FIRST AMENDMENT TO LEASE
This First Amendment to Lease is dated November 5, 1992, between RREEF WEST-VI,
a California Group Trust, successor in interest to Xxxxxxx Ridge Park, a
California General Partnership, (Lessor), whose address is 0000-X Xxxxxxx Xxxxx,
Xxx Xxxxx, XX 00000, and Elgar Electronics Corporation, a California
Corporation, also known as Elgar Corporation, a California Corporation
("Lessee"), whose address is 0000 Xxxxx Xxxx Xxxx, Xxx Xxxxx, XX 00000 agree as
follows:
1. RECITALS. This amendment to lease is made with reference to the following
facts and objectives:
a. Lessor and Lessee entered into a written lease dated February 1,
1984 (the "Lease"), in which Lessor leased to Lessee, and Lessee
leased from Lessor, premises located in the County of San Diego,
State of California, commonly known as 0000 Xxxxx Xxxx Xxxx, Xxx
Xxxxx, XX 00000 (the "leased premises"), and further described as
approximately 87,314 sq. ft. shown on Exhibit A attached hereto
and made a part hereof.
b. The term of this Lease expires July 31, 1994.
c. The parties desire to amend the existing lease and extend the
term of the lease as set forth in Section 2 below.
2. EXTENSION OF TERM. Notwithstanding anything to the contrary otherwise stated
in this Lease, the term of the Lease shall be extended for an additional period
of ten (10) years from and after January 1, 1993, so that the term of the Lease
shall extend to and include December 31, 2002.
3. Section 4.1 and 4.2 of the Lease entitled Monthly Rental and Rental
Adjustment, respectively, are deleted in their entirety and replaced with the
following:
4.1 MINIMUM MONTHLLY RENT. Minimum monthly rent for the extended term shall be
as follows:
Rent for the period 01/01/93-12/31/93 shall be $43,657.00 monthly.
Rent for the period 01/01/94-12/31/94 shall be $45,185.00 monthly.
Rent for the period 01/01/95-12/31/95 shall be $46,766.00 monthly
Rent for the period 01/01/96-12/31/96 shall be $48,403.00 monthly.
Rent for the period 01/01/97-12/31/97 shall be $50,097.00 monthly.
Rent for the period 01/01/98-12/31/98 shall be $51,851.00 Monthly
Rent for the period 01/01/99-12/31/99 shall be $53,666.00 monthly.
Rent for the period 01/01/2000-12/31/2000 shall be $55,544.00 monthly.
Rent for the period 01/01/2001-12/31/2001 shall be $57,488.00 monthly.
Rent for the period 01/01/2002-12/31/2002 shall be $59,500.00 monthly.
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Fixed monthly rental shall be payable in advance, without prior notice or
demand and without set-off or deduction, in lawful money of the United
States of America and paid on the first) day of each and every calendar
month during the term hereof.
4. Section 3.2 of the Lease entitled Option to Renew is deleted in its
entirety and replaced with the following:
3.2. RENEWAL OPTION. Lessee shall, provided the Lease is in full force and
effect and Lessee is not in default under any of the other terms and
conditions of the Lease at the time of notification or commencement, have
one (1) successive option to renew this Lease for a term of five (5) years,
for the portion of the leased premises being leased by Lessee as of the
date the renewal term is to commence, on the same terms and conditions set
forth in the Lease, except as modified by the terms, covenants and
conditions as set forth below:
(a) If Lessee elects to exercise said option, then Lessee shall
provide Lessor with written notice no earlier than the date which is
360 days prior to the expiration of the then current term of the Lease
but no later than the date which is 120 days prior to the expiration
of the current term of the Lease, and the Annual Rent and Monthly
Installment in effect at the expiration of the then current term of
the Lease shall he increased, commencing oil the first day of the new
renewal term, to reflect the adjusted rental rate as calculated below.
If Lessee falls to provide such notice, Lessee shall have no further
or additional right to extend or renew the term of the Lease. The
notice shall be given in the manner provided in the Lease for the
giving of notices to Lessor.
