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Exhibit 10.9
LEASE
THIS AGREEMENT OF LEASE made this 26th day of January, 1995, by and
between XXXXXXX X. XXXXXX and XXXXXX XXXXXX, herein called Lessor, and HORIZON
HIGH REACH, INC., A DELAWARE CORPORATION, herein called Lessee, both without
regard to number or gender,
WITNESSETH
Lessor agrees to, and does make and enter into, the following lease as
hereinafter set forth:
1. LEASED PREMISES: Lessor does hereby lease unto Lessee and Lessee does
hereby hire and take from Lessor the following described premises, situate in
the City of Fresno, County of Fresno, State of California; to wit:
0000 Xxxx Xxxx Xxxxxx
Xxxxx 000
(3,168 square feet as shown
on Exhibit "A" attached hereto)
subject to liens, encumbrances, building occupancy and other restrictions of
record, ordinances and regulations now or hereafter lawfully imposed thereon by
any government of agency thereof or in accordance with the terms of this lease:
2. TERM: To have and to hold said premises for a term of five (5) years,
commencing on the first day of September, 1995, and ending on the twenty-first
day of August, 2000:
3. RENTAL: Lessee promises and agrees to pay to Lessor, at such place or
places as may from time to time be designated by Lessor, monthly rental in the
following amounts for the following months of the term:
Period Monthly Rental
------ --------------
Months 01 - 12 $3,960.00
Months 13 - 48 $4,118.40
Months 49 - 60 $4,435.20
4. USE OF PREMISES: The above described premises are leased for the
purpose of conducting thereupon general office uses and for no other purpose or
purposes, and Lessee promises and agrees that he will, during the entire term
hereof, use the same for conducting thereupon the aforesaid business and will
occupy all said premises and cause the same to be open for business in the usual
and customary manner of similar businesses during the entire term hereof; and
will not permit the same to become vacant or unoccupied; and will not use, or
permit to be used, said premises or any part thereof for any sale by auction in
such manner as will increase the existing rate of insurance upon the building of
which these premises are a part, nor cause any cancellation of any insurance
policy covering said building (and said Lessee will pay any additional insurance
premium so caused as additional rent); nor hall Lessee sell, keep, use or permit
to be sold, kept, or used in or about said premises any article which may be
prohibited in the standard form of fire insurance policies. Lessee shall, at his
sole cost and expense, comply with any and all requirements, pertaining to said
premises, of any insurance organization or company, necessary for the
maintenance of reasonable fire and public liability insurance, covering said
building and appurtenances. Lessor reserves the right to the use of all exterior
walls and the roof of the
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demised premises and Lessee shall not inscribe, paint of affix any signs,
advertisements, placards or awnings upon the exterior walls or roof thereof or
upon the stairs, hallways, entrances, vestibules, marquees or windows thereof
without written consent of Lessor first hand and obtained therefor, and upon any
violation hereof Lessor may, in addition to all other remedies and claims for
damages, enter said premises and remove such signs, except Lessee may place upon
the front of said demised premises and upon the front windows thereof, such
signs as are customarily used in the conduct of like business, but such signs
shall not project from the front of said building.
5. COMPLIANCE WITH LAW: Lessee agrees that he will not use or permit said
premises to be sued for any unlawful purpose or for any purpose which will
injure the reputation of the same or the building of which these premises are a
part, nor will be disturb the other tenants of such building or neighborhood,
and he will, at his own expense, promptly observe and comply with all laws,
orders, regulations, rules, ordinances and requirements of Federal, State, and
County and City governments, or other lawful governmental bodies, or any of
their departments, bureaus or offices, and will effect all alterations or other
requirements exacted, directed or deemed necessary on account of Lessee's use of
said premises; and agrees to pay, at his own cost and expense, all claims,
fines, penalties and damages that may in any manner arise out of, or be imposed
because of, the failure of Lessee to comply with this covenant, and will save
Lessor harmless from any damage, injury, loss or claim, lawfully imposed or
recovered by reason of any breach of this agreement. The commencement or
pendency in any Court, whether State or Federal, of any abatement proceedings
effecting the use of said premises shall, at the option of Lessor, be deemed a
breach of this lease.
