[LOGO] EXHIBIT 99.1
1. PARTIES. This Lease, dated, for reference purposes only June 9, 1997, is
made by and between XXXX PROPERTIES CORP. A FLORIDA CORPORATION (herein
called "Lessor") and AVIATION DISTRIBUTORS, INC. A DELAWARE CORPORATION
(herein called ("Lessee").
2. PREMISES. Lessor hereby leases to Lessee and Lessee leases from Lessor
for the term, at the rental, and upon all of the conditions set forth herein,
that certain real property situated in the County of Orange, State of
California, commonly known as 0 Xxxxxxx Xxxxx, Xxxx Xxxxxx, XX 00000 and
described as A free-standing Building. Said real property including the land
and all improvements therein, is herein called "The Premises".
3. TERM.
3.1 TERM. The term of this Lease shall be for Seven (7) years
commencing on Thirty (30) days after substantial completion of Tenant and
ending on Seven (7) years after Commencement Improvements and final
inspection by City of Lake Forest, unless sooner terminated pursuant to any
provision hereof. * (See Addendum A, Item D for Start Date Amendment and
Items E and H for Early Possession Agreements.)
3.2 DELAY IN POSSESSION. Notwithstanding said commencement date, if for
any reason Lessor cannot deliver possession of the Premises to Lessee on said
date, Lessor shall not be subject to any liability therefor (See Addendum A,
Item I for additional terms.) nor shall such failure affect the validity of
this Lease or the obligations of Lessee hereunder or extend the term hereof,
but in such case, Lessee shall not be obligated to pay rent until possession
of the Premises is tendered to Lessee; provided, however, that if Lessor
shall not have delivered possession of the Premises within sixty (60) days
from said commencement date, Lessee may, at Lessee's option, by notice in
writing to Lessor within ten (10) days thereafter, cancel this Lease, in
which event the parties shall be discharged from all obligations hereunder;
provided further, however, that if such written notice of Lessee is not
received by Lessor within said ten (10) day period, Lessee's right to cancel
this Lease hereunder shall terminate and be of no further force or effect.
3.3 EARLY POSSESSION. If Lessee occupies the Premises prior to said
commencement date, such occupancy shall be subject to all provisions hereof,
such occupancy shall not advance the termination date, and Lessee shall pay
rent for such period at the initial monthly rates set forth below.
4. RENT. Lessee shall pay to Lessor as rent for the Premises, monthly
payments of $29,512.68, in advance, on the first day of each month of the
term hereof. Lessee shall pay Lessor upon the execution hereof $29,512.68 as
rent for the first month (Base Rent $24,317.25); Direct Expense Charges
$5,195.43; Lessee shall pay Lessor on September 1, 1997 as Security Deposit
equal to one month's rent ($29,512.68) pursuant to Article 5 herein.
Rent for any period during the term hereof which is for less than one month
shall be a pro rata portion of the monthly installment. Rent shall be payable
in lawful money of the United States to Lessor at the address stated herein
or to such other persons or at such other places as Lessor may designate in
writing.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor on September 1, 1997
$29,512.68 as security for Lessee's faithful performance of Lessee's
obligations hereunder. If Lessee fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this Lease,
Lessor may use, apply or retain all or any portion of such deposit for the
payment of any rent or other charge in default or for the payment of any
other sum to which Lessor may become obligated by reason of Lessee's default,
or to compensate Lessor for any loss or damage which Lessor may suffer
thereby. If Lessor so uses or applies all or any portion of said deposit,
Lessee shall within ten (10) days after written demand therefor deposit cash
with Lessor in an amount sufficient to restore said deposit to the full
amount hereinabove stated and Lessee's failure to do so shall be a material
breach of this Lease. If the monthly rent shall, from time to time, increase
during the term of this Lease, Lessee shall thereupon deposit with Lessor
additional security deposit so that the amount of security deposit held by
Lessor shall at all times bear the same proportion to current rent as the
original security deposit bears to the original monthly rent set forth in
paragraph 4 hereof. Lessor shall not be required to keep said deposit
separate from its general accounts. If Lessee performs all of Lessee's
obligations hereunder, said deposit, or so much thereof as has not
theretofore been applied by Lessor, shall be returned, without payment of
interest or other increment for its use, to Lessee (or, at Lessor's option,
to the last assignee, if any, of Lessee's interest hereunder) at the
expiration of the term hereof, and after Lessee has vacated the Premises. No
trust relationship is created herein between Lessor and Lessee with respect
to said Security Deposit.