(b) The option period rental rate ("Adjusted Rental Rate") shall
be the first year rental rate of $43,657.00 multiplied times 95* of
the factor which has as its denominator the CPI Index (Los
Angeles/Anaheim/ Riverside, All Urban Consumers) ("Index") for
September, 1992 and has as its numerator the Index for September,
2002. The Adjusted Rental Rate will be increased three and one-half
(3.5%) percent per annum in Years 2-5 of the option term. In no event
shall the Adjusted Rental Rate be less than the rental rate in effect
at the expiration of the initial lease term.
(c) This option is not transferable; the parties hereto
acknowledge and agree that they intend that the aforesaid option to
renew this Lease shall be "personal" to Lessee as set forth above and
that in no event will any assignee or sublessee have any rights to
exercise the aforesaid option to renew.
5. Section 6.1 of the Lease entitled Use is deleted in its entirety and
replaced with the following:
6.1 USE. The leased premises shall be used and occupied only for
manufacturing, warehousing and distributing electronic parts and for
related administrative offices or any other use, which is reasonably
comparable, and for no other purpose. Lessee shall comply
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with all governmental laws, ordinances and regulations applicable to the
use of the leased premises and its occupancy and shall promptly comply with
all governmental orders and direction for the correction, prevention and
abatement of any violations in or upon, or in connection with, the leased
premises, all at Lessee's sole cost and expense. Lessee shall not use nor
permit the use of the leased premises in any manner that will tend to
create waste or a nuisance.
6. HAZARDOUS MATERIALS.
(a) Lessee agrees that Lessee, its agents and contractors, licensees, or
invitees shall not handle, use, manufacture, store or dispose of any
flammables, explosives, radioactive materials, hazardous wastes or
materials, petroleum products or derivatives (collectively "Hazardous
Materials") on, under, or about the leased premises, except in compliance
with all laws relating to any Hazardous Materials so brought or used or
kept in or about the leased premises. Annually during t1je lease term,
Lessee shall provide Lessor with a written list of Hazardous Materials used
in connection with its manufacturing operations on the leased premises.
(b) Lessee shall secure and comply with all permits necessary for Lessee's
operations on the leased premises. Lessee shall give or post all notices
required by all applicable laws pertaining to Hazardous Materials. If
Lessee shall at any time fail to comply with this Paragraph, Lessee shall
promptly notify Lessor in writing of such noncompliance.
(c) Lessee shall not store Hazardous Materials on the premises for more
than 90 days unless such storage is in compliance with applicable laws;
"hazardous waste" has the meaning given it by the Resource Conservation and
Recovery Act of 1976, as amended. Lessee and Lessor acknowledge there is an
existing 550-gallon single-walled underground diesel fuel tank, which shall
be operated in compliance with all applicable laws. Lessee shall not
install any other underground storage tanks on the leased premises, and any
above ground storage tanks shall be operated in compliance with law
including without limitation any double-containment requirements. Lessee
shall not dispose of any Hazardous Materials on the leased premises. In
performing any alterations of the leased premises permitted by the Lease,
Lessee shall not install any Hazardous Material in the leased premises
without the specific consent of Lessor attached as an exhibit to this Rider
which consent shall not be unreasonably withheld.
(d) Any increase in the premiums for necessary insurance on the Property,
which arises from Lessee's use, and/or storage of Hazardous Materials shall
be solely at Lessee's expense. Lessee shall procure and maintain at its
sole expense such additional insurance as may be necessary to comply with
any requirement of any Federal, State or local governmental agency with
jurisdiction.
(e) If Lessor, in its sole discretion, reasonably believes that the leased
premises have become contaminated with Hazardous Materials that must be
removed under the laws of the state where the leased premises are located,
as a result of a breach by Lessee under the provisions of this Lease,
Lessor, in addition to its other rights under this Lease, may enter
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upon the leased premises and obtain samples from the leased premises,
including without limitation the soil and groundwater under the leased
premises, for the purposes of analyzing the same to determine whether and
to what extent the leased premises have become so contaminated provided,
however, that such action shall not unreasonably disrupt the Lessee's
operations at the premises. If such testing discloses that, there exists
contamination for which Lessee is liable under the Lease, and if Lessee
refused Lessor's prior request to conduct such testing, then Lessee shall
reimburse Lessor for its reasonable costs of such testing. Lessee may not
perform any sampling, testing, or drilling to locate any Hazardous
Materials on the leased premises without Lessor's prior written consent
unless Lessee is required by law, rule or order.