6. CONDITION OF PREMISES: By entry hereunder, Lessee acknowledges that
said premises and each and every part thereof, all window glass and other
glazing, electric globes, plumbing, heating and lighting fixtures, electric
wiring and the sewage system in and about said premises on the date of entry are
in good order, condition and repair and on the last day of the term hereof, or
on any sooner termination of this lease, Lessee will peaceably and quietly
surrender and yield up said premises to Lessor with all appurtenances and
fixtures in good order, condition and repair, reasonable use, wear, tear and
damage by the elements excepted, and in this behalf Lessee waives all statutory
rights imposing obligations upon Lessor to repair, and particularly waives the
provisions of Sections 1941 and 1942 of the Civil Code of the State of
California.
7. REPAIRS:
(A) LESSOR OBLIGATIONS: Lessor agrees that he will keep the roof and
exterior walls of the building of which these premises are a part in good order,
condition and repair and will maintain the sewer line from the demised premises
to the line of the property, on which the demised premises are situate, in good
order and repair, and maintain and repair any damage to said premises caused by
termites, other insects, fungus or rot, but shall not be liable to Lessee for
any damage occasioned by Lessor's failure to keep said premises in such repair
unless Lessee has notified Lessor of such failure to repair and Lessor has
failed to attempt to remedy such default, nor for any damage arising from any
acts or neglect of co-tenants or other occupants of said building or the owners
or occupants of any adjacent or contiguous property, and Lessee shall not be
entitled to any rebate from Lessor therefor.
(B) LESSOR OBLIGATIONS: Lessor promises, at his own cost, to keep said
demised premises in good and substantial order and repair in all respects other
than provided in Paragraph (A) hereof, including, but not limited to, floors,
vaults, windows and other glazing, plumbing, gas, water and sewer piping,
adjacent sidewalks, electric fixtures, pipe, wire conduits and all other
appurtenances in, on or connected with and used for the benefit or service of
the demised premises; and further agrees to replace and renew with like kind and
quality, any and all of said things that become too worn to be repaired, so that
at all times said premises and appurtenances shall be in good order, condition,
and repair.
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(C) ALTERATIONS: Lessee promises and agrees that he will not make or cause
to be made any alterations or improvements upon said premises, except upon the
written consent of Lessor first had and obtained. All alterations or
improvements to said premises shall remain for the benefit of Lessor and shall
not be removed unless otherwise expressly agreed in writing and shall be
presumed to become an integral part of said premises. Upon any termination of
this lease, any alterations or improvements theretofor made by Lessee, with or
without the consent of Lessor, which in the opinion of Lessor tend to detract
from the usability of said premises, shall upon written notice by Lessor be
removed by Lessee and said premises shall be restored, at Lessee's expense, to
the condition in which they were prior to the said alterations or improvements.
The above restrictions shall not include or apply to trade fixtures so
long as Lessee fully complies with each and every term, condition and covenant
herein contained and so long as said trade fixtures may be installed and removed
without damage or injury to said premises or any improvements thereof. Upon the
termination of this lease, provided all the conditions, covenants and agreements
herein have been fully complied with on the part of Lessee, all such trade
fixtures may be removed so long as such removal shall not in any way injure or
impair the condition of said premises. In no event shall Lessee have any power
or authority to do any act, or make or execute any contract or agreement that
may create or become the basis for any lien upon the present or other estate or
reversion of Lessor, and should any claim of such lien be made or filed, Lessee
shall cause the same to be discharged within ten days after the imposition
thereof.
8. UTILITY CHARGES AND TAXES: Lessor covenants and agrees to pay all
utility and municipal service charges levied, taxed, or charged against said
premises during the term of this lease. The Lessor shall be liable for all taxes
levied against personal property and trade fixtures placed by Lessor in, on or
about the herein demised premises (including, but without prejudice to the
generality of the foregoing, vaults, vault doors, wall safes, partitions,
machinery, and atmospheric coolers and/or heaters).
9. INJURY OR DAMAGE ON PREMISES: Lessee hereby assumes all risk for damage
to goods, wares and merchandise, in or upon said premises, during the term
hereof, from every source, and for injuries to persons in or about said premises
from any cause; and, as a material part of the consideration to be rendered to
Lessor, agrees to hold Lessor harmless from any and all claims, suits, actions,
damages or causes of action, all costs, counsel fees and expenses, including
costs of any investigations and the defense of any proceeding or action brought
thereon for injury to persons or damage to property, or loss of life, sustained
in, on or about said premises or the buildings or appurtenances thereto, or upon
the adjacent sidewalks, excepting only such damage, injury or claim as shall
result from the willful act or omission of Lessor; and agrees to further save
harmless the said Lessor from any orders, judgments or decrees that may be
entered in any such suit or action and, in this respect, Lessee promises and
agrees that he will secure, carry and maintain, at all times during the term of
this lease, at his cost, public liability insurance for the joint and several
protection and indemnity of Lessor and Lessee, in the principal sum of Five
Hundred Thousand Dollars ($500,000.00), combined single limits; provided,
however, that during the term said public liability insurance is in full force
and effect protecting Lessor fully from the above enumerated risks, the
provisions requiring Lessee to hold harmless are, to that extent, waived.