NOTE: SECURITY DEPOSIT SHALL NOT BE APPLIED TOWARD THE LAST MONTH'S RENT.
6. USE.
6.1 USE. The Premises shall be used and occupied only for - office,
distribution and warehousing for aviation equipment and parts as approved by
the City of Lake Forest or any other use which is reasonably comparable and
for no other purpose.
6.2 COMPLIANCE WITH LAW.
(a) Lessor warrants to Lessee that the Premises, in its state
existing on the date that the Lease term commences, but without regard to the
use for which Lessee will use the Premises, does not violate any covenants or
restrictions of record, or any applicable building code, regulation or
ordinance in effect on such Lease term commencement date. In the event it is
determined that this warranty has been violated, then it shall be the
obligation of the Lessor, after written notice from Lessee, to promptly, at
Lessor's sole cost and expense, rectify any such violation. In the event
Lessee does not give to Lessor written notice of the violation of this
warranty within six months from the date that the violation is discovered,
the correction of same shall be the obligation of the Lessee at Lessee's sole
cost. The warranty contained in this paragraph 6.2 (a) shall be of no force
or effect if, prior to the date of this Lease, Lessee was the owner or
occupant of the Premises, and, in such event, Lessee shall correct any such
violation at Lessee's sole cost.
(b) Except as provided in paragraph 6.2(a), Lessee shall, at
Lessee's expense, comply promptly with all applicable statutes, ordinances,
rules, regulations, orders, covenants and restrictions of record, and
requirements in effect during the term or any part of the term hereof,
regulating the use by Lessee of the Premises. Lessee shall not use nor permit
the use of the Premises in any manner that will tend to create waste or a
nuisance or, if there shall be more than one tenant in the building
containing the Premises, shall tend to disturb such other tenants.
6.3 CONDITION OF PREMISES.
(a) Lessor shall deliver the Premises to Lessee clean and free of
debris on Lease commencement date (unless Lessee is already in possession)
and Lessor further warrants to Lessee that the plumbing, lighting, air
conditioning, heating, and loading doors in the Premises shall be in good
operating condition on the Lease commencement date. In the event that it is
determined that this warranty has been violated, then it shall be the
obligation of Lessor, after receipt of written notice from Lessee setting
forth with specificity the nature of the violation, to promptly, at Lessor's
sole cost, rectify such violation. Lessee's failure to give such written
notice to Lessor within thirty (30) days after the Lease commencement date
shall cause the conclusive presumption that Lessor has complied with all of
Lessor's obligations hereunder. The warranty contained in this paragraph
6.3(a) shall be of no force or effect if prior to the date of this Lease,
Lessee, was the owner or occupant of the Premises.
(b) Except as otherwise provided in this Lease, Lessee hereby
accepts the Premises in their condition existing as of the Lease commencement
date or the date that Lessee takes possession of the Premises, whichever is
earlier, subject to all applicable zoning, municipal, county and state laws,
ordinances and regulations governing and regulating the use of the Premises,
and any covenants or restrictions of record, and accepts this Lease subject
thereto and to all matters disclosed thereby and by any exhibits attached
hereto. Lessee acknowledges that neither Lessor nor Lessor's agent has made
any representation or warranty as to the present or future suitability of the
Premises for the conduct of Lessee's business.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS. Lessee shall keep in good order, condition and
repair the Premises and every part thereof, structural and non structural,
(whether or not such portion of the Premises requiring repair, or the means
of repairing the same are reasonably or readily accessible to Lessee, and
whether or not the need for such repairs occurs as a result of Lessee's use,
any prior use, the elements or the age of such portion of the Premises)
including, without limiting the generality of the foregoing, all plumbing,
heating, air conditioning, (Lessee shall procure and maintain, at Lessee's
expense, an air conditioning system maintenance contract) ventilating,
electrical, lighting facilities and equipment within the Premises, fixtures,
walls (interior and exterior), foundations, ceilings, roofs (interior and
exterior), floors, windows, doors, plate glass and skylights located within
the Premises, and all landscaping, driveways, parking lots, fences and signs
located on the Premises and sidewalks and parkways adjacent to the Premises.