(f) Without limiting the above, Lessee shall reimburse, defend, indemnify
and hold Lessor harmless from and against any and all claims, losses,
liabilities, damages, costs and expenses, including without limitation,
loss of rental income, loss due to business interruption, and attorneys
fees and costs, arising out of or in any way connected with the use,
manufacture, storage, or disposal of Hazardous Materials by Lessee, its
agents or contractors on, under or about the leased Premises including,
without limitation, the costs of any required or necessary investigation,
repair, cleanup or detoxification and the preparation of any closure or
other required plans in connection herewith, whether voluntary or compelled
by governmental authority. The indemnity obligation of Lessee under this
clause shall survive any termination of the Lease. Lessee shall perform any
required or necessary investigation, repair, cleanup, or detoxification of
the leased premises. In such case, Lessor shall have the right to approve
all plans and consultants, provided the Lessor's approval rights shall not
supersede any government regulations. Lessee shall provide Lessor on a
timely basis with (I) copies of all documents, reports, and communications
with governmental authorities; and (ii) notice and an opportunity to attend
all meetings with regulatory authorities. Lessee shall comply with all
notice requirements and Lessor and Lessee agree to cooperate with
governmental authorities seeking access to the leased premises for purposes
of sampling or inspection. No disturbance of Lessee's use of the leased
premises resulting from activities conducted pursuant to this Paragraph
shall constitute an actual or constructive eviction of Lessee from the
leased premises.
(g) Notwithstanding anything set forth in this Lease, Lessee shall only be
responsible for contamination of Hazardous Materials or any cleanup
resulting directly therefrom, resulting directly from matters occurring or
Hazardous Materials deposited by Lessee (or by contractors, invitees,
agents or representatives of Lessee) during the Lease term, and any other
period of time during which Lessee is in actual or constructive occupancy
of the leased premises. Lessee shall take reasonable precautions to prevent
the contamination of the Premise with Hazardous Materials by third parties.
(h) It shall not be unreasonable for Lessor to withhold its consent to any
proposed assignment or sublease if (i) the proposed assignee's or
sublessee's anticipated use of the leased premises involves the generation,
storage, use, treatment or disposal of Hazardous Materials; in a materially
different manner or magnitude as Lessee's (ii) the proposed
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assignee or sublessee has been required by any prior landlord, lender, or
governmental authority to take remedial action in connection with Hazardous
Materials contaminating a property if the contamination resulted from such
assignee's or sublessee's actions or use of the property in question; or
(iii) the proposed assignee or sublessee is subject to an enforcement order
issued by any governmental authority in connection with the use, disposal
or storage of a Hazardous Material; and with respect to clauses (ii) and
(iii) , that the circumstances giving rise to such requirement of remedial
action or such enforcement order and Assignee's response thereto reasonably
and adversely reflect upon Assignee's capacity to conduct its operations on
the leased premises in a responsible manner so as to reasonably ensure that
no such remedial action is required or order is issued with respect to
Assignee's activities on the leased premises, or if such remedial action is
required or order is issued, that Assignee will respond thereto in a
responsible manner.
(i) If any of Lessee's insurance insures against claims of the type dealt
with in this Rider shall be considered primary coverage for claims against
the Property arising out of or under this paragraph.
(j) In the event of (i) any transfer of Lessee's interest under this
Lease; or (ii) the termination of this Lease, by lapse of time or
otherwise, Lessee shall be solely responsible for compliance with any and
all then effective federal, state or local laws concerning the presence of
Hazardous Materials in or on the leased premises, Building, or Property
(for example, the New Jersey Environmental Cleanup Responsibility Act, the
Illinois Responsible Property Transfer Act, or similar applicable state
laws), including but not limited to any reporting or filing requirements
imposed by such laws.