10. INSURANCE: Whenever Lessee is hereby required to insure against any
risk, said insurance shall be in an insurance company approved by the Lessor and
a copy of said policy or certificate of insurance shall be delivered to Lessor
with a commitment from the insurance carrier endorsed thereon to the effect that
said policy shall remain in full force and effect until Lessor is notified in
writing of any change thereof.
11. DESTRUCTION OF PREMISES: In the event said premises or the building of
which they are a part is completely destroyed from any cause, or is entirely
taken for public or quasi-public use by eminent domain or condemnation
proceedings (an agreed sale to a public or quasi-public
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corporation or utility after threat of condemnation shall constitute a public
taking as used herein), this lease shall thereupon cease; provided, however,
that if said premises can be repaired under the laws and regulations of all
governmental agencies thereunto applicable, using the same type of construction
within sixty (60) working days, then Lessor shall forthwith repair the same, in
which event such destruction or taking shall in nowise annul or void this lease,
but Lessee shall be entitled only to a proportionate reduction of rent from the
day of such destruction until said repairs are completed. If such repairs cannot
be made within said sixty (60) days or in the event such repairs cannot be made
using the same type of construction, under the laws and regulations of any
governmental agency thereunto applicable, this lease shall then terminate. In
respect to any partial destruction of said premises, the provisions of
Subdivision 2 of Section 1932, Subdivision 4 of Section 1933, and Section 1942
of the Civil Code of the State of California are hereby waived by Lessee.
In the event said building, of which the demised premises are a part, be
destroyed by act of God, fire or the elements, or taken for public or
quasi-public use by eminent domain or condemnation, to the extent of not less
than one-third (1/3) of the replacement cost thereof, Lessor may elect to
terminate this lease, whether the demised premises be injured thereby or not.
If said demised premises, in part or in whole, be taken or condemned for
public use, all compensation awarded upon such condemnation or taking shall be
directly paid to Lessor and Lessee shall have no claim thereto. Lessee does
hereby irrevocably assign and transfer to Lessor all rights and claim of Lessee
to compensation or damages to which he may become entitled during the term
hereof by reason of any condemnation. Upon any such condemnation title shall
vest in the condemnor, free and clear of this lease, the same terminating as to
the part so taken, and if, upon the completion of the repair thereof, the leased
premises are not equal to the premises as originally leased, then the rent
payable hereunder shall be adjusted in the proportion to which the same
interferes with the conduct of the business of Lessee upon said premises.
In the event of any dispute between Lessor and Lessee, relative in the
provisions of this paragraph, they shall each select an arbitrator, who shall
select a third arbitrator, and the three so chosen shall hear and determine the
dispute and any award made by any two of the three arbitrators so chosen shall
be conclusive and binding upon the parties hereto, who shall bear equally the
cost of such arbitration.
12. ASSIGNMENT: Lessee shall not assign or hypothecate this lease nor any
right granted him hereunder, nor sublet the demised premises or any part thereof
without the prior written consent of Lessor; such consent not to be unreasonably
withheld or delayed. No consent to any assignment of this or any subletting of
said premises shall be construed to be a waiver of the provisions hereof, except
only as to the specific instance covered by such consent; nor shall this lease
or any interest herein be assignable by operation of law.
Lessee agrees he will not file during the term hereof a petition in
bankruptcy or for extension or arrangement of his debts or composition with his
creditors, nor make an assignment for the benefit of his creditors, nor permit
his interest in the demised premises to become subject to any proceeding,
whether in Federal or State courts, wherein a receiver, custodian, conservator
or other officer is appointed to hold, conserve, manage or operate Lessee's
business; and any assignment by operation of law or the filing of any petition
in bankruptcy, or for extension or arrangement of his debts or composition with
his creditors, whether voluntary or involuntary, or the appointment of any
receiver, custodian, or other officer in any proceeding in any court wherein the
possession, management or control of premises herein demised is in any person
other than Lessee, shall terminate this lease and any and all rights which
Lessee may have by reason hereof, and Lessor shall bc entitled to recover, in
addition to possession of said premises, damages in a sum equal to all expenses
to which Lessor may be put in regaining possession of said premises and the
amount of the rent reserved for the remainder of the term hereof, less the fair
rental value for the remainder of said term.