7.2 SURRENDER. On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the 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 Premises occasioned
NET
American Industrial Real Estate Association
this Lease, Lessee shall leave the air lines, power panels, electrical
distribution systems, lighting fixtures, space heaters, air conditioning,
plumbing and fencing on the premises in good operating condition.
7.3 LESSOR'S RIGHTS. If Lessee fails to perform Lessee's obligations
under this Paragraph 7, or under any other paragraph of this Lease, Lessor
may at its option (but shall not be required to) enter upon the Premises
after ten (10) days' prior written notice to Lessee (except in the case of an
emergency, in which case no notice shall be required), perform such
obligations on Lessee's behalf and put the same in good order, condition and
repair, and the cost thereof together with interest thereon at the maximum
rate then allowable by law shall become due and payable as additional rental
to Lessor together with Lessee's next rental installment.
7.4 LESSOR'S OBLIGATIONS. Except for the obligations of Lessor under
Paragraph 6.2(a) and 6.3(a) (relating to Lessor's warranty), Paragraph 9
(relating to destruction of the Premises) and under Paragraph 14 (relating to
condemnation of the Premises), it is intended by the parties hereto that
Lessor have no obligation, in any manner whatsoever, to repair and maintain
the Premises nor the building located thereon nor the equipment therein,
whether structural or non structural, all of which obligations are intended
to be that of the Lessee under Paragraph 7.1 hereof. Lessee expressly waives
the benefit of any statute now or hereinafter in effect which would otherwise
afford Lessee the right to make repairs at Lessor's expense or to terminate
this Lease because of Lessor's failure to keep the premises in good order,
condition and repair.
7.5 ALTERATIONS AND ADDITIONS.
(a) Lessee shall not, without Lessor's prior written consent not to
be unreasonably withheld, make any alterations, improvements, additions, or
Utility Installations in, on or about the Premises, except for nonstructural
alterations not exceeding $10,000 in cumulative costs during the term of this
Lease. In any event, whether or not in excess of $10,000 in cumulative cost,
Lessee shall make no change or alteration to the exterior of the Premises nor
the exterior of the building(s) on the Premises without Lessor's prior
written consent. However, Lessee agrees to inform Lessor in writing of all
changes made within the Premises within thirty (30) days of the date of said
change. As used in this Paragraph 7.5 the term "Utility Installation" shall
mean carpeting, window coverings, air lines, power panels, electrical
distribution systems, lighting fixtures, space heaters, air conditioning,
plumbing, and fencing. Lessor may require that Lessee remove any or all of
said alterations, improvements, additions or Utility Installations at the
expiration of the term, and restore the Premises to their prior condition.
Lessor may require Lessee to provide Lessor, at Lessee's sole cost and
expense, a lien and completion bond in an amount equal to one and one-half
times the estimated cost of such improvements, to insure Lessor against any
liability for mechanic's and materialmen's liens and to insure completion of
the work. Should Lessee make any alterations, improvements, additions or
Utility Installations in violation hereof without the prior approval of
Lessor, Lessor may require that Lessee remove any or all of the same.
(b) Any alterations, improvements, additions or Utility
Installations in, or about the Premises that Lessee shall desire to make and
which requires the consent of the Lessor shall be presented to Lessor in
written form, with proposed detailed plans. If Lessor shall give its consent,
the consent shall be deemed conditioned upon Lessee acquiring a permit to do
so from appropriate governmental agencies, the furnishing of a copy thereof
to Lessor prior to the commencement of the work and the compliance by Lessee
of all conditions of said permit in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Lessee at or for use in
the Premises, which claims are or may be secured by any mechanics' or
materialmen's lien against the Premises or any interest therein. Lessee shall
give Lessor not less than ten (10) days' notice prior to the commencement of
any work in the Premises, and Lessor shall have the right to post notices of
non-responsibility in or on the Premises as provided by law. If Lessee shall,
in good faith, contest the validity of any such lien, claim or demand, then
Lessee shall, at its sole expense defend itself and Lessor against the same
and shall pay and satisfy any such adverse judgment that may be rendered
thereon before the enforcement thereof against the Lessor or the Premises,
upon the condition that if Lessor shall require, Lessee shall furnish to
Lessor a surety bond satisfactory to Lessor in an amount equal to such
contested lien claim or demand indemnifying Lessor against liability for the
same and holding the Premises free from the effect of such lien or claim. In
addition, Lessor may require Lessee to pay Lessor's reasonable attorneys fees
and costs in participating in such action if Lessor shall decide it is to its
best interest to do so.