All consents given by Lessor pursuant to this Rider shall be in writing and
shall be attached as amendments to this Rider
7. Section 8.1 of the Lease entitled Liability Insurance is deleted in its
entirety and replaced with the following:
8.1 LIABILITY INSURANCE. Lessee shall, during the entire term hereof, at
its sole cost and expense, obtain and keep in full force and effect a
policy of Combined Single Limit, Bodily Injury and Property Damage
Insurance with respect to the leased premises, the sidewalks in front of
the leased premises, and the business operated by Lessee and any subtenants
of Lessee in the, leased Premises in which the limits of Public liability
shall be not less than $3,000,000 per occurrence, with an annual aggregate
of $3,000,000. The policy shall contain cross liability endorsements and
shall insure performance by Lessee of the indemnity provisions of this
Section 8. The policy shall name Lessee as insured and Lessor, any person,
firms or corporations designated by Lessor as an additional insured, and
shall contain a clause that the insurer will not cancel or change the
insurance without first giving the Lessor thirty (30) days prior written
notice. The insurance shall be in an insurance company approved by Lessor,
with general policy holder's rating of not less than "A" and financial
ratings of not less than Class X, as rated in the most current available
Best Rating Guide, and which are qualified to do business in the state of
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California, and a copy of the policy or a certificate of insurance shall be
delivered to Lessor. Not more frequently than each five (5) years, if, in
the reasonable opinion of Lessor, the amount of liability insurance
required hereunder is inadequate, Lessee shall increase said insurance
coverage as required by Lessor, but in no event by more than $2,000,000 in
each five year period. If Lessee installs and uses a boiler 017 the leased
premises, it shall obtain boiler broad form insurance in a reasonable
amount in the name of Lessor and Lessee.
8. Section 8.2 of the Lease entitled Property Insurance is deleted in its
entirety and replaced with the following:
8.2 PROPERTY INSURANCE. Lessee shall, during the entire term hereof ' at
its sole cost and expense, obtain and keep in full force and effect a
policy or policies of insurance covering loss or damage to the leased
premises, in the amount equal to the actual replacement cost of the
insurable portion of the leased premises at the time of loss, against all
perils included within the classification of fire, extended coverage,
vandalism, malicious mischief, special extended perils (all risk) and
sprinkler leakage. Said insurance shall be in an insurance company approved
by Lessor, with general policy holder's rating of not less than "A" and
financial ratings of not less than Class X, as rated in the most current
available Best Rating Guide, and which are qualified to do business in the
state of California, and shall provide for payment of loss thereunder to
Lessor or to the holder of a first mortgage or deed of trust encumbering
Lessor's interest in the leased premises or any portion thereof. If Lessee
shall fail to procure and maintain said insurance, Lessor may, but shall
not be required to, procure and maintain the same, but at the expense of
Lessee; bills for above premiums shall be rendered by Lessor to Lessee, and
shall be due from, and payable by Lessee when rendered, and the amount
thereof shall be deemed to be, and be paid as, additional rent.
9. IMPROVEMENTS TO THE LEASED PREMISES. Lessor will undertake the following
improvements to the leased premises:
(a) Lessor will slurry seal the entire parking lot at the leased premises
one time and one time only and concurrently will repair one time and one
time only, as required, in the exercise of Lessor's sole and absolute
discretion, any portion of the parking lot at the leased premises requiring
repair, within twenty-four (24) months of execution of this First Amendment
to Lease upon sixty (60) days written notice from Lessee.
(b) The carpeting on the ground floor will be removed and replaced with
similar quality carpet at any time within the next twenty-four (24) months
upon sixty (60) days written notice from Lessee.
(c) The office area will be repainted with one (1) coat of building
standard paint one time during the lease term upon sixty (60) days written
notice from Lessee.