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13. DEFAULT: The occurrence of any of the following shall constitute a
default by Lessee:
1. Failure to pay rent when due, if the failure continues for ten (10)
days after notice thereof has been given to Lessee.
2. Abandonment and vacation of the Premises (failure to occupy and operate
the Premises for sixty (60) consecutive days shall be considered an abandonment
and vacation).
3. Failure to perform any other provision of this Lease if the failure to
perform is not cured within thirty (30) days after notice thereof has been given
to Lessee. If the default cannot reasonably be cured within thirty (30) days,
Lessee shall not be in default of this Lease if Lessee commences to cure the
default within the thirty (30) days period and diligently and in good faith
continues to cure the default.
The purpose of the notice requirement set forth in this Section is to
extend the notice requirements of the unlawful detainer statute of California by
substituting the above time periods for the statutory time period.
Notice given under this paragraph shall specify the alleged default and
the applicable lease provisions of this Lease and demand that Lessee cure the
default or pay the rent that is in arrears, as the case may be, within the
applicable period of time, or quit the Premises. No such notice shall be deemed
a forfeiture or a termination of this Lease unless Lessor so elects in the
notice.
14. LESSOR'S REMEDIES: Lessor shall have the following remedies if Lessee
commits a default. These remedies are not exclusive; they are cumulative in
addition to any remedies now or later allowed by law.
A. Lessor can continue this Lease in full force and effect, and the lease
will continue in effect as long as Lessor does not terminate Lessee's right to
possession, and Lessor shall have the right to collect rent when due. During the
period Lessee is in default, Lessor can enter the Premises and relet them, or
any part of them, to third parties for Lessee's account. Lessee shall be liable
immediately to Lessor for all reasonable costs Lessor incurs in reletting the
Premises, including, without limitation, broker's commissions, expenses of
remodeling the Premises required by the reletting, and like costs. Reletting can
be for a period shorter or longer than the remaining term of this Lease. Lessee
shall pay to Lessor the rent due under this Lease on the dates the rent is due,
less the rent Lessor receives from any reletting. No act by Lessor allowed by
this paragraph shall terminate this Lease unless Lessor notifies Lessee that
Lessor elects to terminate this Lease.
If Lessor elects to relet the premises as provided in the paragraph, rent
that Lessor receives from reletting shall be applied to the payment of:
First, any indebtedness from Lessee to Lessor other than rent due from
Lessee;
Second, all reasonable costs, including for maintenance, incurred by
Lessor in reletting;
Third, rent due and unpaid under this Lease. After deducting the payments
referred to in this paragraph, any sum remaining from the rent Lessor receives
from reletting shall be held by Lessor and applied in payment of future rent as
rent becomes due under this Lease. In no event shall Lessee be entitled to any
excess rent received by Lessor. If, on the date rent is due under this lease,
the rent received from the reletting is less than the rent due on that date,
Lessee shall pay to Lessor, in addition to the remaining rent due all costs,
including for maintenance, Lessor incurred in reletting that remain after
applying the rent received from the reletting as provided in this Section.
X. Xxxxxx can terminate Lessee's right to possession of the premises at
any time. No act by Lessor other than giving notice to Lessee shall terminate
this Lease. Acts of maintenance, efforts to relet the Premises, or the
appointment of a receiver on Lessor's initiative to protect Lessor's interest
under this Lease shall not constitute a termination of Lessee's right to
possession. On termination, Lessor has the right to recover from Lessee:
1. The worth, at the time of the award of the unpaid rent that had been
earned at the time of termination of this Lease.
2. The worth, at the time of the award of the amount by which the unpaid
rent that would have been earned after the date of termination of this Lease
until the time of award exceeds the amount of the loss of rent that Lessee
proves could have been reasonably avoided;
3. The worth, at the time of the award of the amount by which the unpaid
rent for the balance of the term after the time of award exceeds the
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[PAGE MISSING FROM ORIGINAL]
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20. WAIVER: Time is agreed to be the essence of this agreement and any
waiver by Lessor of the prompt and punctual performance of any term, condition,
or covenant hereof shall not be construed to be a waiver of the prompt and
punctual performance of the same or any other term, condition or covenant
subsequently when due.