(d) Unless Lessor requires their removal, as set forth in Paragraph
7.5(a), all alterations, improvements, additions and Utility Installations
(whether or not such Utility Installations constitute trade fixtures of
Lessee), which may be made on the Premises, shall become the property of
Lessor and remain upon and be surrendered with the Premises at the expiration
of the term. Notwithstanding the provisions of this Paragraph 7.5(d),
Lessee's machinery and equipment, other than that which is affixed to the
Premises so that it cannot be removed without material damage to the
Premises, shall remain the property of Lessee and may be removed by Lessee
subject to the provisions of Paragraph 7.2
8. INSURANCE INDEMNITY.
8.1 INSURING PARTY. As used in this Paragraph 8, the term "insuring
party" shall mean the party who has the obligation to obtain the Property
Insurance required hereunder. The insuring party shall be designated in
Paragraph 46 hereof. In the event Lessor is the insuring party, Lessor shall
also maintain the liability insurance described in paragraph 8.2 hereof, in
addition to, and not in lieu of, the insurance required to be maintained by
Lessee under said paragraph 8.2, but Lessor shall not be required to name
Lessee as an additional insured on such policy. Whether the insuring party is
the Lessor or the Lessee, Lessee shall, as additional rent for the Premises,
pay the cost of all insurance required hereunder, except for that portion of
the cost attributable to Lessor's liability insurance coverage in excess of
$1,000,000 per occurrence. If Lessor is the insuring party Lessee shall,
within ten (10) days following demand by Lessor, reimburse Lessor for the
cost of the insurance so obtained.
8.2 LIABILITY INSURANCE. Lessee shall, at Lessee's expense obtain and
keep in force during the term of this Lease a policy of Combined Single
Limit, Bodily Injury and Property Damage insurance insuring Lessor and Lessee
against any liability arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such insurance
shall be a combined single limit policy in an amount not less than $500,000
per occurrence. The policy shall insure performance by Lessee of the
indemnity provisions of this Paragraph 8. The limits of said insurance shall
not, however, limit the liability of Lessee hereunder.
8.3 PROPERTY INSURANCE.
(a) The insuring party shall obtain and keep in force during the
term of this Lease a policy or policies of insurance covering loss or damage
to the Premises, in the amount of the full replacement value thereof, as the
same may exist from time to time, but in no event less than the total amount
required by lenders having liens on the Premises, against all perils included
within the classification of fire, extended coverage, vandalism, malicious
mischief, flood (in the event same is required by a lender having a lien on
the Premises), and a special extended perils ("all risk" as such term is used
in the insurance industry). Said insurance shall provide for payment of loss
thereunder to Lessor or to the holders of mortgages or deeds of trust on the
Premises. The insuring party shall, in addition, obtain and keep in force
during the term of this Lease a policy of rental value insurance covering a
period of one year, with loss payable to Lessor, which insurance shall also
cover all real estate taxes and insurance costs for said period. A stipulated
value or agreed amount endorsement deleting the coinsurance provision of the
policy shall be procured with said insurance as well as an automatic increase
in insurance endorsement causing the increase in annual property insurance
coverage by 2% per quarter. If the insuring party shall fail to procure and
maintain said insurance the other party may, but shall not be required to,
procure and maintain the same, but at the expense of Lessee. If such
insurance coverage has a deductible clause, the deductible amount shall not
exceed $1,000 per occurrence, and Lessee shall be liable for such deductible
amount.
(b) If the Premises are part of a larger building, or if the
Premises are part of a group of buildings owned by Lessor which are adjacent
to the Premises, then Lessee shall pay for any increase in the property
insurance of such other building or buildings if said increase is caused by
Lessee's acts, omissions, use or occupancy of the Premises.
