OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (this "Lease") dated for references
purposes only is made between PS BUSINESS PARKS, L.P., a California
Limited Partnership ("Landlord"), and MCR PRINTING AND PACKAGING
CORPORATION, a California Corporation ("Tenant"), as of
_______________, 2006 (the "date of this Lease").
BASIC LEASE INFORMATION
PREMISES: Approximately 1,511 rentable square feet commonly known as
Xxxxx 000, 0000 X. Xxxxxxxxxx Xxx. Xxxxxx, Xxxxxxxxxx, 00000 as
depicted on Exhibit A-1.
BUILDING & PROJECT: Approximately 107,073 rentable square feet located
at 0000-0000 X. Xxxxxxxxxx Xxxxxx, and commonly referred to as the 2100
Building, as depicted on Exhibit A-2. The Building is a part of the
Project commonly referred to as Orangewood Corporate Plaza, as depicted
and more particularly described on Exhibit A-2.
PERMITTED USE: General office use.
TERM: A period of twenty four (24) months and fifteen (15) days.
Subject to Section 1.02, the Term shall commence on April 16, 2006 (the
"Commencement Date") and, unless terminated early in accordance with
this Lease, end on April 30, 2008 (the "Termination Date").
BASE RENT:
Period of Term
Monthly
Base Rent
April 16, 2006 April 30, 2007
$3,022.00/month ($2.00 PSF)
May 1, 2007 April 30, 2008
$3,112.66/month ($2.06 PSF)
BASE YEAR: 2006
SECURITY DEPOSIT: $ 3,112.66
TENANT'S PROPORTIONATE SHARE OF PROJECT: 1.41%
PARKING DENSITY: Four (4) unreserved parking spaces per 1,000 square
feet of the Premises, which spaces shall be in common with other tenants
of the Project.
LANDLORD'S BROKER: Xxxxx & Xxxxx (Xxxx Xxxxxx) TENANT'S BROKER: N/A
TENANT'S SIC CODE: ___________________
ADDRESSES FOR NOTICES:
To: Tenant
MCR Printing and Packaging
0000 X. Xxxxxxxxxx Xxx., Xxxxx 000. Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx
FAX:
To: Landlord
PS Business Parks, L.P.
0000 X. Xxxx Xxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
Attn: Property Manager
FAX: 000-000-0000
TENANT'S BILLING ADDRESS [If different from Notice Address]:
LANDLORD'S REMITTANCE ADDRESS: PS Business Parks, L.P., Orange County
Business Center, Dept.# 2520-08, Xxx Xxxxxxx, XX 00000-0000
BUILDING BUSINESS HOURS: 8am 6pm weekdays, holidays and weekends
excluded.
This Lease consists of the foregoing Basic Lease Information, the
following Lease provisions consisting of Sections 1 through 28 and
Exhibits X-0, X-0, X, X, and D, all of which are incorporated herein by
this reference. Defined terms used in this Lease and included in the
Basic Lease Information shall have the meanings given them in the Basic
Lease Information.
1. Lease of Premises; Compliance with Laws; Surrender.
1.01 Landlord leases to Tenant, and Tenant leases from Landlord,
the Premises, upon the terms of this Lease. The Premises are leased "AS
IS" except only for the improvements, if any, which are to be
constructed by Landlord pursuant to Exhibit B. Tenant acknowledges that
neither Landlord nor any agent of Landlord has made any representation
or warranty regarding the Premises. By taking possession of the
Premises, Tenant agrees that the Premises are in good order and
satisfactory condition. The square footages set forth in this Lease are
approximate and agreed. For purposes of this Lease, the term "Property"
means the Building (as defined above in the Basic Lease Information),
the Project (as defined above in the Basic Lease Information), and the
parcel(s) of land on which they are located and, at Landlord's
discretion, the parking facilities and other improvements, if any,
serving the Building, Project and/or the parcel(s) of land on which they
are located. If the Project is part of a larger complex of structures,
the term "Property" may include the entire complex, where appropriate in
Landlord's reasonable discretion.
1.02 If for any reason Landlord cannot deliver possession of the
Premises on the Commencement Date, Landlord will not be subject to any
liability nor will the validity of this Lease be affected in any manner.
Rather, the actual Commencement Date shall be delayed until delivery of
possession in which event the Termination Date shall be extended to
include the same number of full calendar months as set forth in the
Basic Lease Information (plus any partial first month); provided, in the
event delivery of possession is delayed by any act, omission or request
of Tenant or any Tenant Entity, then the Premises shall be deemed to
have been delivered (and the actual Commencement Date shall occur) on
the earlier of the actual date of delivery or the date delivery would
have occurred absent the number of days of such delay attributable to
Tenant and the Term (as defined above in the Basic Lease Information)
shall then be for such number of full calendar months (plus any partial
first month). Upon request made by Landlord following the Commencement
Date, Tenant shall execute and deliver a commencement letter setting
forth the actual Commencement Date, the date upon which the Term shall
expire, and such other matters regarding the commencement of this Lease
as Landlord shall request. Tenant's failure to execute and return the
commencement letter, or to provide written objection to the statements
contained in the commencement letter, within 10 days after the date of
the commencement letter shall be deemed an approval by Tenant of the
statements contained therein.
1.03 If Landlord elects to permit Tenant to enter upon the Premises
prior to the Commencement Date for the sole purpose of installing
furniture, equipment or other personal property or any other purpose
permitted by Landlord other than for the conduct of its business, such
early entry shall be at Tenant's sole risk and shall be subject to all
the terms and provisions of this Lease, except that Tenant shall not be
required to pay Base Rent or Tenant's Proportionate Share of Operating
Expenses for any days of possession before the Commencement Date during
which Tenant, with the approval of Landlord, is in possession of the
Premises for the sole purpose of performing improvements or installing
furniture, equipment or other personal property. If Tenant takes
possession of the Premises before the Commencement Date for any other
purpose, such possession shall be subject to the terms and conditions of
this Lease, including without limitation, Tenant's obligation to pay
rent hereunder, and the date Tenant takes possession of the Premises
shall be deemed to be the Commencement Date.
1.04 Tenant, at its sole expense, agrees to comply with all
federal, state and local laws, codes, ordinances, statutes, rules,
regulations and other legal requirements (including covenants and
restrictions) applicable to the Premises (collectively, "Laws"). Tenant
agrees to cause the Premises to comply with all Laws, including by
making any changes to the Premises necessitated by any Tenant activity,
including but not limited to changes required by (a) any Tenant
Improvements or Tenant Alterations (as defined below), or (b) any use of
the Premises or Property by Tenant or any Tenant Entity. If any
activity of Tenant or any Tenant Entity necessitates changes to the
Project other than the Premises, then Landlord shall elect that Landlord
accomplish the same at Tenant's expense or that Tenant accomplish the
same at its own expense. In the event that as a result of Tenant's use,
or intended use, of the Premises, the Americans with Disabilities Act or
any other Law requires modifications or the construction or installation
of improvements in or to the Premises, Building, Project and/or common
areas of the Property (as the same are identified from time to time by
Landlord for common use) (the "Common Areas"), the parties agree that
such modifications, construction or improvements shall be made at
Tenant's expense. Landlord or such other person(s) as Landlord may
appoint shall have the exclusive control and management of the Common
Areas. Landlord shall have the right, in Landlord's sole discretion,
from time to time, (i) to make changes to the Common Areas, including,
without limitation, changes in the location, size, shape and number of
the lobbies, windows, stairways, air shafts, elevators, escalators,
restrooms, driveways, entrances, parking spaces, parking areas, loading
and unloading areas, ingress, egress, direction of traffic, landscaped
areas, walkways and utility raceways, (ii) to close temporarily any of
the Common Areas for maintenance purposes so long as reasonable access
to the Premises remains available, (iii) to designate other land outside
the boundaries of the Property to be a part of the Common Area, (iv) to
add additional buildings and improvements to the Common Areas, and (v)
and to do and perform such other acts and make such other changes in, to
or with respect to the Common Areas and Property as Landlord may, in the
exercise of sound business judgment, deem to be appropriate.
1.05 Upon expiration or termination of this Lease, Tenant agrees to
remove all of Tenant's personal property from the Premises and return
the Premises to Landlord in the same condition as received by Tenant
(excepting normal wear and tear) with all removal, repair, and
restoration duties of Tenant, including without limitation pursuant to
Section 9.04, being fully performed to Landlord's reasonable
satisfaction. Notwithstanding any other provision of this Lease to the
contrary, Tenant shall remove at its expense in compliance with the
National Electric Code or other applicable Law, at or prior to the
expiration or termination of this Lease, all wiring and cabling
installed at or about the Premises which shall have been installed by or
on behalf of Tenant. Such wiring and cabling shall include but not be
limited to (a) wiring and cabling above the ceiling panels, behind or
within walls, and under or within floors, and (b) wiring and cabling for
voice, data, security or other purposes. If Tenant abandons, vacates,
or surrenders the Premises, or is dispossessed by process of Law, or
otherwise, any personal property belonging to Tenant left in or about
the Premises will, at the option of Landlord, be deemed abandoned and
may be disposed of by Landlord at the expense and risk of Tenant.
1.06 Landlord has no duty to provide security for any portion of
the Property. To the extent Landlord elects to provide any security,
Landlord is not warranting the effectiveness of any security personnel,
services, procedures or equipment and Tenant shall not rely on any such
personnel, services, procedures or equipment. Landlord shall not be
liable for failure of any such security personnel, services, procedures
or equipment to prevent or control, or to apprehend anyone suspected of,
personal injury or property damage in, on or around the Property.
2. Base Rent. On or before the first day of each calendar month of
the Term, Tenant will pay to Landlord the Base Rent for such month.
Base Rent and Additional Rent (defined below) for any first partial
month and for the first full calendar month of the Term, together with
the Security Deposit, are due and payable upon execution of this Lease.
Monthly rent for any partial calendar month will be prorated. All sums
and other charges payable by Tenant to Landlord hereunder shall be
deemed rent. Base Rent and all other amounts required to be paid by
Tenant hereunder shall be paid without deduction or offset and without
prior notice or demand. All such amounts shall be paid in lawful money
of the United States of America and shall be paid to Landlord at the
address stated herein or to such other persons or to such other places
as Landlord may designate in writing from time to time. Amounts payable
hereunder shall be deemed paid when actually received by Landlord.
3. Additional Rent. Unless otherwise specifically stated in this
Lease, any charge payable by Tenant under this Lease other than Base
Rent is called "Additional Rent." The term "rent" whenever used in this
Lease means Base Rent, Additional Rent and/or any other charge, fee or
monies payable by Tenant under the terms of this Lease. Tenant shall
pay Tenant's Proportionate Share of Operating Expenses in accordance
with Exhibit D of this Lease.
4. Late Charges. If any sum payable by Tenant to Landlord is not
received by Landlord on the date due, Tenant shall pay a late charge
equal to the greater of (a) $50.00, or (b) 10% or the highest per annum
rate of interest permitted from time to time under applicable Law
(whichever is less) of the then delinquent amount. A $50.00 handling
fee will be paid to Landlord by Tenant for each bank returned check. In
the event of a Default, Tenant, at Landlord's election, shall make all
future payments to Landlord by wire or electronic transfer, by cashier's
check or by an automatic payment from Tenant's bank account to
Landlord's account, in each case without cost to Landlord. The
acceptance of late charges and returned check charges by Landlord will
not constitute a waiver of any Tenant default nor any other rights or
remedies of Landlord.