21. MERGER. The voluntary or other surrender of this lease by Lessee, or a
mutual cancellation hereof shall not work a merger, and shall, at the option of
the Lessor, terminate all or any existing sub-leases or subtenancies or shall
operate as an assignment to him of such sub-leases or subtenancies.
22. SUCCESSION: This lease and each of its terms, subject to the
provisions relating to assignments, shall apply to and bind the heirs,
successors, executors, administrators and assigns of the parties hereto and all
parties hereto shall be jointly and severally liable hereunder.
23. QUIET ENJOYMENT: Lessor covenants with Lessee that upon Lessee's entry
into said premises and his performance of each of the terms of the lease, on his
part to be performed, Lessee shall have full freedom and use of said premises in
accordance with the terms hereof and quietly enjoy the same without lawful claim
on the part of any person.
24. HOLDING OVER: Any holding over after the expiration of the term hereof
with the consent of Lessor shall be a tenancy from month to month, terminable
only upon thirty (30) days' written notice from either party to the other, upon
each and every of the other terms, conditions and covenants herein insofar as
the same may be applicable. Rent shall be at the then current rate per month,
payable in advance.
25. PLATE GLASS: Lessee shall carry plate glass insurance at the full
insurable value thereof on all exterior plate glass.
26. TAX ACCELERATION: Lessee agrees to pay to Lessor when due, that
portion of any increase of Real Property Taxes over the present 1994-1995 taxes
assessed against the entire premises owned by Lessor (being the subject building
and its parking lot) as the total square footage leased hereunder bears to the
total square footage of the entire premises.
27. OPERATING COSTS: Lessee agrees to pay the Lessor as additional rent
any increase in recurring building operating costs (including but not limited to
utilities, fuel, building supplies, janitorial and insurance) paid by Lessor
during any year of the lease over and above such operating costs paid by Lessor
in the 1995 calendar year in proportion that the space Lessee occupies bears to
the total space in the complex.
28. SUBSTITUTE TAXES: Tenant shall not be required to pay any municipal,
county, state, or federal income or franchise taxes of Landlord, or any
municipal, county, state, or federal estate, succession, inheritance, or
transfer taxes of Landlord. If at any time during the term the laws concerning
the methods of real property taxation prevailing at the commencement of the term
are changed so that a tax or excise on rents or any other such tax, however
described, is levied or assessed against Landlord as a direct substitution in
whole or in part for any real property taxes. Tenant shall pay before
delinquency (but only to the extent that it can be ascertained that there has
been a substitution and that as a result Tenant has been relieved from the
payment of real property taxes it would otherwise have been obliged to pay) the
substitute tax or excise on rents. Tenant's share of any tax or excise on rent
shall be substantially the same as, and a substitute for, the payment of such
real property taxes as provided in this lease.
29. TENANT IMPROVEMENTS: As soon as reasonably practical but no later than
August 31, 1995, Lessor, at its sole cost and expense shall remodel the premises
in accordance with the plan attached hereto as Exhibit A. In addition, Lessor
will recarpet and repaint the 1,152 easterly square feet to match the carpet and
paint in the westerly portion of the premises. Lessor shall construct such
interior improvements with as little interference with Lessee's business
operations as possible.
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30. EXISTING SUBLEASE: It is acknowledged that Lessee currently occupies
the westerly 2,106 square feet of the premises under a Sublease dated June 16,
1993, which expires on April 30, 1995. Until Lessor's work under Section 29 is
completed, lessee shall be allowed to continue to occupy this area of the
premises at the rental set forth in said Sublease of $2,016,000 per month. The
rent due hereunder will not commence until all of Lessor's work is completed and
the entire premises are available for Lessee's occupancy.
IN WITNESS WHEREOF, the parties hereto have executed this agreement in duplicate
the day and year first above written.
ADDRESS OF LESSOR: 000 Xxxx Xxxx Xxxxxx, Xxxxx X-0
Xxxxxx, Xxxxxxxxxx 00000
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx Xxxxxx
-------------------------------------- --------------------------------------
XXXXXXX X. XXXXXX, LESSOR XXXXXX XXXXXX, LESSOR
ADDRESS OF LESSEE: 0000 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
HORIZON HIGH REACH, INC.
By: /s/ Xxxxxxx Xxxxxx
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Its: CHIEF FINANCIAL OFFICER
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