(c) If the Lessor is the insuring party the Lessor will not insure
Lessee's fixtures, equipment or tenant improvements unless the tenant
improvements have become a part of the Premises under paragraph 7, hereof.
But if Lessee is the insuring party the Lessee shall insure its fixtures,
equipment and tenant improvements.
8.4 INSURANCE POLICIES. Insurance required hereunder shall be in
companies holding a "General Policyholders Rating" of at least B plus, or
such other ratings as may be required by a lender having a lien on the
Premises, as set forth in the most current issue of "Best's Insurance Guide".
The insuring party shall deliver to the other party copies of policies of
such insurance or certificates evidencing the existence and amounts of such
insurance with loss payable clauses as required by this paragraph 8. No such
policy shall be cancellable or subject to reduction of coverage or other
modification except after thirty (30) days' prior written notice to Lessor. If
Lessee is the insuring party Lessee shall, at least thirty (30) days prior to
the expiration of such policies, furnish Lessor with renewals or "binders"
thereof, or Lessor may order such insurance and charge the cost thereto to
Lessee, which amount shall be payable by Lessee upon demand. Lessee shall not
do or permit to be done anything which shall invalidate the insurance policies
referred to in Paragraph 8.3. If Lessee does or permits to be done anything
which shall increase the cost of the insurance policies referred to in
Paragraph 8.3, then Lessee shall forthwith upon Lessor's demand reimburse
Lessor for any additional premiums attributable to any act or omission or
operation of Lessee causing such increase in the cost of insurance. If Lessor
is the insuring party, and if the insurance policies maintained hereunder
cover other improvements in addition to the Premises. Lessor shall deliver to
Lessee a written statement setting forth the amount of any such insurance
cost increase and showing in reasonable detail the manner in which it has
been computed.
8.5 WAIVER OF SUBROGATION. Lessee and Lessor each hereby release and
relieve the other, and waive their entire right of recovery against the other
for loss or damage arising out of or incident to the perils insured against
under paragraph 8.3, which perils occur in, on or about the Premises, whether
due to the negligence of Lessor or Lessee or their agents, employees,
contractors and/or invitees. Lessee and Lessor shall, upon obtaining
the policies of insurance required hereunder, give notice to the insurance
carrier or carriers that the foregoing mutual waiver of subrogation is
contained in this Lease.
8.6 INDEMNITY. Lessee shall indemnify and hold harmless Lessor from and
against any and all claims arising from Lessee's use of the Premises, or from
the conduct of Lessee's business or from any activity, work or things done,
permitted or suffered by Lessee in or about the Premises or elsewhere and
shall further indemnify and hold harmless Lessor from and against any and all
claims arising from any breach or default in the performance of any
obligation on Lessee's part to be performed under the terms of this Lease, or
arising from any negligence of the Lessee, or any of Lessee's agents,
contractors, or employees, and from and against all costs, attorney's fees,
expenses and liabilities incurred in the defense of any such claim or any
action or proceeding brought thereon: and in case any action or proceeding be
brought against Lessor by reason of any such claim, Lessee upon notice from
Lessor shall defend the same at Lessee's expense by counsel satisfactory to
Lessor. Lessee, as a material part of the consideration to Lessor, hereby
assumes all risk of damage to property or injury to persons except if caused
by the gross negligence or willful misconduct of Lessor in, upon or about the
Premises arising from any cause and Lessee hereby waives all claims in
respect thereof against Lessor.
8.7 EXEMPTION OF LESSOR FROM LIABILITY. Lessee hereby agrees that
Lessor shall not be liable for injury to Lessee's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other
property of Lessee, Lessee's employees, invitees, customers, or any other
person in or about the Premises, nor shall Lessor be liable for injury to the
person of Lessee, Lessee's employees, agents or contractors, whether such
damage or injury is caused by or results from fire, steam, electricity, gas,
water or rain, or from the breakage, leakage, obstruction or other defects of
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures, or from any other cause, whether the said damage or injury results
from conditions arising upon the Premises or upon other portions of the
building of which the Premises are a part, or from other sources or places
and regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Lessee. Lessor shall not be liable for
any damages arising from any act or neglect of any other tenant, if any, of
the building in which the Premises are located.