(d) Lessee agrees to fully cooperate with Lessor in providing access to the
leased premises during normal business hours for construction of the agreed
upon improvements
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at the leased premises. Lessor shall use reasonable efforts not to
unreasonably interfere with Lessee's business at, the Leased premises while
constructing the agreed upon improvements at the leased premises. Lessee
agrees to hold Lessor harmless and indemnify Lessor from any and all claims
for damages to goods, equipment, personal injury or for inconvenience or
interruption of Lessee's business arising out of the construction of the
agreed upon improvements at the leased premises. Lessee agrees to execute
upon presentment from Lessor a written acknowledgment confirming that all
of agreed upon improvements to the leased premises have been satisfactorily
completed by Lessor.
10. Section 18.1(a) of the Lease is deleted in its entirety and replaced by the
following:
18.1(a) DEFAULT. The failure by Lessee to make any payment of rent or any
other payment required to be made by Lessee hereunder, as and when due when
such failure shall continue for a period of three (3) days after written
notice thereof from Lessor to Lessee. In the event that Lessor serves
Lessee with a Notice to Pay Rent or Quit pursuant to applicable Unlawful
Detainer statutes such Notice to Pay Rent or Quit shall also constitute the
notice required by this subparagraph.
11. Section 22.4 of the Lease is deleted in its entirety and replaced by the
following:
22.4 FURNISHING OF FINANCIAL STATEMENTS; LESSEE'S REPRESENTATIONS. In order
to induce Lessor to enter into this First Amendment to Lease, Lessee agrees
that it shall promptly furnish Lessor, from time to time, but in no event
more frequently than twice per calendar year, within twenty (20) days of
Lessor's written request, with a mid-year report and an annual report,
which shall be accurate in all material respects, reflecting Lessee's
current financial condition and, at the election of Lessor, an interim
report and annual report, which shall be accurate in all material respects,
of the Guarantor, Xxxxxx Park Industries plc. Lessor agrees to hold said
financial statements and reports in confidence except that the Lessor
specifically reserves the right to provide the same to any potential
purchaser of the leased premises or any potential or then existing lender
of Lessor.
12. Section 22.8 of the Lease is deleted in its entirety and replaced by the
following:
22.8 NOTICES. Except as otherwise required by law, any notice, information,
request or reply ("Notice" for purposes of this Section 22.8 only) required
or permitted to be given under the provisions of this Lease shall be in
writing and shall be given or served either personally or by mail. If given
or served by mail, such Notice shall be deemed sufficiently given if (a)
deposited in the United States Mail, Certified, Return Receipt Requested,
Postage Prepaid; or (b) sent by Federal Express Mail or other similar
overnight service, provided proof of service is available. Any Notice given
or served by mail shall be deemed delivered twenty-four (24) hours after
deposit in the mail. The Notice address for Lessor shall be 0000-x Xxxxxxx
Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 92.123. The Notice address for the Lessee
shall be the -leased premises. A copy of all Notices required or permitted
to be given to Lessor hereunder shall he concurrently transmitted to
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such party or parties at such addresses as Lessor may from time to time
hereafter designate by written notice to Lessee.
13. The following paragraph shall be added to the end of Section 15 of the
Lease.
15.4 CONTEST OF REAL PROPERTY TAXES. Lessee shall have the right, at its
own cost and expense, to seek to have reviewed, reduced, equalized or
abated any real property taxes payable hereunder, but Lessee shall pay
under protest prior to it becoming delinquent any such real property taxes
or installments thereof during such time as Lessee is contesting or
Protesting the same or seeking to have the same reviewed, reduced,
equalized or abated; provided, however, that Lessee shall take such steps
as may be required to perfect the contest, including, but without
limitation, payment of the real property taxes under protest prior to an
appeal of an adverse determination of the contest. Lessee shall also pay
any interest and/or penalties which may have accrued on the real property
taxes contested as well as any other item or real property taxes shown on
the same tax xxxx which could not be paid pending the contest. If necessary
to enable Lessee to prosecute any contest, review or proceedings, Lessor,
without any obligation to incur "out of pocket" costs or expenses, shall
join with Lessee and execute any and all documents, applications,
petitions, instruments or complaints necessary for any such protest,
contest, review or other proceedings reasonably desired or conducted by
Lessee. Upon final determination of any such contest, review or proceedings
(and if the real property taxes have not already been paid under protest by
Lessee), Lessee shall pay the real property taxes as they are finally
determined and all penalties, interest, costs and expenses which may
thereupon be due or have resulted therefrom. Lessee shall indemnify and
hold Lessor and the property of Lessor, including the leased premises, free
and harmless from any liability, loss or damage (including reasonable
attorneys' fees) resulting from any real property taxes, assessments or
other charges required by this Section to be paid by Lessee and from all
interest, penalties and other sums imposed thereon from any sales or other
proceedings to enforce collection of any such real property taxes,
assessments or other charges. Any refund received by Lessor as a result of
the Lessee's contest of the 1993 assessed value shall be refunded to Lessee
upon receipt by Lessor. Subject to all of the terms and conditions herein
above, Lessee and Lessor agree that Lessee shall contest the real property
taxes during the calendar year 1993.
