer;
(f) Union, any of whose members are covered by a pension
program of the pension trusts;
(g) Fifty percent (50%) or more owner, directly or indirectly,
of any such employer or union;
(h) Spouse, ancestor, lineal descendant or spouse of
lineal descendant of any of the above;
(i) Corporation, partnership, trust or estate of which fifty
percent (50%) or more is owned or held, directly or indirectly, by any
of the above; or
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(j) Employee, officer, director, individual with powers or
responsibilities similar to those of officers or directors, a ten
percent (10%) or more shareholder, directly or indirectly, or a ten
percent (10%) or more partner or joint venture, directly or indirectly,
of any of the above.
Lessee hereby covenants, warrants and represents that it does not have
any of the above relationships with the Lessor pension trusts, and the
Lessor pension trusts will rely thereon in completing this Lease.
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 water, sewer use and
connection fees, gas, heat, electricity, telephone and utilities billed
or metered separately to Lessee. For utility fees or use charges that
are not billed separately to Lessee, Lessee shall pay the amount which
is attributable to Lessee's use of the Premises as set forth on Page 1
as "Lessee's Share of Jointly Billed or Metered Utilities."
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 ten
percent (10%) 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;
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(d) if such proposed changed use would require the use of
heavy machinery and equipment 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 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, rules, regulations, ordinances, requirements, and
orders, pertaining to the Premises of 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.
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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) All work by Lessee or Lessee's contractor shall be done with
union labor in accordance with all union labor agreements
applicable to the trades being employed.
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 aids 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 as requested by
Lessor 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 active negligence of Lessor or its authorized representatives,
Lessee agrees to save and hold Lessor harmless and indemnify Lessor
from and against all claims, losses,
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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 active 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.
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 waiver.
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.
I7. 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.
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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 on 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 Materials 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
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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 amount 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 obligations 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)(l) 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 generally.
The waiver by Lessor of any breach of any term of this Lease shall not
be deemed a waiver 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 no 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 Holder 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 from its obligation 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.
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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
9
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.S, 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. 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 operations, including materials used,
generated, stores, disposed, and manufactured in the Lessee's business
and (b) the Lessee's compliance with the terms of this paragraph. The
Lessee shall provide the engineer with such information reasonably
requested by the engineer to complete the review. The first such review
may occur prior to or shortly following commencement of the term of
this Lease. Thereafter, such review shall not occur more frequently
than once each year unless cause exists for some other review schedule.
One-
10
half (1/2) of the fees and costs of the engineer 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.
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. GENERAL PROVISIONS:
(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.
11
(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.
33. 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: MONTEREY PASTA COMPANY
By: /S/ By: /S/
------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxxx R. Xxxxx Xxxxxx
Its: Chief Financial Officer Its: Chief Executive Officer
------------------------------- -------------------------------
LESSOR: PTF for Operating Engineers, LLC (Member: BNY Western Trust Company, as
Corporate Co-Trustee for the Pension Trust Fund for Operating
Engineers).
By: McMorgan & Company
Its: Investment Manager
By: /S/
-----------------------------
Xxxxxxx Xxxxxx
Its: Vice President
12
EXHIBIT A
PREMISES
13
EXHIBIT B
LANDLORD'S WORK
1. LESSEE EXCEPTS PREMISES IN "AS IS" CONDITION.
00
XXXXXXX X
XXXXXXXXX XXXXXXXX XXXX
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 and 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 these 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.
15
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.
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.
16
EXHIBIT D
ESTOPPEL CERTIFICATE
LEASE DATED: JANUARY 1, 2000
BETWEEN: PTF for Operating Engineers, LLC (Member: BNY Western Trust Company, as
Corporate Co-Trustee for the Pension Trust Fund for Operating
Engineers). as "Lessor"
AND: MONTEREY PASTA COMPANY, A DELAWARE CORPORATION
as "Lessee", demising premises located and addressed as:
Space: 38
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, consigned, 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 FIVE (5) years commencing JANUARY 1, 2000 "Commencement
Date") and ending DECEMBER 31, 2004. 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:
NONE
5. Rental under the Lease has been paid through JANUARY 31, 2000 and was
payable from the Commencement Date: JANUARY 1, 2000;
6. The Base Rent is $6,600 (SIX THOUSAND SIX HUNDRED DOLLAR) 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;
17
10. That the above described Lease represents the entire agreement between
the parties as to said leasing.
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 provisions 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 2nd day of February , 2000.
______________________________
______________________________
By: /s/ R. Xxxxx Xxxxxx
--------------------------
Its: President and CEO
--------------------------
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Its: CFO
--------------------------
18
EXHIBIT A
[MAP OF FIRESTONE BUSINESS PARK]