NET -2-
9. DAMAGE OR DESTRUCTION.
9.1 DEFINITIONS.
(a) "Premises Partial Damage" shall herein mean damage or
destruction to the Premises to the extent that the cost of repair is less
than 50% of the then replacement cost of the Premises. "Premises Building
Partial Damage" shall herein mean damage or destruction to the building of
which the Premises are a part to the extent that the cost of repair is less
than 50% of the then replacement cost of such building as a whole.
(b) "Premises Total Destruction" shall herein mean damage or
destruction to the Premises to the extent that the cost of repair is 50% or
more of the then replacement cost of the Premises. "Premises Building Total
Destruction" shall herein mean damage or destruction to the building of which
the Premises are a part to the extent that the cost of repair is 50% or more
of the then replacement cost of such building as a whole.
(c) "Insured Loss" shall herein mean damage or destruction which
was caused by an event required to be covered by the insurance described in
paragraph 8.
9.2 PARTIAL DAMAGE--INSURED LOSS. Subject to the provisions of
paragraphs 9.4, 9.5 and 9.6, if at any time during the term of this Lease
there is damage which is an insured Loss and which falls into the
classification of Premises Partial Damage or Premises Building Partial
Damage, then Lessor shall, at Lessor's expense, repair such damage, but not
Lessee's fixtures, equipment or tenant improvements unless the same have
become a part of the Premises pursuant to Paragraph 7.5 hereof as soon as
reasonably possible and this Lease shall continue in full force and effect.
Notwithstanding the above, if the Lessee is the insuring party, and if the
insurance proceeds received by Lessor are not sufficient to effect such
repair, Lessor shall give notice to Lessee of the amount required in addition
to the insurance proceeds to effect such repair. Lessee shall contribute the
required amount to Lessor within ten days after Lessee has received notice
from Lessor of the shortage in the insurance. When Lessee shall contribute
such amount to Lessor, Lessor shall make such repairs as soon as reasonably
possible and this Lease shall continue in full force and effect. Lessee shall
in no event have any right to reimbursement for any such amounts so
contributed.*
9.3 PARTIAL DAMAGE--UNINSURED LOSS. Subject to the provisions of
Paragraphs 9.4, 9.5 and 9.6, if at any time during the term of this Lease
there is damage which is not an Insured Loss and which falls within the
classification of Premises Partial Damage or Premises Building Partial
Damage, unless caused by a negligent or willful act of Lessee (in which event
Lessee shall make the repairs at Lessee's expense), Lessor may at Lessor's
option either (i) repair such damage as soon as reasonably possible at
Lessor's expense, in which event this Lease shall continue in full force and
effect, or (ii) give written notice to Lessee within thirty (30) days after
the date of the occurrence of such damage of Lessor's intention to cancel and
terminate this Lease, as of the date of the occurrence of such damage. In the
event Lessor elects to give such notice of Lessor's intention to cancel and
terminate this Lease, Lessee shall have the right within ten (10) days after
the receipt of such notice to give written notice to Lessor of Lessee's
intention to repair such damage at Lessee's expense, without reimbursement
from Lessor, in which event this Lease shall continue in full force and
effect, and Lessee shall proceed to make such repairs as soon as reasonably
possible. If Lessee does not give such notice within such 10-day period this
Lease shall be cancelled and terminated as of the date of the occurrence of
such damage.*
9.4 TOTAL DESTRUCTION. If at any time during the term of this Lease
there is damage, whether or not an Insured Loss, (including destruction
required by any authorized public authority), which falls into the
classification of Premises Total Destruction or Premises Building Total
Destruction, this Lease shall automatically terminate as of the date of such
total destruction.
9.5 DAMAGE NEAR END OF TERM.
(a) If at any time during the last six months of the term of this
Lease there is damage, whether or not an Insured Loss, which falls within the
classification of Premises Partial Damage, Lessor may at Lessor's option
cancel and terminate this Lease as of the date of occurrence of such damage
by giving written notice to Lessee of Lessor's election to do so within 30
days after the date of occurrence of such damage.