5. Security Deposit. Upon Tenant's execution of this Lease, Tenant
will deposit with Landlord the Security Deposit in the amount specified
in the Basic Lease Information as security for Tenant's full and
faithful performance of every provision under this Lease. Landlord will
not be required to keep the Security Deposit separate from its general
funds. Without limiting or impairing any right Landlord may have or
hereafter acquire under this Lease or applicable Law with respect to the
Security Deposit, Tenant hereby grants to Landlord a security interest
in the Security Deposit. The Security Deposit is not an advance rent
payment or a measure of damages under this Lease. If Tenant fails to
pay any rent due herein, or otherwise is in default of any provision of
this Lease, Landlord may, without waiver of the default or of any other
right or remedy, use, apply or retain all or any portion of the Security
Deposit for the payment of any amount due Landlord or to compensate
Landlord for any loss or damage suffered by Tenant's default. Within 5
days after written notification by Landlord, Tenant will restore the
Security Deposit to the full amount required under this Lease. No part
of the Security Deposit shall be considered to be held in trust, to bear
interest (except when required by Law) or to be prepayment for any
monies to Landlord by Tenant under this Lease. Landlord shall return any
unapplied portion of the Security Deposit to Tenant within 45 days after
the later to occur of: (a) determination of the final rent due from
Tenant; or (b) the later to occur of the Termination Date or the date
Tenant surrenders the Premises to Landlord in compliance with this
Lease. Landlord may assign the Security Deposit to a successor or
transferee and, following the assignment, Landlord shall have no further
liability for the return of the Security Deposit. Tenant hereby waives
the provisions of Section 1950.7 of the California Civil Code, or any
similar or successor Laws now or hereinafter in effect.
6. Use of Premises.
6.01 The Premises will be used and occupied only for the
Permitted Use. Tenant will, at its sole expense, comply with all
conditions and covenants of this Lease, and all Laws. Tenant will not
use or permit the use of the Premises, the Property or any part thereof,
in a manner that is unlawful, diminishes the appearance or aesthetic
quality of any part of the Property, creates waste or a nuisance, or
causes damage to the Property. Tenant shall not permit any
objectionable or unpleasant odors, smoke, dust, gas, noise or vibrations
to emanate from the Premises nor take or permit any other action in the
Premises that would endanger, annoy, or interfere with the operations
of, Landlord or any other tenant of the Property. Tenant shall obtain,
at its sole expense, any permit or other governmental authorization
required for Tenant to legally operate its business from the Premises.
Any animals, excepting guide dogs, on or about the Property or any part
thereof are expressly prohibited.
6.02 In the event of any excessive trash in or outside the
Premises, as determined by Landlord in its sole discretion, Landlord
will have the right to remove such excess trash, charge all costs and
expenses attributable to its removal to Tenant and impose fines in the
event Tenant fails to remedy the situation. Tenant will not cause,
maintain or permit any outside storage on or about the Property. In the
event of any unauthorized outside storage by Tenant or any Tenant
Entity, Landlord will have the right, without notice, in addition to
such other rights and remedies it may have, to remove any such storage
at Tenant's expense.
7. Parking. All parking will comply with the terms and
conditions of this Lease and applicable Rules and Regulations (as
defined in Exhibit C hereto). Tenant will have a non-exclusive
privilege on a "first-come, first-served" basis to use Tenant's
Proportionate Share of those parking spaces designated by Landlord for
public parking. The parking privileges granted to Tenant are personal
to Tenant; Tenant shall not assign or sublet parking privileges.
8. Utilities and Services.
8.01 Landlord agrees to furnish to the Premises during Building
Business Hours (specified in the Basic Lease Information) on generally
recognized business days (but exclusive in any event of Sundays and
national and local legal holidays), the following services and utilities
subject to the rules and regulations of the Building prescribed from
time to time: (a) water for use in the base Building lavatories; (b)
customary heat and air conditioning ("HVAC") required in Landlord's
judgment for the use and occupation of the Premises during Building
Business Hours, although Tenant shall have the right to receive HVAC
service during hours other than Building Business Hours by paying
Landlord's then standard charge for additional HVAC service and
providing such prior notice as reasonably specified by Landlord; (c)
standard janitorial service; (d) elevator service by non-attended
automatic elevators, if applicable; and (e) electricity in accordance
with the terms and conditions in this Section 8.01; and (g) such other
services as Landlord reasonably determines are necessary or appropriate
for the Property. Electricity and/or any other services or utilities
used by Tenant in the Premises shall, at Landlord's option, be paid for
by Tenant either: (i) through inclusion in Operating Expenses (except
as provided for excess usage); (ii) by a separate charge payable by
Tenant to Landlord; or (iii) by separate charge billed by the applicable
utility company and payable directly by Tenant. Without the consent of
Landlord, Tenant's use of electrical service shall not exceed, either in
voltage, rated capacity, use beyond Building Business Hours or overall
load, that which Landlord reasonably deems to be standard for the
Building. Landlord shall have the right to measure electrical usage by
commonly accepted methods, including the installation of measuring
devices such as submeters and check meters. If it is determined that
Tenant is using excess electricity, Tenant shall pay Landlord, as
Additional Rent, the cost of such excess electrical usage and for the
cost of purchasing and installing the measuring device(s).
8.02 Landlord will not be liable or deemed in default, nor will
there be any abatement of rent, breach of any covenant of quiet
enjoyment, partial or constructive eviction or right to terminate this
Lease, for (a) any interruption or reduction of utilities, utility
services or telecommunication services, (b) any telecommunications or
other company failing to provide such utilities or services or providing
the same defectively, and/or (c) any utility interruption in the nature
of blackouts, brownouts, rolling interruptions, hurricanes, tropical
storms or other natural disasters. Tenant agrees to comply with any
energy conservation programs required by Law or implemented by Landlord.
Landlord reserves the right, in its sole discretion, to designate, at
any time, the utility and service providers for Tenant's use within the
Property; no such designation shall impose liability upon Landlord.
Tenant has satisfied itself as to the adequacy of any Landlord owned
utility equipment and the quantity of telephone lines and other service
connections to the "Building's Point of Demarcation" available for
Tenant's use.
9. Tenant Improvements; Tenant Alterations; Mechanic's Liens.
9.01 Any improvements to be constructed in the Premises by
Tenant prior to Tenant initially commencing use of the Premises are
referred to throughout this Lease as "Tenant Improvements." All Tenant
Improvements will be performed in accordance with the terms and
conditions outlined in Exhibit B and also in accordance with the
provisions set forth in this Lease, including this Article 9 regarding
Tenant Alterations.
9.02 The following provisions apply to "Tenant Alterations"
which means and includes (a) any alterations, additions or improvements
to the Premises undertaken by or on behalf of Tenant, (b) any utility
installations at the Premises undertaken by Tenant, and (c) any repair,
restoration, replacement, or maintenance work at the Premises undertaken
by or on behalf of Tenant. Tenant shall not commence any Tenant
Alteration without first obtaining the prior written consent of Landlord
in each instance. Tenant shall submit such information regarding the
intended Tenant Alteration as Landlord may reasonably require, and no
request for consent shall be deemed complete until such information is
so delivered. The following provisions apply to all Tenant Alterations:
(i) Tenant shall hire a licensed general contractor approved by Landlord
who, in turn, shall hire only licensed subcontractors; (ii) Tenant shall
obtain all required permits and deliver a copy of the same to Landlord.
Tenant shall install all Tenant Alterations in strict compliance with
all Laws, permits, any plans approved by Landlord, and all conditions to
Landlord's approval; (iii) Unless Landlord elects otherwise, Tenant
shall remove each Tenant Alteration at the end of this Lease or Tenant's
right of possession and restore the Premises to its prior condition, all
at Tenant's sole expense; and (iv) Tenant shall deliver to Landlord,
within ten (10) days following installation of each Tenant Alteration,
(A) accurate, reproducible as-built plans, (B) proof of final inspection
and approval by all governmental authorities, (C) complete lien waivers
acceptable to Landlord for all costs of the Tenant Alteration, and (D) a
copy of a recorded notice of completion. Landlord's approval of any
Tenant Improvements and Tenant Alterations and/or Landlord's approval or
designation of any general contractor, subcontractor, supplier or other
project participant will not create any liability whatsoever on the part
of Landlord. Tenant shall pay to Landlord a fee equal to 15% of total
costs to compensate Landlord for review of plans, inspection of work,
and other activities regarding any Tenant Alterations.
9.03 Tenant shall pay all costs of Tenant Alterations as and
when due. Tenant shall not allow any lien to be filed. Tenant shall
obtain advance lien waivers and third-party beneficiary agreements from
all contractors, subcontractors, suppliers, and others providing
equipment, labor, materials, or services, in the form required by
Landlord. If any lien is filed, Tenant shall within 5 days remove such
lien. In addition, if any such lien is filed, then, without waiver of
any other right or remedy, Landlord shall have the right to cause such
lien to be removed by any means allowed by Law. All sums expended by
Landlord in connection with such lien and/or its removal, including
attorney fees, shall be immediately due from Tenant to Landlord,
together with interest at the rate of 12% or the highest per annum rate
of interest permitted from time to time under applicable Law (whichever
is less).
9.04 All Tenant Improvements and Tenant Alterations are part of
the realty and belong to Landlord. Tenant shall be solely responsible
for all taxes applicable to any Tenant Alterations, to insure all Tenant
Alterations and to restore the same following any casualty. As a
condition of Landlord consenting to any Tenant Improvements or Tenant
Alterations, Landlord reserves the right to require Tenant to pay an
amount determined by Landlord to remove all of any Tenant Improvements
or Tenant Alterations and restore the Premises to their condition before
any such work commenced (normal wear and tear excepted). At any time
prior to the expiration or earlier termination of this Lease, Landlord
may require, upon 10 days' prior written notice to Tenant, that Tenant
remove all, or any part of the Tenant Improvements and/or Tenant
Alterations at its sole cost and expense and repair any damage caused by
such removal. If Tenant fails to perform its obligations in a timely
manner, Landlord may perform such work at Tenant's expense. The
provisions of this Article 9 shall survive the expiration or any earlier
termination of this Lease.
10. Repairs.
10.01 Tenant shall periodically inspect the Premises to identify
any conditions that are dangerous or in need of maintenance or repair.
Tenant shall promptly provide Landlord with notice of any such
conditions. Tenant shall, at its sole cost and expense, perform all
maintenance and repairs to the Premises that are not Landlord's express
responsibility under this Lease, and keep the Premises in good condition
and repair, regardless of whether the need for such repairs or
maintenance occurs as a result of Tenant's use, any prior use,
vandalism, acts of third parties, Force Majeure (as defined in Article
26 below) or the age of the Premises, reasonable wear and tear excepted.
Tenant's repair and maintenance obligations include, without limitation,
repairs to: (a) floor coverings; (b) interior partitions; (c) doors
(including, without limitation, overhead and roll up doors); (d) the
interior side of demising walls; (e) electronic, fiber, phone and data
cabling and related equipment that is installed by or for the exclusive
benefit of Tenant; (f) supplemental air conditioning units, kitchens,
including hot water heaters, plumbing, and similar facilities
exclusively serving the Premises; and (g) Tenant Improvements and Tenant
Alterations. The standard for comparison of condition will be the
condition of the Premises as of the original date of Landlord's delivery
of the Premises and failure to meet such standard shall create the need
to repair. If Tenant does not perform required maintenance or repairs,
Landlord shall have the right, without waiver of Default or of any other
right or remedy, to perform such obligations of Tenant on Tenant's
behalf, and Tenant will reimburse Landlord for any costs incurred,
together with an administrative charge in an amount equal to 10% of the
cost of the repairs, immediately upon demand.
10.02 Subject to the provisions of Section 1.04, Section 10.01,
Article 15 (Damage or Destruction) and Article 19 (Condemnation),
Landlord shall maintain in good repair, reasonable wear and tear
excepted, (a) the structural elements of the Building; (b) the
mechanical, electrical, plumbing and fire/life safety systems serving
the Building in general; (c) the Common Areas; (d) the roof of the
Building; (e) the exterior windows of the Building; and (f) the
elevators serving the Building, if any. Any damage caused by or repairs
necessitated by any negligence or act of Tenant or any Tenant Entity may
be repaired by Landlord at Landlord's option and Tenant's expense.
Landlord's liability with respect to any defects, repairs, or
maintenance for which Landlord is responsible under any of the
provisions of this Lease shall be limited to the cost of such repairs or
maintenance, and there shall be no abatement of rent and no liability of
Landlord by reason of any injury to or interference with Tenant's
business arising from the making of repairs, alterations or improvements
in or to any portion of the Premises, the Building or the Common Areas
or to fixtures, appurtenances or equipment in the Building or the Common
Areas, except as provided in Article 15. Tenant hereby waives any and
all rights under and benefits of subsection 1 of Section 1932, and
Sections 1941 and 1942 of the California Civil Code, or any similar or
successor Laws now or hereinafter in effect.