14. Section 22.15 of the Lease entitled Subordination is deleted in its
entirety and replaced with the following:
22.15 SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT. This Lease, except for
Section 24, at Lessor's option, shall be subordinate to any ground lease,
mortgage, deed of trust, or any other hypothecation for security now or
hereafter placed upon the real property of which the leased premises are a
part and to any and all advances made on the security thereof and to all
renewals, modifications, consolidations, replacements and extensions
thereof. Notwithstanding such subordination, Lessee's right to quiet
possession of the leased premises pursuant to this Lease shall not be
disturbed if Lessee is not in default and so long as Lessee shall pay the
rent and observe and perform
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all of the provisions of this Lease, unless this Lease is otherwise
terminated pursuant to its terms. If any mortgagee, trustee or ground
lessor shall elect to have this Lease prior to the lien of its mortgage,
deed of trust or ground lease, and shall give written notice thereof to
Lessee, this Lease shall be deemed prior to such mortgage, deed of trust or
ground lease, whether this Lease is dated prior or subsequent to the date
of said mortgage, deed of trust or ground lease or the. date of recording
thereof. Lessor agrees, upon request by Lessee, to use best efforts to
obtain a commercially reasonable non-disturbance agreement from any such
mortgagee beneficiary of a deed of trust or lessor of Lessor. Lessee agrees
to execute any documents not inconsistent with this Lease required to
effectuate such subordination or to make this Lease prior to the lien of
any ground lease, mortgage or written deed of trust, as the case may be,
within tell (10) days after written demand. Failure of Lessee to execute
any statements or instruments necessary or desirable to effectuate this
Section 22.15 with-in ten (10) days after written request by Lessor to do
so shall constitute a material default under this Lease.
In the event any Proceedings are brought for foreclosure, or in the event
of the exercise of the Power of sale under any mortgage or deed of trust
made by Lessor covering the leased premises, or should the lease in which
Lessor is the lessee be terminated, Lessee shall attorn to the Purchaser or
lessor under such lease upon any foreclosure, sale or lease termination and
recognize the purchaser or lessor as Lessor under this Lease, provided that
the purchaser or lessor shall acquire and accept the leased premises
subject to this Lease. Upon failure by Lessee to execute any statements or
instruments necessary or desirable to effect the foregoing provisions of
this Section 22.15 within ten (10) days after written request to do so by
Lessor, in addition to any other rights or remedies of Lessor hereunder,
Lessee hereby irrevocably appoints Lessor as its attorney-in-fact with the
full power and authority to execute and deliver in the name of Lessee any
of the statements or instruments set forth in this Section 22.15.