(b) Notwithstanding paragraph 9.5(a), in the event that Lessee
has an option to extend or renew this Lease, and the time within which said
option may be exercised has not yet expired, Lessee shall exercise such
option, if it is to be exercised at all, no later than 20 days after the
occurrence of an Insured Loss falling within the classification of Premises
Partial Damage during the last six months of the term of this Lease. If
Lessee duly exercises such option during said 20 day period, Lessor shall,
at Lessor's expense, repair such damage as soon as reasonably possible and
this Lease shall continue in full force and effect. If Lessee fails to
exercise such option during said 20 day period, then Lessor may at Lessor's
option terminate and cancel this Lease as of the expiration of said 20 day
period by giving written notice to Lessee of Lessor's election to do so
within 10 days after the expiration of said 20 day period, notwithstanding
any term or provision in the grant of option to the contrary.
9.6 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) In the event of damage described in paragraphs 9.2 or 9.3,
and Lessor or Lessee repairs or restores the Premises pursuant to the
provisions of this Paragraph 9, the rent payable hereunder for the period
during which such damage, repair or restoration continues shall be abated in
proportion to the degree to which Lessee's use of the Premises is impaired.
Except for abatement of rent, if any, Lessee shall have no claim against
Lessor for any damage suffered by reason of any such damage, destruction,
repair or restoration.
(b) If Lessor shall be obligated to repair or restore the
Premises under the provisions of this Paragraph 9 and shall not commence such
repair or restoration within 90 days after such obligations shall accrue,
Lessee may at Lessee's option cancel and terminate this Lease by giving
Lessor written notice of Lessee's election to do so at any time prior to the
commencement of such repair or restoration. In such event this Lease shall
terminate as of the date of such notice.
9.7 Termination--Advance Payments. Upon termination of this Lease
pursuant to this Paragraph 9, an equitable adjustment shall be made concerning
advance rent and any advance payments made by Lessee to Lessor. Lessor shall,
in addition, return to Lessee so much of Lessee's security deposit as has not
theretofore been applied by Lessor.
9.8 Waiver. Lessor and Lessee waive the provisions of any statutes
which relate to termination of leases when leased property is destroyed and
agree that such event shall be governed by the terms of this Lease.
10. REAL PROPERTY TAXES. (See Addendum A, Item F herein.)
10.1 PAYMENT OF TAXES. Lessee shall reimburse Lessor for the real
property tax, as defined in paragraph 10.2, applicable to the Premises during
the term of this Lease. All such payments shall be made within ten (10) days
of receipt of Lessor's invoice for such payment. If any such taxes paid by
Lessee shall cover any period of time prior to or after the expiration of the
term hereof, Lessee's share of such taxes shall be equitably prorated to
cover only the period of time within the tax fiscal year during which this
Lease shall be in effect, and Lessor shall reimburse Lessee to the extent
required. If Lessee shall fail to pay any such taxes, Lessor shall have the
right to pay the same, in which case Lessee shall repay such amount to Lessor
with Lessee's next rent installment together with interest at the maximum
rate then allowable by law.
10.2 DEFINITION OF "REAL PROPERTY TAX". As used herein, the term "real
property tax" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax (other than inheritance,
personal income or estate taxes) imposed on the Premises by any authority
having the direct or indirect power to tax, including any city, state or
federal government, or any school, agricultural, sanitary, fire, street,
drainage or other improvement district thereof, as against any legal or
equitable interest of Lessor in the Premises or in the real property of which
the Premises are a part, as against Lessor's right to rent or other income
therefrom, and as against Lessor's business of leasing the Premises. The term
"real property tax" shall also include any tax, fee, levy assessment or
charge (i) in substitution of, partially or totally, any tax, fee, levy,
assessment or charge hereinabove included within the definition of "real
property tax," or (ii) the nature of which was hereinbefore included within
the definition of "real property tax," or (iii) which is imposed for a
service or right not charged prior to June 1, 1978, or, if previously
charged, has been increased since June 1, 1978, or (iv) which is imposed as a
result of a transfer, either partial or total, of Lessor's interest in the
Premises or which is added to a tax or charge hereinbefore included within
the definition of real property tax by reason of such transfer, or (iv) which
is imposed by reason of this transaction, any modifications or changes hereto
or any transfers hereof.