11. Insurance.
11.01 Tenant will not do or permit anything to be done within or
about the Premises or the Property which will increase the existing rate
of any insurance on any portion of the Property or cause the
cancellation of any insurance policy covering any portion of the
Property (including, without limitation, any liability coverage).
Tenant will, at its sole cost and expense, comply with any requirements
of any insurer of Landlord. Tenant agrees to maintain policies of
insurance described in this Article. Landlord reserves the right, from
time to time, to require additional coverage (including, flood
insurance, if the Premises is located in a flood hazard zone), and/or to
require higher amounts of coverage. No insurance policy of Tenant shall
have a deductible greater than $5,000.00. Tenant shall maintain the
following insurance ("Tenant's Insurance"): (a) Commercial General
Liability Insurance applicable to the Premises and its appurtenances
providing, on an occurrence basis, a minimum of $2,000,000.00, covering
third-party bodily injury, property damage, personal injury and
advertising injury, product/completed operations as applicable, medical
expenses and contractual liability. Defense costs will be in addition
to the limit of liability. A combination of a General Liability policy
and an umbrella policy or excess liability policy may be used to satisfy
this limit; (b) Property/Business Interruption Insurance written on an
All Risk or Special Cause of Loss Form, including earthquake sprinkler
leakage, at replacement cost value and with a replacement cost
endorsement covering all of Tenant's business and trade fixtures,
equipment, movable partitions, furniture, merchandise and other personal
property within the Premises, including for which Tenant has repair
obligations and any Tenant Improvements and Tenant Alterations performed
by or for the benefit of Tenant. No coinsurance provision will apply;
(c) Workers' Compensation Insurance in amounts not less than the amounts
required by Law; (d) Employers Liability Coverage of at least
$2,000,000.00 per occurrence; (e) Automobile Liability coverage of not
less than $1,000,000.00 combined single limit including property damage
covering Tenant's owned, non-owned and hired vehicles. A combination of
an Employers Liability policy and an umbrella policy or excess liability
policy may be used to satisfy this limit; and (f) If Tenant uses any
part of the Premises or Property to store or to perform work on
vehicles, Tenant shall maintain garage liability insurance in such form
and amount as Landlord may require from time to time but not less than
$2,000,000.00. Any company writing Tenant's Insurance shall be licensed
to do business in the state in which the Premises is located and shall
have an A.M. Best rating of not less than A-VIII. Tenant will deliver
to Landlord (and, at Landlord's request, to any Mortgagee (as defined in
Article 25 below) or to any other third party), simultaneously with its
execution of this Lease and thereafter at least 30 days prior to
expiration, cancellation or change in insurance, certificates acceptable
to Landlord of insurance evidencing, at a minimum, the coverage
specified in this Section 11.01. All such certificates shall be in form
and substance satisfactory to Landlord, shall affirmatively demonstrate
all coverage and requirements set forth in this Lease, shall contain no
disclaimers of coverage, and shall include a firm and unconditional
obligation to give to Landlord at least 10 days' prior written notice
prior to cancellation or change in any coverage. Tenant hereby assigns
to Landlord all its rights to receive any proceeds of such insurance
policies attributable to any Tenant Improvements and Tenant Alterations
if this Lease is terminated due to damage or destruction. Landlord and
the Landlord Related Parties shall be named additional insureds on
Tenant's insurance policies; provided, however, that with respect to
property insurance covering any Tenant Improvements and Tenant
Alterations, Landlord and the Landlord Related Parties shall be loss
payee thereunder (and the foregoing designations shall be evidenced on
the insurance certificates delivered to Landlord as required hereby).
All insurance to be carried by Tenant will be primary to, and non-
contributory with, Landlord's insurance, and there will be no exclusion
for cross-liability endorsements and will in addition to the above
coverage specifically insure Landlord against any damage or loss that
may result either directly or indirectly from any default of Tenant
under Article 13 (Hazardous Materials) herein. Any similar insurance
carried by Landlord will be considered non-contributory and excess
insurance only.
11.02 Tenant will name Landlord (and, at Landlord's request, any
Mortgagee (as defined in Article 25 below) and Landlord's agents as
additional insureds on all insurance policies required of Tenant under
this Lease, other than Worker's Compensation, Employer's Liability, and
Fire and Extended coverage (except on Tenant Improvements or Tenant
Alterations to the Premises for which Landlord shall be named loss
payee) insuring Landlord and such other additional insureds regardless
of any defenses the insurer may have against Tenant and regardless of
whether the subject claim is also made against Tenant. All insurance
policies carried by Tenant will permit the insured, prior to any loss,
to agree with a third party to waive any claim it might have against
said third party without invalidating the coverage under the insurance
policy, and will release Landlord and the Landlord Related Parties (as
defined in Article 24 below), from any claims for damage to any person,
to the Property of which the Premises are a part, any existing
improvements, Tenant Improvements and Tenant Alterations to the
Premises, and to any furniture, fixtures, equipment, installations and
any other personal property of Tenant caused by or resulting from, risks
which are to be insured against by Tenant under this Lease, regardless
of cause. The foregoing shall be evidenced in Tenant's certificate of
insurance.
11.03 Landlord will secure and maintain insurance coverage in
such limits as Landlord may deem reasonable in its sole judgment to
afford Landlord adequate protection. The premiums for such coverage are
"Insurance Premiums" under Exhibit D to this Lease. Any proceeds of
such insurance shall be the sole property of Landlord to use as Landlord
determines. Tenant will provide, at its own expense, all insurance as
Tenant deems adequate to protect its interests.
11.04 Without limiting the effect of any other waiver of or
limitation on the liability of Landlord set forth herein, and except as
provided in Article 12 below, Landlord and Tenant hereby waive and shall
cause their respective insurance carriers to waive any and all rights of
recovery, claims, actions or causes of action against the other for any
loss or damage with respect to Tenant's personal property, fixtures and
equipment, any Tenant Improvements or Tenant Alterations, the Building,
the Premises, or any contents thereof, including rights, claims, actions
and causes of action based on negligence, which loss or damage is (or
would have been, had the insurance required by this Lease been carried)
covered by insurance. For the purposes of this waiver, any deductible
with respect to a party's insurance shall be deemed covered by and
recoverable by such party under valid and collectable policies of
insurance. For purposes of this Section 11.04, "Landlord" shall include
the Landlord Related Parties.
11.05 Whenever Tenant shall undertake any alterations, additions
or improvements in, to or about the Premises, including, without
limitation, any Tenant Improvements and/or Tenant Alterations ("Work")
the aforesaid insurance protection must extend to and include injuries
to persons and damage to property arising in connection with such Work,
without limitation including liability under any applicable structural
work act, and such other insurance as Landlord shall require; and the
policies of or certificates evidencing such insurance must be delivered
to Landlord prior to the commencement of any such Work.
12. Waiver of Claims; Indemnification. Tenant waives all claims
against Landlord and the Landlord Related Parties for any damage to any
property in or about the Property, for any loss of business or income,
and for injury to or death of any persons, regardless of the cause of
any such loss or event (including negligence) or time of occurrence.
Tenant will indemnify, protect, defend and hold harmless Landlord and
the Landlord Related Parties from and against all claims, losses,
damages, causes of action, costs, expenses and liabilities, including
legal fees, arising out of Tenant's occupancy of the Premises or
presence on the Property, the conduct of Tenant's business, any default
by Tenant, and/or any act, omission or neglect (including violations of
Law) of Tenant or its agents, contractors, employees, suppliers,
licensees or invitees, successors or assigns (each a "Tenant Entity" and
collectively, the "Tenant Entities"). The provisions of this Article 12
shall survive the expiration or earlier termination of this Lease.
13. Hazardous Materials.
13.01 "Hazardous Materials" will mean any substance commonly
referred to, or defined in any Law, as a hazardous material or hazardous
substance (or other similar term), including but not be limited to,
chemicals, solvents, petroleum products, flammable materials,
explosives, asbestos, urea formaldehyde, PCB's, chlorofluorocarbons,
freon or radioactive materials. Tenant will not cause or permit any
Hazardous Materials to be brought upon, kept, stored, discharged,
released or used in, under or about any portion of the Property by
Tenant, or its agents without the prior written consent of Landlord,
which consent may be withheld or conditioned in Landlord's sole
discretion; provided, Tenant may bring into the Premises small amounts
of Hazardous Materials (such as cleaning products and copy toner) which
are readily available to Tenant by unregulated retail purchase if the
same are necessary in Tenant's normal business operations. If Tenant or
any Tenant Entity brings any Hazardous Materials to the Premises or
Property, with or without the prior written consent of Landlord (without
waiver of the requirement of prior written consent), and in executing
this Lease Tenant acknowledges and agrees that by its direct or indirect
involvement in the introduction of any Hazardous Materials to the
Premises or Property, with or without the consent of the Landlord, that
Tenant accepts full and complete responsibility for such Hazardous
Materials and henceforth on will be considered the Responsible Party as
defined by any applicable governmental authority and/or Law. Further,
Tenant shall: (a) use such Hazardous Material only as is reasonably
necessary to Tenant's business, in small, properly labeled quantities;
(b) handle, use, keep, store, and dispose of such Hazardous Material
using the highest accepted industry standards and in compliance with all
applicable Laws; (c) maintain at all times with Landlord a copy of the
most current MSDS sheet for each such Hazardous Material; and (d) comply
with such other rules and requirements Landlord may from time to time
impose, or with any definition of Hazardous Waste or Law as it may be
implemented or modified during or after the term of this Lease. Upon
expiration or earlier termination of this Lease, Tenant will, at
Tenant's sole cost and expense, cause all Hazardous Materials brought to
the Premises or the Property by Tenant or any Tenant Entity, to be
removed from the Property in compliance with any and all applicable
Laws.
13.02 If Tenant or any Tenant Entity violates the provisions of
this Article 13, or perform any act or omission which contaminates or
expands the scope of contamination of the Premises, the Property, or any
part thereof, the underlying groundwater, or any property adjacent to
the Property, or violates or allegedly violates any applicable Law, then
Tenant will promptly, at Tenant's expense, take all investigatory and/or
remedial action (collectively called "Remediation"), as directed or
required by any governmental authority that is necessary to fully clean
up, remove and dispose of such Hazardous Materials and any contamination
so caused and shall do so in compliance with any applicable Laws.
Tenant will also repair any damage to the Premises and any other
affected portion(s) of the Property caused by such contamination and
Remediation.
13.03 Tenant shall immediately provide to Landlord written
notice of any investigation or claim arising out of the use by Tenant or
any Tenant Entity of Hazardous Materials at the Property or the
violation of any provision of this Article 13, or alleged violation of
any Law and shall keep Landlord fully advised regarding the same.
Tenant shall provide to Landlord all reports regarding the use of
Hazardous Materials by Tenant or any Tenant Entity at the Property and
any incidents regarding the same, regardless of whether any such
documentation is considered by Tenant to be confidential. Landlord
retains the right to participate in any Remediation and/or legal actions
affecting the Property involving Hazardous Materials arising from
Tenant's actual or alleged violation of any provision of this Article 13
or Law.
13.04 Tenant will indemnify, protect, defend and forever hold
Landlord, its lenders and ground lessor if any, the Landlord Related
Parties, the Premises, the Property, or any portion thereof, harmless
from any and all damages, causes of action, fines, losses, liabilities,
judgments, penalties, claims, and other costs, including, but not
limited to, any Landlord Related Parties' costs incurred during its
participation in any Remediation and/or legal actions as specified in
13.03, arising out of any failure of Tenant or Tenant Entity to observe
any covenants of this Article 13. All provisions of this Article 13
shall survive the expiration of this Lease and any termination of this
Lease or of Tenant's right of possession.