15. Section 24 of the Lease entitled Right of First Refusal is deleted in its
entirety and replaced with the following:
24. RIGHT OF FIRST REFUSAL. Notwithstanding any other provision of the
Lease to the contrary, Lessee shall have no right to exercise its Right of
First Refusal, and Lessee's exercise of said Right of First Refusal may be
nullified by Lessor and deemed of no further force or effect whatsoever, if
Lessee shall be in default of any monetary obligation or material
non-monetary obligation under the terms of the Lease (or would be in such
default under the Lease but for the passage of time or giving of notice, or
both) as of the date that Lessor first notifies Lessee in writing of the
price and/or terms on which Lessor will Transfer the leased premises. If
Lessor desires to exchange, sell, ground lease, option or otherwise
transfer, excluding encumbrances, ("Transfer") or agree to Transfer all or
any part of the leased premises, Lessor shall first notify Lessee in
writing of the price and/or terms on which Lessor will Transfer. If Lessee,
within fifteen (15) business days after Lessor's notice has been delivered
indicates in writing its agreement to acquire the leased premises, on the
terms stated in Lessor's notice, Lessor shall Transfer the leased premises
to Lessee for the price and/or on the terms stated in Lessors notice,
except that
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in the event of an exchange, Lessee may elect to pay Lessor the equity
value of Lessor's leased premises rather than exchange for "like kind"
property; provided that Lessee will reasonably cooperate with Lessor in any
exchange if it is at no added cost or expense to Lessee. If Lessee does not
indicate its agreement in writing within said fifteen (15) business days;
Lessor shall have the right to Transfer the leased premises to any
purchaser, tenant or on the same terms as stated in the notice. In the
event of a proposed Transfer of the leased premises, if Lessor does not
enter into a binding contract and escrow to Transfer within six (6) months
from the date Lessor's notice is delivered to Lessee, or in any event, if
Lessor does not actually Transfer the leased premises within nine (9)
months after Lessor's notice is delivered to Lessee, any further
transaction shall be deemed a new determination by Lessor to Transfer the
leased premises and the Provisions of this right of first refusal shall be
applicable. If Lessor receives an offer with respect to a Transfer of the
leased premises with-in said six (6) month period which is on price or
financial terms different from those set forth in Lessor's notice to
Lessee, before accepting such offer, Lessor shall first notify Lessee in
writing of the terms of the offer. If Lessee, within fifteen (15) business
days after Lessor's notice of such different terms has been delivered,
indicates in writing its agreement to accept the transfer of the leased
premises, Lessor shall Transfer the leased premises to Lessee for the price
and on the terms stated in the notice. If Lessee does not indicate its
agreement within said fifteen (15) business days, Lessor shall have the
r1qht to Transfer the leased premises to the Purchaser on the terms of the
notice Provided such Transfer is completed within the nine (9) month period
mentioned above.
This Right of First Refusal is not transferable; the parties hereto
acknowledge and agree that they intend that the aforesaid Right of First
Refusal to purchase the leased premises shall be "Personal" to Lessee as
set forth above and that in no event will any assignee or sublessee have
any rights to exercise the aforesaid Right of First Refusal.
16. The following shall be added to the end of Section 9 of the Lease:
9. ALTERATIONS AND IMPROVEMENTS. Notwithstanding anything in this Lease to
the contrary, all manufacturing equipment and trade fixtures installed by
Lessee shall become the property of Lessee upon expiration of or sooner
termination of this Lease.
17. Section 12 of the Lease entitled Surrender upon Termination is deleted in
its entirety and replaced with the following:
12. SURRENDER UPON TERMINATION. On the last day of the term hereof, or on
any sooner termination, Lessee shall surrender the leased premises to
Lessor in the same condition as when received, ordinary wear and tear
excepted, clean and free of debris. Lessee shall repair any damage to the
leased premises occasioned by the installation or removal of Lessee's trade
fixtures, furnishings and equipment. Notwithstanding anything to the
contrary otherwise stated in this Lease, Lessee shall leave the air lines,
power panels, electrical distribution systems, lighting fixtures, space
heaters, air conditioning, plumbing and fencing on the leased premises in
good operating condition, given the age
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of the improvements.
18. BROKER'S FEE. Upon execution of this First Amendment to Lease by both
parties and upon execution of the Continuing Lease Guaranty by Xxxxxx Park
Industries, p1c, Lessor shall pay to Xxxxx/Xxxxxxxx, Inc., a California
Corporation a commission equal to four percent (4%) of the total lease
consideration for the first five (5) years of the extended term and two percent
(2%) of the total lease consideration for the second five (5) years of the
extended term and pay to CB Commercial, licensed real estate broker(s), a fee
set forth in a separate agreement between Lessor and said broker(s) for
brokerage services rendered by said broker(s) to Lessor in this transaction.