14. Landlord's Access. Landlord, its agents, contractors,
consultants and employees, will have the right to enter the Premises at
any time in the case of an emergency, and otherwise at reasonable times
to examine the Premises, perform work in or clean the Premises, inspect
any Tenant Alterations and/or any Tenant Improvements, show the
Premises, exercise any right or remedy, or for any other purpose. If
reasonably necessary, Landlord may temporarily close all or a portion of
the Premises to perform repairs, alterations and additions and Tenant
shall not have any right to terminate this Lease or xxxxx rent or assert
a claim of partial or constructive eviction because of any such closure.
For each of these purposes, Landlord will at all times have and retain
any necessary keys. Tenant will not alter any lock or install new or
additional locks or bolts on any door in or about the Premises without
obtaining Landlord's prior written approval and will, in each event,
furnish Landlord with a new key. Access by Landlord will not give
Tenant the right to terminate this Lease, and will be without abatement
of rent or liability on the part of Landlord or any Landlord Related
Parties.
15. Damage or Destruction.
15.01 If the Premises is damaged or destroyed by fire or other
casualty, Tenant will immediately give written notice to Landlord of the
casualty. Landlord will have the right to terminate this Lease
following a casualty if any of the following occur: (a) insurance
proceeds actually paid to Landlord and available for use are not
sufficient to pay the full cost to fully repair the damage; (b) Landlord
determines that the Premises or the Building cannot be fully repaired
within 180 days from the date restoration commences; (c) the Premises
are damaged or destroyed within the last 12 months of the Term; (d)
Tenant is in default of this Lease at the time of the casualty; (e)
Landlord would be required under this Lease to xxxxx or reduce Tenant's
rent for a period in excess of 6 months if the repairs were undertaken;
or (f) the Property, or the Building in which the Premises is located,
is damaged such that the cost of repair of the same would exceed 10% of
the replacement cost of the same. If Landlord elects to terminate this
Lease, Landlord will be entitled to retain all applicable Tenant
insurance proceeds and Tenant shall assign or endorse over to Landlord
(or to any party designated by Landlord) all property insurance proceeds
payable to Tenant under Tenant's insurance, excepting those attributable
to Tenant's furniture, fixtures, equipment, and any other personal
property.
15.02 If this Lease is not terminated pursuant to Section 15.01,
Landlord will repair the Premises and this Lease shall continue. The
repair obligation of Landlord shall be limited to repair of the Premises
excluding any Tenant Improvements, Tenant Alterations, and any personal
property and trade fixtures of Tenant. During the period of repair,
rent will be abated or reduced in proportion to the degree to which
Tenant's use of the Premises is impaired, as determined by Landlord, not
to exceed the total amount of rent loss insurance proceeds, directly
attributable to Tenant's Premises, Landlord has received. However, rent
will not be abated if Tenant or any of its agents is the cause of the
casualty.
15.03 The provisions of this Lease, including this Article 15,
constitute an express agreement between Landlord and Tenant with respect
to any and all damage to, or destruction of, all or any part of the
Premises or the Property, and any Laws, including, without limitation,
Sections 1932(2) and 1933(4) of the California Civil Code, with respect
to any rights or obligations concerning damage or destruction in the
absence of an express agreement between the parties, and any similar or
successor Laws now or hereinafter in effect, shall have no application
to this Lease or any damage or destruction to all or any part of the
Premises or the Property.
16. Assignment and Subletting.
16.01 Tenant will not, voluntarily or by operation of law,
assign, sell, convey, sublet or otherwise transfer all or any part of
Tenant's right or interest in this Lease, or allow any other person or
entity to occupy or use all or any part of the Premises (collectively
called "Transfer") without first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld. Any
Transfer without the prior written consent of Landlord shall be void.
Without limiting the generality of the definition of "Transfer," it is
agreed that each of the following shall be deemed a "Transfer" for
purposes of this Article 16: (a) an entity other than Tenant becoming
the tenant hereunder by merger, consolidation, or other reorganization;
and (b) a transfer of any ownership interest in Tenant (unless Tenant is
an entity whose stock is publicly traded). Tenant hereby waives the
provisions of Section 1995.310 of the California Civil Code, or any
similar or successor Laws, now or hereinafter in effect, and all other
remedies, including, without limitation, any right at law or equity to
terminate this Lease, on its own behalf and, to the extent permitted
under all applicable Laws, on behalf of the proposed transferee. Tenant
shall provide to Landlord all information requested by Landlord
concerning a Transfer. In no event shall Tenant mortgage, encumber,
pledge or assign for security purposes all or any part of its interest
in this Lease. Regardless of whether consent by Landlord is granted in
connection with any Transfer, no Transfer shall release Tenant from any
obligation or liability hereunder; Tenant shall remain primarily liable
to pay all rent and other sums due hereunder to Landlord and to perform
all other obligations hereunder. Similarly, no Transfer, with or
without the consent of Landlord, shall release any guarantor from its
obligations under its guaranty. Upon any assignment or sublease, any
rights, options or opportunities granted to Tenant hereunder to extend
or renew the Term, to shorten the Term, or to lease additional space
shall be null and void.
16.02 In the event Landlord consents to a Transfer, the Transfer
will not be effective until Landlord receives a fully executed agreement
regarding the Transfer, in a form and of substance acceptable to
Landlord, any documents or information required by such agreement
(including any estoppel certificate and any subordination agreement
required by any lender of Landlord), an amount equal to all attorneys'
fees incurred by Landlord (regardless of whether such consent is granted
and regardless of whether the Transfer is consummated) and other
expenses of Landlord incurred in connection with the Transfer, and a
Transfer fee in an amount determined by Landlord (a minimum fee of
$250.00).
16.03 Any consideration paid to Tenant for assignment of this
Lease, less any reasonable brokerage commission paid by Tenant with
respect to such assignment, shall be immediately paid to Landlord. In
the event of a sublease of all or a portion of the Premises, all rents
payable by the subtenant in excess of rents payable hereunder (allocated
on a per square foot basis in the event of a partial sublease) shall be
immediately due and payable to Landlord; provided, excess rental shall
be calculated taking into account straight-line amortization, without
interest, of any reasonable brokerage commission paid by Tenant in
connection with the subject sublease transaction.
16.04 Landlord may, within 30 days after submission of Tenant's
written request for Landlord's consent to a Transfer, terminate this
Lease (or, as to a partial subletting, terminate this Lease as to the
portion of the Premises proposed to be sublet) as of the date the
proposed Transfer was to be effective. If Landlord terminates this Lease
as to only a portion of the Premises, then (a) this Lease shall cease as
to such portion of the Premises, (b) Tenant shall pay to Landlord all
Base Rent and other amounts accrued through the termination date
relating to the portion of the Premises covered by the proposed
Transfer, and (c) Tenant shall execute, upon request of Landlord, an
amendment hereto setting forth matters related to such partial
termination. Landlord may physically separate the recaptured portion of
the Premises and lease such portion of the Premises to the prospective
transferee (or to any other person) without liability to Tenant.
16.05 Upon the occurrence of a Default, if the Premises or any
portion thereof are sublet, Landlord may, at its option and in addition
and without prejudice to any other remedies herein provided or provided
by Law, collect directly from the sublessee(s) all rentals becoming due
Tenant and apply such rentals against other sums due hereunder to
Landlord.
17. Default.
Time is of the essence in the performance of all covenants of Tenant.
A "Default" is defined as a failure by the Tenant to comply with or
perform any of the terms, covenants, conditions or Rules and Regulations
under this Lease, including, without limitation, the following:
17.01 Tenant fails to make, as and when due, any payment of Base
Rent, Additional Rent, or any other monetary payment required to be made
by Tenant herein.
17.02 Landlord discovers that any representation or warranty
made by Tenant or any guarantor was materially false when made or that
any financial statement of Tenant or of any guarantor of this Lease
given to Landlord was materially false.
17.03 Tenant makes any general arrangement or assignment for the
benefit of creditors, becomes a "debtor" in a bankruptcy proceeding, is
unable to pay its debts or obligations as they occur, or has an
attachment, execution or other seizure of substantially all of its
assets located at the Property or its interest in this Lease, or any
guarantor becomes insolvent, becomes a "debtor" in a bankruptcy
proceeding, fails to perform any obligation under its guaranty, or
attempts to revoke its guaranty.
17.04 Tenant fails to observe, perform or comply with any of the
non-monetary terms, covenants, conditions, provisions or rules and
regulations applicable to Tenant under this Lease other than as
specified above in this Article 17; provided, if such failure (a) is not
intentional on the part of Tenant, (b) is not the type of failure as to
which Landlord shall have previously given Tenant written notice, (c)
does not constitute a default or violation under any loan or other
agreement to which Landlord is a party, and (d) is, in the sole opinion
of Landlord, a curable failure, then such failure shall not be a
"Default" unless Tenant does not cure such failure within 10 days
following written notice of such failure from Landlord. The foregoing
Tenant cure period shall in no event apply to any of the following:
Tenant's (i) failure to provide an estoppel certificate when and as
required under Section 20 of this Lease; (ii) failure to maintain
insurance required under Article 11 of the Lease; (iii) failure to
vacate the Premises upon the expiration or earlier termination of the
Lease; (iv) failure to comply with any obligation under the Lease
pertaining to Hazardous Materials; (v) failure to provide a
subordination agreement when and as required under Section 25 of this
Lease; (vi) any other matter provided for in another subparagraph of
this Article 17 for which another time limit is provided elsewhere in
the Lease..
18. Remedies of Landlord.
18.01 Upon the occurrence of any Default under this Lease,
whether enumerated in Section 17 or not, Landlord shall have the option
to pursue any one or more of the following remedies without any notice
(except as expressly prescribed herein) or demand whatsoever (and
without limiting the generality of the foregoing, Tenant hereby
specifically waives notice and demand for payment of Rent or other
obligations, except for those notices specifically required pursuant to
the terms of Article 17 or this Article 18, and waives any and all other
notices or demand requirements imposed by applicable law, including any
statutory notice required under California Code of Civil Procedure
Section 1161):
(a) Terminate this Lease and Tenant's right to possession of the
Premises and recover from Tenant an award of damages equal to
the sum of the following:
(i) The Worth at the Time of Award of the unpaid Rent which
had been earned at the time of termination;
(ii) The Worth at the Time of Award of the amount by which the
unpaid Rent which would have been earned after
termination until the time of award exceeds the amount of
such Rent loss that Tenant affirmatively proves could
have been reasonably avoided;
(iii) The Worth at the Time of Award of the amount by which the
unpaid Rent for the balance of the Term after the time of
award exceeds the amount of such Rent loss that Tenant
affirmatively proves could be reasonably avoided;
(iv) Any other amount necessary to compensate Landlord for all
the detriment either proximately caused by Tenant's
failure to perform Tenant's obligations under this Lease
or which in the ordinary course of things would be likely
to result therefrom; and
(v) All such other amounts in addition to or in lieu of the
foregoing as may be permitted from time to time under
applicable law.
The "Worth at the Time of Award" of the amounts referred to in parts
(i) and (ii) above, shall be computed by allowing interest at the
lesser of a per annum rate equal to: (A) the greatest per annum rate
of interest permitted from time to time under applicable law, or
(B) the Prime Rate plus 5%. For purposes hereof, the "Prime Rate"
shall be the per annum interest rate publicly announced as its prime
or base rate by a federally insured bank selected by Landlord in the
State of California. The "Worth at the Time of Award" of the amount
referred to in part (iii), above, shall be computed by discounting
such amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus 1%;
(b) Employ the remedy described in California Civil Code 1951.4
(Landlord may continue this Lease in effect after Tenant's
breach and abandonment and recover Rent as it becomes due, if
Tenant has the right to sublet or assign, subject only to
reasonable limitations); or
(c) Notwithstanding Landlord's exercise of the remedy described in
California Civil Code 1951.4 in respect of an event or
events of default, at such time thereafter as Landlord may
elect in writing, to terminate this Lease and Tenant's right
to possession of the Premises and recover an award of damages
as provided above in Paragraph 18.01(a).
18.02 The subsequent acceptance of Rent hereunder by Landlord
shall not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant or condition of this Lease, other than the failure of
Tenant to pay the particular Rent so accepted, regardless of Landlord's
knowledge of such preceding breach at the time of acceptance of such
Rent. No waiver by Landlord of any breach hereof shall be effective
unless such waiver is in writing and signed by Landlord.
18.03 TENANT HEREBY WAIVES ANY AND ALL RIGHTS CONFERRED BY
SECTION 3275 OF THE CIVIL CODE OF CALIFORNIA AND BY SECTIONS 1174 (c)
AND 1179 OF THE CODE OF CIVIL PROCEDURE OF CALIFORNIA AND ANY AND ALL
OTHER LAWS AND RULES OF LAW FROM TIME TO TIME IN EFFECT DURING THE LEASE
TERM PROVIDING THAT TENANT SHALL HAVE ANY RIGHT TO REDEEM, REINSTATE OR
RESTORE THIS LEASE FOLLOWING ITS TERMINATION BY REASON OF TENANT'S
BREACH.
18.04 No right or remedy herein conferred upon or reserved to
Landlord is intended to be exclusive of any other right or remedy, and
each and every right and remedy shall be cumulative and in addition to
any other right or remedy given hereunder or now or hereafter existing
by agreement, applicable law or in equity. In addition to other
remedies provided in this Lease, Landlord shall be entitled, to the
extent permitted by applicable law, to injunctive relief, or to a decree
compelling performance of any of the covenants, agreements, conditions
or provisions of this Lease, or to any other remedy allowed to Landlord
at law or in equity. Forbearance by Landlord to enforce one or more of
the remedies herein provided upon an event of default shall not be
deemed or construed to constitute a waiver of such default.
18.05 If Tenant is in Default of any of its non-monetary
obligations under the Lease, Landlord shall have the right to perform
such obligations. Tenant shall reimburse Landlord for the cost of such
performance upon demand together with an administrative charge equal to
10% of the cost of the work performed by Landlord.
18.06 This Section 18 shall be enforceable to the maximum extent
such enforcement is not prohibited by applicable law, and the
unenforceability of any portion thereof shall not thereby render
unenforceable any other portion.
19. Condemnation. If the Premises or any portion thereof are taken
under the power of eminent domain or sold under the threat of the
exercise of said power (collectively, "Condemnation"), this Lease shall
terminate as to the part taken as of the date the condemning authority
takes title or possession, whichever first occurs. If all or a material
portion of the rentable area of the Premises are taken by Condemnation,
Tenant may, at Tenant's option, to be exercised in writing within 10
days after Landlord shall have given Tenant written notice of such
taking (or in the absence of such notice, within 10 days after the
condemning authority shall have taken possession) terminate this Lease
as of the date the condemning authority takes such possession. Landlord
shall also have the right to terminate this Lease if there is a taking
by Condemnation of any portion of the Building or Property which would
have a material adverse effect on Landlord's ability to profitably
operate the remainder of the Building. If neither party terminates this
Lease in accordance with the foregoing, this Lease shall remain in full
force and effect as to the portion of the Premises remaining, except
that the Base Rent shall be reduced in proportion to the reduction in
utility of the Premises caused by such Condemnation. Condemnation
awards and/or payments shall be the property of Landlord, whether such
award shall be made as compensation for diminution in value of the
leasehold, the value of the part taken or for severance damages. Tenant
hereby waives any and all rights it might otherwise have pursuant to
Section 1265.130 of the California Code of Civil Procedure, or any
similar or successor Laws.
20. Estoppel Certificates; Financial Statements.
20.01 Tenant will execute and deliver to Landlord, within 10 days
after written request from Landlord, a commercially reasonable estoppel
certificate to those parties as are reasonably requested by Landlord
(including a Mortgagee or prospective purchaser). Without limitation,
such estoppel certificate may include a certification as to the status
of this Lease, the existence of any default and the amount of rent that
is due and payable. Any such estoppel certificate may be relied upon by
Landlord and by any actual or prospective buyer or lender of the
Property and any other third party designated by Landlord. If Tenant
fails to execute and deliver such estoppel certificate within such 10
day period, such estoppel certificate shall be binding on Tenant as
prepared.
20.02 Within 10 days after written request from Landlord, Tenant
shall deliver to Landlord such financial statements as Landlord
reasonably requests regarding Tenant or any assignee, subtenant, or
guarantor of Tenant. Tenant represents and warrants to Landlord that
each financial statement is a true and accurate statement.
21. Notices. All communications and notices required under this
Lease shall be in writing and shall be addressed to the respective
address of the receiving party. All notices to Tenant shall be given by
reputable overnight courier, U. S. mail (return receipt required,
postage prepaid), or hand delivery, and shall be deemed received on the
date of delivery (or attempted delivery) as evidenced by return receipt.
Any notice to Tenant may also be given by posting at the Premises and
shall be effective upon such posting. At any time during the Term,
Landlord or Tenant may specify a different Notice Address (excluding
post office boxes) by providing written notification to the other.
22. Holdover. If Tenant remains in possession of all or any part of
the Premises with Landlord's prior written consent after the expiration
or termination of this Lease or of Tenant's right to possession, such
possession will constitute a month-to-month tenancy which may be
terminated by either Landlord or Tenant upon 30 days written notice and
will not constitute a renewal or extension of the Term. If Tenant fails
to surrender all or any part of the Premises at the termination of this
Lease, occupancy of the Premises after termination shall be that of a
tenancy at sufferance. Tenant's occupancy shall be subject to all the
terms and provisions of this Lease, and Tenant shall pay an amount (on a
per month basis without reduction for partial months during the
holdover) equal to 200% of the sum of the greater of (a) Base Rent and
Additional Rent due for the period immediately preceding the holdover,
and (b) then-current fair market rent for the Premises as reasonably
determined by Landlord. No holdover by Tenant or payment by Tenant
after the termination of this Lease shall be construed to extend the
Term or prevent Landlord from immediate recovery of possession of the
Premises by summary proceedings or otherwise. If Landlord is unable to
deliver possession of the Premises to a new tenant or to perform
improvements for a new tenant as a result of Tenant's holdover, Tenant
shall be liable for all damages (including, without limitation,
consequential, indirect and special) that Landlord suffers from the
holdover.
23. Relocation of the Premises. Landlord may, at any time during
the Term, relocate Tenant to comparable space within the Property.
Landlord will give Tenant a written notice of its intention to relocate
the Premises and Tenant will complete such relocation within the 30 days
after receipt of such written notice. Landlord shall pay all reasonable
costs and expenses of such relocation (excluding any Tenant owned
telecommunication equipment, lines, boards and wiring which Tenant must
bear the cost of relocating and installing), and the terms and
conditions of the Lease will remain in full force and effect except for
any actual adjustments in Base Rent or Tenant's Proportionate Share that
may result from a square footage adjustment due to such relocation.
24. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS LEASE, THE LIABILITY OF LANDLORD (AND OF ANY
SUCCESSOR LANDLORD) SHALL BE LIMITED TO THE LESSER OF (A) THE INTEREST
OF LANDLORD IN THE BUILDING, OR (B) THE EQUITY INTEREST LANDLORD WOULD
HAVE IN THE BUILDING IF THE BUILDING WERE ENCUMBERED BY THIRD PARTY DEBT
IN AN AMOUNT EQUAL TO 80% OF THE VALUE OF THE BUILDING (CALCULATIONS OF
EQUITY SHALL BE MADE AS OF THE INITIAL DATE TENANT NOTIFIES LANDLORD OF
THE ACTUAL OR ALLEGED DEFAULT OR OTHER CLAIM). TENANT SHALL LOOK SOLELY
TO LANDLORD'S INTEREST IN THE BUILDING FOR THE RECOVERY OF ANY JUDGMENT
OR AWARD AGAINST LANDLORD OR ANY OF LANDLORD'S TRUSTEES, MEMBERS,
PRINCIPALS, BENEFICIARIES, PARTNERS, OFFICERS, DIRECTORS, EMPLOYEES,
MORTGAGEES (AS DEFINED IN ARTICLE 26 BELOW) OR OTHER SECURED PARTIES AND
AGENTS (EACH A "LANDLORD RELATED PARTY"). NEITHER LANDLORD NOR ANY
LANDLORD RELATED PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR
DEFICIENCY, AND IN NO EVENT SHALL LANDLORD OR ANY LANDLORD RELATED PARTY
BE LIABLE TO TENANT FOR ANY LOST PROFIT, DAMAGE TO OR LOSS OF BUSINESS
OR ANY FORM OF SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE. BEFORE FILING
SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND
ANY MORTGAGEE(S) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES OR OTHER
ENCUMBRANCES ON THE BUILDING, NOTICE AND REASONABLE TIME TO CURE THE
ALLEGED DEFAULT.
25. Subordination. Tenant accepts this Lease subject and
subordinate to any mortgage(s), deed(s) of trust, ground lease(s) or
other lien(s) now or subsequently arising upon the Premises, the
Building or the Property, and to renewals, modifications, refinancings
and extensions thereof (collectively referred to as a "Mortgage"). The
party having the benefit of a Mortgage shall be referred to as a
"Mortgagee". This clause shall be self-operative, but upon request from
a Mortgagee, Tenant shall, within ten (10) days of request therefor,
execute a commercially reasonable subordination agreement in favor of
the Mortgagee. As an alternative, a Mortgagee shall have the right at
any time to subordinate its Mortgage to this Lease. Upon request,
Tenant, without charge, shall attorn to any successor to Landlord's
interest in this Lease.
26. Force Majeure. Landlord will not be deemed in breach or default
of this Lease or have liability to Tenant, nor will Tenant have any
right to terminate this Lease or xxxxx rent or assert a claim of breach
of any covenant of quiet enjoyment or partial or constructive eviction,
because of Landlord's failure to perform any of its obligations under
this Lease if the failure is due in part or in full to strikes, acts of
God, shortages of labor or materials, war, terrorist acts, civil
disturbances and other causes beyond Landlord's reasonable control
("Force Majeure"). If this Lease specifies a time period for
performance of an obligation by Landlord, that time period will be
extended by the period of any delay in Landlord's performance caused by
such Force Majeure events as described herein.
27. Miscellaneous Provisions.
27.01 Whenever the context of this Lease requires, the word
"person" shall include any entity, and the singular shall include the
plural and the plural shall include the singular. If more than one
person or entity is Tenant, the obligations of each such person or
entity under this Lease will be joint and several. The terms,
conditions and provisions of this Lease will apply to and bind the
heirs, successors, executors, administrators and assigns of Landlord and
Tenant. No remedy or election hereunder shall be deemed exclusive but
shall, whenever possible, be cumulative with all other remedies at law
or in equity. Time is of the essence for the performance of each term,
condition and covenant of this Lease.
27.02 The captions and headings of this Lease are used for the
purpose of convenience only. This Lease contains all of the agreements
and conditions made between Landlord and Tenant and may not be modified
in any manner other than by a written agreement signed by both Landlord
and Tenant. Any statements, promises, agreements, warranties or
representations, whether oral or written, not expressly contained herein
will in no way bind Landlord and Tenant expressly waives all claims for
damages by reason of any statements, promises, agreements, warranties or
representations, if any, not contained in this Lease. No provision of
this Lease shall be deemed to have been waived by Landlord unless such
waiver is in writing signed by a regional vice president or higher title
of Landlord or of Landlord's management company, and no custom or
practice which may develop between the parties during the Term shall
waive or diminish the Landlord's right to enforce strict performance by
Tenant of any terms of this Lease. Additionally, regardless of
Landlord's knowledge of a default at the time of such acceptance, the
acceptance of rent or any other payment by Landlord will not constitute
a waiver by Landlord of any default by Tenant. This Lease is governed
and construed in accordance with the laws of the state in which the
Premises are located, and venue of any legal action will be in the
county where the Premises are located.
27.03 This Lease has been fully reviewed by both parties and
shall not be strictly or adversely construed against the drafter. If
any provision contained herein is determined to be invalid, illegal or
unenforceable in any respect, then (a) such provision shall be enforced
to the fullest extent allowed, and (b) such invalidity, illegality, or
unenforceability will not affect any other provision of this Lease.
27.04 Except as required under Articles 20 and/or 25 of this
Lease, Tenant hereby agrees not to disclose any terms of this Lease
without the prior written consent of Landlord. Tenant shall not record
this Lease or any short form memorandum hereof.