19. EFFECTIVENESS OF LEASE. Except as set forth in this First Amendment to
Lease, all the provisions of the Lease shall remain unchanged and in full force
and effect.
20. Section 8.4 of the Lease entitled Indemnification of Lessor is deleted in
its entirety and replaced with the following:
8.4 INDEMNIFICATION PROVISION. Lessor shall not be liable and Lessee hereby
waives all claims against Lessor for any damage to any property or any
injury to any person in or about the leased premises by or from any cause
whatsoever, (including without limiting the foregoing, rain or water
leakage of any character from the roof, windows, walls, basement, pipes,
plumbing works or appliances, the leased premises not being in good
condition or repair, gas, fire, oil, electricity or theft); except that
Lessor will indemnify and hold Lessee harmless from such claims to the
extent caused by the negligent or willful] act of Lessor, or its agents,
employees or contractors. Lessee shall defend, indemnify, and save Lessor
harmless from and against any and all claims, actions, lawsuits, damages,
liability, and expense, including, without limitation, attorneys' fees
arising from: (a) the act, neglect, fault, or omission to meet the
standards imposed by any duty with respect to the loss, damage, or injury
by Lessee, its agents, servants, employees, contractors, customers or
invitees; (b) the conduct or management of any work or thing whatsoever
done by the Lessee in or about the leased premises or from transactions of
the, Lessee concerning the leased premises; (c) Lessee's failure to comply
with any and ail government laws, ordinances and regulations applicable to
the use of all the leased premises and its occupancy; or (d) any breach or
default on the part of the Lessee -in the performance of any covenant or
agreement on the part of the Lessee to be performed pursuant to the Lease.
The provisions of this Section shall survive the, termination of this Lease
with respect to any claims or liability occurring prior to such
termination.
21. LIMITATION OF LESSOR'S LIABILITY. Notwithstanding any other provision of
the Lease to the contrary, redress for any claims against Lessor under this
Lease shall only be made against Lessor's interest in the property to which the
leased premises are a part. The obligations of Lessor under this Lease shall not
be personally binding on, nor shall any resort be had to the private properties
of, any of its trustees or board of directors and officers, as the case may be,
the general partners thereof or any beneficiaries, stockholders, employees or
agents of Lessor, or the
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investment manager.
22. CORPORATE AUTHORITY. If Lessee is a corporation, Lessee represents and
warrants that this First Amendment to Lease and the undersigned's execution of
this First Amendment to Lease has been duly authorized and approved by the
corporation's Board of Directors. The undersigned officers and representatives
of the corporation executing this First Amendment to Lease on behalf of the
corporation represent and warrant that they are officers of the corporation with
authority to execute this First Amendment to Lease on behalf of the Corporation.
LESSOR: LESSEE:
RREEF WEST-VI ELGAR ELECTRONICS CORPORATION,
A California Group Trust A California Corporation, also
known as Elgar Corporation,
BY: RREEF Management Company,
a California Corporation BY:/s/Xxxxxxxxxxx X. Xxxxxxx
---------------------------------
BY:/s/ Geolf Xxxxx Xxxxxxxxxxx W. Kelford, Treasurer
--------------------------------
Geolf Xxxxx, District Manager Date: November 6, 1992
Date: December 7, 1992
By:/s/Xxxxxxx Xxxxxxxxxx
---------------------------------
By:/s/Xxxxxxx Xxxxx Xxxxxxx Xxxxxxxxxx, President
--------------------------------
Xxxxxxx Xxxxx, Vice President, Date: November 6, 1992
Director of Properties
Date: December 8, 1992
By:/s/Xxxxxxx X. Xxxx
--------------------------------
Xxxxxxx X. Xxxx, Vice President,
Portfolio Manager
Date: December 15, 1992
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