27.05 All obligations of Tenant under this Lease not fully
performed as of the expiration or earlier termination of the Term shall
survive the expiration or earlier termination of this Lease.
27.06 Landlord and Tenant each warrant to the other that it has
not dealt with any broker or agent in connection with this Lease, other
than the person(s) listed in the Basic Lease Information. Landlord and
Tenant each agree to indemnify the other against all costs, expenses,
legal fees and other liability for commissions or other compensation
claimed by any other broker or agent by reason of the act or agreement
of the indemnifying party. The provisions of this Section 27.06 shall
survive the expiration or earlier termination of this Lease.
27.07 The grant of any consent or approval required from
Landlord under this Lease shall be proved only by proof of a written
document signed and delivered by Landlord expressly setting forth such
consent or approval. Unless otherwise specified herein, any such
consent or approval may be withheld in Landlord's sole discretion.
Notwithstanding any other provision of this Lease, the sole and
exclusive remedy of Tenant for any alleged or actual improper
withholding, delaying or conditioning of any consent or approval by
Landlord shall be the right to specifically enforce any right of Tenant
to require issuance of such consent or approval on conditions allowed by
this Lease.
27.08 Tenant agrees to abide by, keep and observe, and shall
cause its employees, suppliers, shippers, customers, agents, contractors
and invitees to so abide by, keep and observe, all Rules and Regulations
set forth in Exhibit C (the "Rules and Regulations") and all additions
and amendments to the same of which Landlord provides written notice to
Tenant. Landlord will not be responsible to Tenant for any
nonperformance by any other tenant, occupant or invitee of the Property
of any said Rules and Regulations.
27.09 Tenant will not place any signage on or about the
Property, or on any part thereof, without the prior written consent of
Landlord which Landlord may withhold or condition in its sole
discretion. All Tenant signage will comply with the terms and
conditions of this Lease, the all applicable Laws, and sign criteria for
the Building as promulgated by Landlord from time to time and the Rules
and Regulations and/or other criteria which Landlord may establish from
time to time.
27.10 If, on account of any breach or default by Tenant in
Tenant's obligations under the terms and conditions of this Lease, it
shall become necessary or appropriate for Landlord to employ or consult
with an attorney or collection agency concerning or to enforce or defend
any of Landlord's rights or remedies arising under this Lease or to
collect any sums due from Tenant, Tenant agrees to pay all costs and
fees so incurred by Landlord, including, without limitation, reasonable
attorneys' fees and costs. If either party institutes a suit against
the other for violation of or to enforce any covenant, term or condition
of this Lease, the prevailing party shall be entitled to reimbursement
of all of its costs and expenses, including, without limitation,
reasonable attorneys' fees.
27.11 Tenant represents and warrants to Landlord that each
individual executing this Lease on behalf of Tenant is authorized to do
so on behalf of Tenant and that Tenant is not, and the entities or
individuals constituting Tenant or which may own or control Tenant or
which may be owned or controlled by Tenant are not, (i) in violation of
any laws relating to terrorism or money laundering, or (ii) among the
individuals or entities identified on any list compiled pursuant to
Executive Order 13224 for the purpose of identifying suspected
terrorists or on the most current list published by the U.S. Treasury
Department Office of Foreign Assets Control at its official website,
xxxx://xxx.xxxxx.xxx/xxxx/xxxxxx.xxx or any replacement website or other
replacement official publication of such list.
27.12 Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING
THE PROPERTY OR ARISING OUT OF THIS LEASE.
27.13 Solely for the purpose of effectuating Tenant's
indemnification obligations under this Lease, and not for the benefit of
any third parties (including but not limited to employees of Tenant),
Tenant specifically and expressly waives any immunity that it may be
granted under applicable federal, state or local Worker Compensation
Acts, Disability Benefit Acts or other employee benefit acts.
Furthermore, the indemnification obligations under this Lease shall not
be limited in any way by any limitation on the amount or type of
damages, compensation or benefits payable to or for any third party
under Worker Compensation Acts, Disability Benefit Acts or other
employee benefit acts. The parties acknowledge that the foregoing
provisions of this Section have been specifically and mutually
negotiated between the parties.
28. Additional Provisions.
None.
[SIGNATURE PAGE TO FOLLOW]
Submission of this Lease for examination and signature by Tenant is not
an offer to lease and does not create a reservation or option to lease.
This Lease will become effective and binding only upon full execution and
delivery by both Tenant and Landlord. THIS LEASE, WHETHER OR NOT EXECUTED
BY TENANT, IS SUBJECT TO ACCEPTANCE BY LANDLORD, ACTING BY ITSELF OR BY ITS
AGENT BY THE SIGNATURE ON THIS LEASE OF ITS SENIOR VICE PRESIDENT,
ASSISTANT VICE PRESIDENT OR REGIONAL MANAGER AND DELIVERY OF AN ORIGINAL
OF SUCH SIGNATURE TO TENANT.
Landlord and Tenant have executed this Lease as of the day and year
first above written.
LANDLORD:
PS BUSINESS PARKS, L.P., a California
Limited Partnership
By: __________________________
Name:Xxxxxx Xxxxxxxxx
Title:Assistant Vice President
TENANT:
MCR PRINTING AND PACKAGING, a California
Corporation
By: _____________________________
Name:
_____________________________
Title:
_____________________________
By: _____________________________
Name:
_____________________________
Title: __________________________
___
Tax ID Number (SSN or FEIN):
__________________________________
EXHIBIT A-1
PREMISES
This Exhibit is attached to and made a part of the Lease by and between
PS BUSINESS PARKS, L.P., a California Limited Partnership ("Landlord") and
MCR PRINTING AND PACKAGING, a California Corporation ("Tenant") for suite
220 in the Building located at 0000 X. Xxxxxxxxxx, Xxxxxx, XX 00000.
map of building
EXHIBIT A-2
BUILDING, PROJECT AND PROPERTY
This Exhibit is attached to and made a part of the Lease by and between
PS BUSINESS PARKS, L.P., a California Limited Partnership ("Landlord") and
MCR PRINTING AND PACKAGING, a California Corporation ("Tenant") for suite
220 in the Building located at 0000 X. Xxxxxxxxxx, Xxxxxx, XX 00000.
Map of building
EXHIBIT B
TENANT IMPROVEMENT AGREEMENT
This Exhibit is attached to and made a part of the Lease by and between
PS BUSINESS PARKS, L.P., a California Limited Partnership ("Landlord") and
MCR PRINTING AND PACKAGING, a California Corporation ("Tenant") for suite
220 in the Building located at 0000 X. Xxxxxxxxxx, Xxxxxx, XX 00000.
Capitalized terms not otherwise defined in this Exhibit B shall have the
meaning given to such terms in the Lease of which this Exhibit B is a part.
1. In consideration of the mutual covenants contained in the Lease,
Landlord agrees to perform the following initial tenant improvement work
in the Premises ("Tenant Improvements")
DESCRIPTION OF TENANT IMPROVEMENTS
A. Professionally paint suite egg-shell white, utilizing building
standard quantities and finishes.
B. Steam-clean existing carpet.
2. All the Tenant Improvements described above, if any, shall be
performed by Landlord at its cost and expense using Building standard
materials and finishes and in the Building standard manner. All other work
and upgrades, subject to Landlord's approval, shall be at Tenant's sole
cost and expense, plus any applicable state sales or use tax thereon,
payable upon demand as additional rent. Tenant shall be responsible for
any delay in the completion of the Tenant Improvements resulting from any
such other work and upgrades requested or performed by Tenant. Landlord
shall enter into a direct contract for the Tenant Improvements with a
general contractor selected by Landlord. In addition, Landlord shall have
the right to select and/or approve of any subcontractors used in connection
with the Tenant Improvements.
3. Landlord shall deliver the Premises to Tenant with the Tenant
Improvements Substantially Complete. The Tenant Improvements shall be
deemed to be "Substantially Complete" on the date that all Tenant
Improvements have been performed, other than any details of construction,
mechanical adjustment or any other similar matter, the non-completion of
which does not materially interfere with Tenant's use of the Premises.
However, the parties hereby agree that if Landlord is delayed in the
performance of the Tenant Improvements as a result of any act or omission
of Tenant or any Tenant Entity (a "Tenant Delay"), including without
limitation a delay as a result of (a) Tenant's failure to agree to plans
and specifications and/or construction cost estimates or bids, (b) Tenant's
request for materials, finishes or installations with long lead times, (c)
Tenant's change in any plans or specifications, or (d) performance or
completion by a party employed by Tenant, then the Tenant Improvements
shall be deemed to be Substantially Complete on the date that Landlord
could reasonably have been expected to Substantially Complete the Tenant
Improvements absent any Tenant Delay and such date shall be deemed to be
the actual Commencement Date of the Lease.
4. Without limiting the "as-is" provisions of the Lease, Tenant
accepts the Premises in its "as-is" condition and acknowledges that
Landlord has no obligation to make any changes or improvements to the
Premises or to pay any costs expended or to be expended in connection with
any such changes or improvements, other than the Tenant Improvements
specified in Section 1 of this Exhibit B. Landlord's supervision or
performance of any work for or on behalf of Tenant shall not be deemed to
be a representation by Landlord that such work complies with applicable
insurance requirements, building codes, ordinances, laws or regulations or
that the improvements constructed will be adequate for Tenant's use.
5. This Exhibit B shall not be deemed applicable to any additional
space added to the Premises at any time or from time to time, whether by
any options under the Lease or otherwise, or to any portion of the original
Premises or any additions to the Premises in the event of a renewal or
extension of the original Term of the Lease, whether by any options under
the Lease or otherwise, unless expressly so provided in the Lease or any
amendment or supplement to the Lease. Tenant shall not perform any work
in the Premises (including, without limitation, cabling, wiring,
fixturization, painting, carpeting, replacements or repairs) except in
accordance with Article 9 of the Lease.
EXHIBIT C
RULES AND REGULATIONS
This Exhibit is attached to and made a part of the Lease by and between
PS BUSINESS PARKS, L.P., a California Limited Partnership ("Landlord") and
MCR PRINTING AND PACKAGING, a California Corporation ("Tenant") for suite
220 in the Building located at 0000 X. Xxxxxxxxxx, Xxxxxx, XX 00000.
Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety
and security, for care and cleanliness of the Building and the Project and
for the preservation of good order therein. Tenant agrees to abide by all
such Rules and Regulations herein stated and any additional rules and
regulations which are adopted.
Driveways, sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways shall not be obstructed by tenants or used by
tenants for any purpose other than for ingress to and egress from their
respective premises. The driveways, sidewalks, halls, passages, exits,
entrances, elevators and stairways are not for the use of the general
public and Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence, in the judgment of
Landlord, shall be prejudicial to the safety, character, reputation and
interests of the Building, the Property and its tenants, provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of
such tenant's business unless such persons are engaged in illegal
activities. No tenant, and no employees or invitees of any tenant,
shall go upon the roof of any Building, except as authorized by
Landlord.
No signs, advertisements or notices shall be painted or affixed to windows,
doors or other parts of the Building, except those of such color, size,
style and in such places as are first approved in writing by Landlord.
All tenant identification and suite numbers at the entrance to the
Premises shall be installed by Landlord, at Tenant's cost and expense,
using the standard graphics for the Building. Landlord shall have the
right to remove any such sign, placard, banner, picture, name,
advertisement, or notice without notice to and at the expense of Tenant,
which were installed or displayed in violation of this rule. All
approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person or
vendor approved by Landlord and shall be removed by Tenant at the time
of vacancy at Tenant's expense. Except in connection with the hanging of
lightweight pictures and wall decorations, no nails, hooks or screws
shall be inserted into any part of the Premises or Building except by
the Building maintenance personnel without Landlord's prior approval.
The directory of the Building or Property, if any, will be provided
exclusively for the display of the name and location of tenants only and
Landlord reserves the right to charge for the use thereof and to exclude
any other names therefrom.
No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung
or placed in, or used in connection with, any window or door on the
Premises without the prior written consent of Landlord. In any event
with the prior written consent of Landlord, all such items shall be
installed inboard of Landlord's standard window covering and shall in no
way be visible from the exterior of the Building. All electrical
ceiling fixtures hung in offices or spaces along the perimeter of the
Building must be fluorescent or of a quality, type, design, and bulb
color approved by Landlord. No articles shall be placed or kept on the
window xxxxx so as to be visible from the exterior of the Building. No
articles shall be placed against glass partitions or doors which
Landlord considers unsightly from outside Tenant's Premises.
Each tenant shall be responsible for all persons for whom it allows to
enter the Building or the Property and shall be liable to Landlord for
all acts of such persons. Landlord and its agents shall not be liable
for damages for any error concerning the admission to, or exclusion
from, the Building or the Property of any person. During the
continuance of any invasion, mob, riot, public excitement or other
circumstance rendering such action advisable in Landlord's opinion,
Landlord reserves the right (but shall not be obligated) to prevent
access to the Building and the Property during the continuance of that
event by any means it considers appropriate for the safety of tenants
and protection of the Building, property in the Building and the
Property.
Tenant shall not alter any lock or access device or install a new or
additional lock or access device or bolt on any door of its Premises,
without the prior written consent of Landlord. If Landlord shall give
its consent, Tenant shall in each case furnish Landlord with a key for
any such lock. Tenant, upon the termination of its tenancy, shall
deliver to Landlord the keys for all doors which have been furnished to
Tenant, and in the event of loss of any keys so furnished, shall pay
Landlord therefor.
The restrooms, toilets, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown into
them. The expense of any breakage, stoppage, or damage resulting from
violation of this rule shall be borne by the tenant who, or whose
employees or invitees, shall have caused the breakage, stoppage, or
damage.
Tenant shall not use or keep in or on the Premises, the Building or the
Property any kerosene, gasoline, or inflammable or combustible fluid or
material except in strict accordance with the terms of the Lease.
Tenant shall not use, keep or permit to be used or kept in its Premises
any foul or noxious gas or substance. Tenant shall not allow the
Premises to be occupied or used in a manner offensive or objectionable
to Landlord or other occupants of the Building by reason of noise, odors
and/or vibrations or interfere in any way with other tenants or those
having business therein. No animals, except those assisting handicapped
persons, shall be brought onto the Property or kept in or about the
Premises.
Except with the prior written consent of Landlord, Tenant shall not sell,
or permit the sale, at retail, of newspapers, magazines, periodicals,
theater tickets or any other goods or merchandise in or on the Premises,
nor shall Tenant carry on, or permit or allow any employee or other
person to carry on, the business of stenography, typewriting or any
similar business in or from the Premises for the service or
accommodation of occupants of any other portion of the Building, or the
business of a public xxxxxx shop, beauty parlor, nor shall the Premises
be used for any illegal, improper, immoral or objectionable purpose, or
any business or activity other than that specifically provided for in
such Tenant's Lease. Tenant shall not accept hairstyling, barbering,
shoeshine, nail, massage or similar services in the Premises or common
areas except as authorized by Landlord.
If Tenant requires telegraphic, telephonic, telecommunications, data
processing, burglar alarm or similar services, it shall first obtain,
and comply with, Landlord's instructions in their installation. The
cost of purchasing, installation and maintenance of such services shall
be borne solely by Tenant. Landlord will direct electricians as to
where and how telephone, telegraph and electrical wires are to be
introduced or installed. No boring or cutting for wires will be allowed
without the prior written consent of Landlord. The location of burglar
alarms, telephones, call boxes and other office equipment affixed to the
Premises shall be subject to the prior written approval of Landlord.
Tenant shall not install any radio or television antenna, satellite dish,
loudspeaker or any other device on the exterior walls or the roof of the
Building, without Landlord's consent. Tenant shall not interfere with
radio or television broadcasting or reception from or in the Building,
the Property or elsewhere.
Tenant shall not lay linoleum, tile, carpet or any other floor covering so
that the same shall be affixed to the floor of its Premises in any
manner except as approved in writing by Landlord. Tenant shall not
place a load upon any floor of its Premises which exceeds the load per
square foot which such floor was designed to carry or which is allowed
by law.
Tenant shall not operate or permit to be operated a coin or token operated
vending machine or similar device (including, without limitation,
telephones, lockers, toilets, scales, amusement devices and machines for
sale of beverages, foods, candy, cigarettes and other goods), except for
machines for the exclusive use of Tenant's employees and invitees.
Bicycles and other vehicles are not permitted inside the Building or on
the walkways outside the Building, except in areas designated by
Landlord.
Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the
Building or to any space therein to such a degree as to be objectionable
to Landlord or to any tenants in the Building shall be placed and
maintained by Tenant, at Tenant's expense, on vibration eliminators or
other devices sufficient to eliminate noise or vibration. The persons
employed to move such equipment in or out of the Building must be
acceptable to Landlord. Tenant shall not install, operate or maintain in
the Premises or in any other area of the Building, electrical equipment
that would overload the electrical system beyond its capacity for
proper, efficient and safe operation as determined solely by Landlord.
Tenant shall not furnish cooling or heating to the Premises, including,
without limitation, the use of electric or gas heating devices, without
Landlord's prior written consent. Tenant shall not use more than its
proportionate share of telephone lines and other telecommunication
facilities available to service the Building.
Each tenant shall store all its trash and garbage within the interior of
the Premises or as otherwise directed by Landlord from time to time.
Tenant shall not place in the trash boxes or receptacles any personal
trash or any material that may not or cannot be disposed of in the
ordinary and customary manner of removing and disposing of trash and
garbage in the city, without violation of any law or ordinance governing
such disposal.
Canvassing, soliciting, distribution of handbills or any other written
material and peddling in the Building and the Property are prohibited
and each tenant shall cooperate to prevent the same. No tenant shall
make room-to-room solicitation of business from other tenants in the
Building or the Property, without the written consent of Landlord.
Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and address of the Building
and the Property. Without the prior written consent of Landlord, Tenant
shall not use the name of the Building, Project or the Property or any
photograph or other likeness of the Building, Project or the Property in
connection with, or in promoting or advertising, Tenant's business
except that Tenant may include the Building's, Project's or Property's
name in Tenant's address.
Landlord may from time to time adopt systems and procedures for the
security and safety of the Building and Property, its occupants, entry,
use and contents. Tenant, its agents, employees, contractors, guests
and invitees shall comply with Landlord's systems and procedures. Tenant
shall comply with all safety, fire protection and evacuation procedures
and regulations established by any governmental agency. Tenant assumes
any and all responsibility for protecting its Premises from theft,
robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
No Tenant is allowed to unload, unpack, pack or in any way manipulate any
products, materials or goods in the common areas of the Property
including the parking and driveway areas of the Property. Movement in
or out of the Building of furniture or office equipment, or dispatch or
receipt by Tenant of merchandise or materials requiring the use of
elevators, stairways, lobby areas or loading dock areas, shall be
restricted to hours reasonably designated by Landlord. Tenant shall
obtain Landlord's prior approval by providing a detailed listing of the
activity, which approval shall not be unreasonably withheld. If
approved by Landlord, the activity shall be under the supervision of
Landlord and performed in the manner required by Landlord. Tenant shall
assume all risk for damage to articles moved and injury to any persons
resulting from the activity. If equipment, property, or personnel of
Landlord or of any other party is damaged or injured as a result of or
in connection with the activity, Tenant shall be solely liable for any
resulting damage, loss or injury. Tenant shall not make deliveries to
or from the Premises in a manner that might interfere with the use by
any other tenant of its premises or of the Common Areas, any pedestrian
use, or any use which is inconsistent with good business practice.
Smoking of any kind is strictly prohibited, at all times, at any location
on the Property, except in the designated smoking area which is located
at the OUTSIDE PERIMETER OF THE BUILDING ONLY. Landlord may relocate
the designated smoking area at its sole discretion, at any time during
the Term of this Lease.
Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations and the Parking Rules and Regulations set forth below
by Tenant's employees, agents, clients, customers, invitees and guests.
These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of any premises in the
Property. Landlord may waive any one or more of these Rules and Regulations
for the benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in
favor of any other tenant or tenants, nor prevent Landlord from thereafter
enforcing any such Rules and Regulations against any or all tenants of the
Building.
PARKING RULES AND REGULATIONS
1. Cars must be parked entirely within painted stall lines.
2. All directional signs and arrows must be observed.
3. All posted speed limits for the parking areas shall be observed. If
no speed limit is posted for an area, the speed limit shall be five (5)
miles per hour.
4. Parking is prohibited:
(a) in areas not striped for parking;
(b) in aisles;
(c) where "no parking" signs are posted;
(d) on ramps;
(e) in cross hatched areas; and
(f) in such other areas as may be designated by Landlord.
5. Handicap and visitor stalls shall be used only by handicapped
persons or visitors, as applicable.
6. Parking stickers or any other device or form of identification
supplied by Landlord from time to time (if any) shall remain the
property of Landlord. Such parking identification device must be
displayed as requested and may not be mutilated in any manner. The
serial number of the parking identification device may not be
obliterated. Devices are not transferable and any device may not be
obliterated. Devices are not transferable and any device in possession
of any unauthorized holder will be void. There will be a replacement
charge payable by the xxxxxx and such xxxxxx'x appropriate tenant equal
to the amount posted from time to time by Landlord for loss of any
magnetic parking card or any parking sticker.
7. Every xxxxxx is required to park and lock his or her own car. All
responsibility for damage to cars or persons is assumed by the xxxxxx.
8. Loss or theft of parking identification devices must be reported to
Landlord, and a report of such loss or theft must be filed by the xxxxxx
at that time. Any parking identification devices reported lost or stolen
found on any unauthorized car will be confiscated and the illegal holder
will be subject to prosecution. Lost or stolen devices found by the
xxxxxx must be reported to Landlord immediately to avoid confusion.
9. Parking spaces are for the express purpose of parking one
automobile per space. Washing, waxing, cleaning, or servicing of any
vehicle by the xxxxxx and/or such person's agents is prohibited. The
parking areas shall not be used for overnight or other storage for
vehicles of any type.
10. Landlord reserves the right to refuse the issuance of parking
identification or access devices to any tenant and/or such tenant's
employees, agents, visitors or representatives who willfully refuse to
comply with the Parking Rules and Regulations and/or all applicable
governmental ordinances, laws, or agreements.
11. Tenant shall acquaint its employees, agents, visitors or
representatives with the Parking Rules and Regulations, as they may be
in effect from time to time.
12. Any monthly rental for parking shall be paid one month in advance
prior to the first day of such month. Failure to do so will
automatically cancel parking privileges, and a charge of the prevailing
daily rate will be due. No deductions or allowances from the monthly
rental for parking will be made for days a xxxxxx does not use the
parking facilities.
13. Each xxxxxx shall pay a reasonable deposit for any parking card
issued to such a person. Such deposit shall be paid at the time the
parking card is issued and shall be forfeited if the parking card is
lost. Such deposit shall be returned without interest, at the time such
person ceases to utilize the parking facilities, upon surrender of the
parking card. A reasonable replacement charge shall be paid to replace
a lost card and an amount in excess of the initial deposit may be
charged as the replacement fee.
14. Vehicles parked in public parking areas will be no larger than
full-sized passenger automobiles or standard pick-up trucks. Landlord
reserves the right, without notice to Tenant, to tow away at Tenant's
sole cost and expense any vehicles parked in any parking area for any
continuous period of 24 hours or more, or earlier if Landlord, in its
sole discretion, determines such parking to be a hazard or inconvenience
to other tenants or Landlord, or violates any rules or regulations or
posted notices related to parking. Landlord shall not be responsible
for enforcing Tenant's parking rights against third parties. From time
to time, Landlord reserves the right, upon written notice to Tenant, to
change the location, the availability and nature of parking spaces,
establish reasonable time limits on parking, and, on an equitable basis,
to assign specific spaces with or without charge to Tenant as Additional
Rent.
15. Tenant shall at all times comply with all applicable Laws (as
defined in the Lease) respecting the use of the parking facility serving
the Building.
16. LANDLORD SHALL NOT BE LIABLE FOR ANY LOSS, INJURY OR DAMAGE TO
PERSONS USING THE PARKING FACILITY OR AUTOMOBILES OR OTHER PROPERTY
THEREIN, IT BEING AGREED THAT, TO THE FULLEST EXTENT PERMITTED BY LAW,
THE USE OF THE SPACES SHALL BE AT THE SOLE RISK OF TENANT AND ITS
EMPLOYEES. WITHOUT LIMITING THE FOREGOING, TENANT HEREBY VOLUNTARILY
RELEASES, DISCHARGES, WAIVES AND RELINQUISHES ANY AND ALL ACTIONS OR
CAUSES OF ACTION FOR PERSONAL INJURY OR PROPERTY DAMAGE OCCURRING TO
TENANT ARISING AS A RESULT OF PARKING IN THE PARKING FACILITY, OR ANY
ACTIVITIES INCIDENTAL THERETO, WHEREVER OR HOWEVER THE SAME MAY OCCUR,
AND FURTHER AGREES THAT TENANT WILL NOT PROSECUTE ANY CLAIM FOR PERSONAL
INJURY OR PROPERTY DAMAGE AGAINST LANDLORD OR ANY OF THE LANDLORD
RELATED PARTIES FOR ANY SAID CAUSES OF ACTION. IN ALL EVENTS, TENANT
AGREES TO LOOK FIRST TO ITS INSURANCE CARRIER AND TO REQUIRE THAT
TENANT'S EMPLOYEES LOOK FIRST TO THEIR RESPECTIVE INSURANCE CARRIERS FOR
PAYMENT OF ANY LOSSES SUSTAINED IN CONNECTION WITH ANY USE OF THE
PARKING FACILITY. TENANT HEREBY WAIVES ON BEHALF OF ITS INSURANCE
CARRIERS ALL RIGHTS OF SUBROGATION AGAINST LANDLORD OR LANDLORD RELATED
PARTIES.
17. Landlord hereby reserves the right to enter into a management
agreement or lease with another entity for the operation of the Parking
Facility ("Operator"). In such event, Tenant, upon request of Landlord,
shall enter into a parking agreement upon substantially the same terms
hereunder with the Operator and pay the Operator the monthly charge
established hereunder, and Landlord shall have no liability for claims
arising through acts or omissions of the Operator. It is understood and
agreed that the identity of the Operator may change from time to time
during the Term. In connection therewith, any parking lease or
agreement entered into between Tenant and any Operator shall be freely
assignable by such Operator or any successors thereto.
18. If Tenant defaults with respect to the same term or condition under
these Parking Rules and Regulations more than 3 times during any 12
month period, and Landlord notifies Tenant thereof promptly after each
such default, the next default of such term or condition during the
succeeding 12 month period, shall, at Landlord's election, constitute an
incurable default. Such cancellation right shall be cumulative and in
addition to any other rights or remedies available to Landlord at law or
equity, or provided under the Lease (all of which rights and remedies
under the Lease are hereby incorporated herein, as though fully set
forth). Any default by Tenant under these Parking Rules and Regulations
shall be a default under the Lease.
EXHIBIT D
OPERATING EXPENSES
This Exhibit is attached to and made a part of the Lease by and between
PS BUSINESS PARKS, L.P., a California Limited Partnership ("Landlord") and
MCR PRINTING AND PACKAGING, a California Corporation ("Tenant") for suite
220 in the Building located at 0000 X. Xxxxxxxxxx, Xxxxxx, XX 00000.
1. Operating Expenses. Throughout the Term, Tenant shall pay, as
Additional Rent, Tenant's Proportionate Share (of the Project, Property
and/or Building, as designated from time to time by Landlord) of the total
amount, if any, by which Operating Expenses (defined below) for each
calendar year during the Term exceed Operating Expenses for the Base Year
(the "Expense Excess") If Operating Expenses in any calendar year decrease
below the amount of Operating Expenses for the Base Year, Tenant's
Proportionate Share of Operating Expenses shall be $0.
1.01 "Operating Expenses" as used in the Lease shall include all
costs and expenses related to the ownership, management, operation,
maintenance, replacement, improvement and repair of the Premises, Building,
Project and/or Property, or any part thereof, incurred by Landlord
including but not limited to: (a) Property supplies, materials, labor,
equipment, and tools; (b) Utility and Service Costs (as further described
in Section 1.03 below), security, janitorial, trash removal, and all
applicable service and maintenance agreements; (c) Property related legal,
accounting, and consulting fees, costs and expenses, including but not
limited to the cost of contests of Real Property Taxes; (as further
described in Section 1.02 below); (d) Insurance Premiums for all policies
deemed necessary by Landlord and/or its lenders, and all deductible amounts
under such policies (as further described in Section 1.04 below); (e) costs
and expenses of operating, maintaining, and repairing the Property,
including but not limited to all interior areas and also driving, parking,
loading, and other paved or unpaved areas (including but not limited to,
resurfacing and striping and any snow and ice removal Landlord elects to
conduct), landscaped areas (including but not limited to, tree trimming),
building exteriors (including but not limited to, painting and roof work),
signs and directories, and lighting; (f) capital improvements and
replacements (including but not limited to, all financing costs and
interest charges); (g) compensation (including but not limited to, any
payroll taxes, worker's compensation for employees, and customary employee
benefits) of all persons, including independent contractors, who perform
duties, or render services on behalf of, or in connection with the
Property, or any part thereof, including but not limited to, Property
operations, maintenance, repair, and rehabilitation; (h) Property
management fees and the cost of providing space used by the Property
manager; and (i) Real Property Taxes.
1.02 "Real Property Taxes" shall include any fee, license fee, tax,
levy, charge, or assessment (hereinafter individually and/or collectively
referred to as "Tax") imposed by any authority having the direct or
indirect power to tax and where such Tax is imposed against the Property,
or any part thereof, or Landlord in connection with its ownership or
operation of the Property, including but not limited to: (a) any Tax on
rent or Tax against Landlord's business of leasing the Property; (b) any
Tax by any authority for services or maintenance provided to the Property,
or any part thereof, including but not limited to, fire protection,
streets, sidewalks, and utilities; (c) any Tax on real estate or personal
property levied with respect to the Property, or any part thereof, and any
fixtures and equipment and other property used in connection with the
Property; (d) any Tax based upon a reassessment of the Property due to a
change in ownership or transfer of all or part of Landlord's interest in
the Property; and, (e) any Tax replacing, substituting for, or in addition
to any Tax previously included in this definition. Real Property Taxes do
not include Landlord's federal or state net income taxes.
1.03 "Utility and Service Costs" shall include all Landlord
incurred utility and service costs and expenses, including, but not limited
to, costs related to water and plumbing, electricity, gas, lighting, steam,
sewer, waste disposal, and HVAC, and all costs related to plumbing,
mechanical, electrical, elevator, HVAC, and other systems.
1.04 "Insurance Premiums" shall include all insurance premiums for
all insurance policies maintained by Landlord from time to time related to
the Property.
1.05 Tenant's estimated payments of Expense Excess shall be made
monthly on or before the first day of each calendar month during the Term,
each in the amount of Landlord's then current estimate as outlined below.
Tenant's Proportionate Share of Expense Excess will be prorated for partial
months. All Operating Expenses will be adjusted, at the election of
Landlord, to reflect 95% occupancy during any calendar year in which the
Project is not fully occupied. If Operating Expenses for a calendar year
are determined as provided in the immediately preceding sentence, Operating
Expenses for the Base Year shall also be determined in such a manner.
1.06 Tenant's Proportionate Share of Expense Excess shall be
determined and paid as follows:
a. Tenant's Expense Excess estimates: As soon as is practical
following the end of each calendar year, Landlord will provide
Tenant with a determination of: (a) Tenant's annual share of
estimated Expense Excess for the then current calendar year; (b)
Tenant's monthly Expense Excess estimate for the then current
year; and, (c) Tenant's retroactive estimate correction billing
(for the period of January 1st through the date immediately
prior to the commencement date of Tenant's new monthly Expense
Excess estimate) for the difference between Tenant's new and
previously billed monthly Expense Excess estimates for the then
current year.
b. Tenant's Proportionate Share of actual annual Expense Excess:
Each year, Landlord will provide Tenant with a determination
reflecting the total Operating Expenses and Expense Excess for
the previous calendar year. If Tenant's estimated Expense
Excess billed for the previous calendar year is less than
Tenant's Proportionate Share of the actual Expense Excess for
the prior calendar year, Tenant shall pay to Landlord the
difference due on or before the due date provided in Landlord's
invoice to Tenant. If Tenant has paid more than its
Proportionate Share of Expense Excess for the preceding calendar
year, Landlord will credit the overpayment toward Tenant's
future Operating Expense obligations. Monthly Expense Excess
estimates are due on the 1st of each month and shall commence in
the month specified by Landlord. Tenant's retroactive estimate
correction, and actual annual Expense Excess charges, if any,
shall be due, in full, on the date(s) specified by Landlord.
2. Unless Landlord otherwise elects, Tenant shall pay each Expense
Excess in accordance with Tenant's Proportionate Share of the Building or
Tenant's Proportionate Share of the Project or the Property, whichever is
designated by Landlord. Landlord shall have the right to make allocations
("Allocations") to Tenant of any one or more Operating Expenses on a
different basis. Landlord shall have the right to make any such
Allocations in any manner which Landlord deems reasonable (including use
of estimates). For example, if Landlord deems it reasonable to do so,
Landlord shall have the right to elect at any time and from time to time
(a) to make any Allocation of one or more Operating Expenses based upon
Tenant's Proportionate Share of the Building and to make other Allocations
on Tenant's Proportionate Share of the Project or the Property, (b) to make
Allocations of certain Operating Expense items among less than all of the
tenants and/or other than based upon the respective square footages of the
tenants, (c) to make different Allocations for different Operating
Expenses, and/or (d) to alter an Allocation or the method of determining
an Allocation from time to time. In no event shall Landlord be liable to
Tenant based upon any incorrect or disputed Allocation nor shall Tenant
have any right to terminate the Lease by reason of any such Allocation.
3. Tenant, within 60 days after receiving Landlord's determination of
Operating Expenses, may give Landlord written notice ("Review Notice") that
Tenant intends to review Landlord's records of the Operating Expenses
(excluding Real Property Taxes) for the calendar year to which the
statement applies. Within a reasonable time after receipt of the Review
Notice, Landlord shall make all pertinent records available for inspection
that are reasonably necessary for Tenant to conduct its review. If any
records are maintained at a location other than the management office for
the Building, Tenant may either inspect the records at such other location
or pay for the reasonable cost of copying and shipping the records. If
Tenant retains an agent to review Landlord's records, the agent must be
with a CPA firm licensed to do business in the state where the Property is
located. Tenant shall be solely responsible for all costs, expenses and
fees incurred for the audit. Within 90 days after the records are made
available to Tenant, Tenant shall have the right to give Landlord written
notice (an "Objection Notice") stating in reasonable detail any objection
to Landlord's statement of Operating Expenses for that year. If Tenant
fails to give Landlord an Objection Notice within the 90-day period or
fails to provide Landlord with a Review Notice within the 60-day period
described above, Tenant shall be deemed to have approved Landlord's
determination of Operating Expenses and shall be barred from raising any
claims regarding Operating Expenses for that year. If Tenant provides
Landlord with a timely Objection Notice, Landlord and Tenant shall work
together in good faith to resolve any issues raised in Tenant's Objection
Notice. If Landlord and Tenant determine that Operating Expenses for the
calendar year are less than reported, Landlord shall provide Tenant with
a credit against the next installment of Tenant's Proportionate Share of
Operating Expenses in the amount of the overpayment by Tenant. Likewise,
if Landlord and Tenant determine that Operating Expenses for the calendar
year are greater than reported, Tenant shall pay Landlord the amount of any
underpayment within 30 days. The records obtained by Tenant shall be
treated as confidential. In no event shall Tenant be permitted to examine
Landlord's records or to dispute any statement of Operating Expenses unless
Tenant has paid and continues to pay all rent when due.