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed,
Lessee's liability shall be an equitable proportion of the real property
taxes for all of the land and improvements included within the tax parcel
assessed, such proportion to be determined by Lessor from the respective
valuations assigned in the assessor's work sheets or such other information
as may be reasonably available. Lessor's reasonable determination thereof, in
good faith, shall be conclusive.
10.4 PERSONAL PROPERTY TAXES.
(a) Lessee shall pay prior to delinquency all taxes assessed
against and levied upon trade fixtures, furnishings, equipment and all other
personal property of Lessee contained in the Premises or elsewhere. When
possible, Lessee shall cause said trade fixtures, furnishings, equipment and
all other personal property to be assessed and billed separately from the
real property of Lessor.
(b) If any of Lessee's said personal property shall be assessed
with Lessor's real property, Lessee shall pay Lessor the taxes attributable
to Lessee within 10 days after receipt of a written statement setting forth
the taxes applicable to Lessee's property.
11. UTILITIES. Lessee shall pay for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the Premises, together
with any taxes thereon. If any such services are not separately metered to
Lessee, Lessee shall pay a reasonable proportion to be determined by Lessor
of all charges jointly metered with other premises. Lessor warrants all
utilities will be provided to the Building upon the Commencement Date.
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interest in this Lease or in the
Premises, without Lessor's prior written consent, which Lessor shall not
unreasonably withhold. Lessor shall respond to Lessee's request for consent
hereunder in a timely manner and any attempted assignments, transfer,
mortgage, encumbrance or subletting without such consent shall be void, and
shall constitute a breach of this Lease.
12.2 LESSEE AFFILIATE. Notwithstanding the provisions of paragraph
12.1 hereof, Lessee may assign or sublet the Premises, or any portion
thereof, without Lessor's consent, to any corporation which controls, is
controlled by or is under common control with Lessee, or to any corporation
resulting from the merger or consolidation with Lessee, or to any person or
entity which acquires all the assets of Lessee as a going concern of the
business that is being conducted on the Premises, provided that said assignee
assumes, in full, the obligations of Lessee under this Lease. Any such
assignment shall not, in any way, affect or limit the liability of Lessee
under the terms of this Lease even if after such assignment or subletting the
terms of this Lease are materially changed or altered without the consent of
Lessee, the consent of whom shall not be necessary.
12.3 NO RELEASE OF LESSEE. Regardless of Lessor's consent, no
subletting or assignment shall release Lessee of Lessee's obligation or after
the primary liability of Lessee to pay the rent and to perform all other
obligations to be performed by Lessee hereunder. The acceptance of rent by
Lessor from any other person shall not be deemed to be a waiver by Lessor of
any provision hereof. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. In the event of
default by any assignee of Lessee or any successor of Lessee, in the
performance of any of the terms hereof. Lessor may proceed directly against
Lessee without the necessity of exhausting remedies against said assignee.
Lessor may consent subsequent assignments or subletting of this Lease or
amendments or modifications to this Lease with assignees.
* Notwithstanding the foregoing, Lessee shall have no obligation to
contribute any amount to Lessor for damages resulting from Lessor's
negligence or negligent omissions.
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of Lessee without notifying Lessee, or any successor of Lessee, and without
obtaining its or their consent thereto and such action shall not relieve
Lessee of liability under this Lease.
12.4 ATTORNEY'S FEES. In the event Lessee shall assign or sublet the
premises or request the consent of Lessor to any assignment or subletting or
if Lessee shall request the consent of Lessor for any act Lessee proposes to do
then Lessee shall pay Lessor's reasonable attorney's fees incurred in
connection therewith, such attorney's fees not to exceed $350.00 for each
such request.
13. DEFAULTS; REMEDIES.
13.1 DEFAULTS. The occurrence of any one or more of the following
events shall constitute a material default and breach of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) 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, where such
failure shall continue for a period of three 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.
(c) The failure by Lessee to observe or perform any of the
covenants, conditions or provisions of this Lease to be observed or performed
by Lessee, other than described in paragraph (b) above, where such failure
shall continue for a period of 30 days after written notice hereof from
Lessor to Lessee; provided, however, that if the nature of Lessee's default
is such that more than 30 days are reasonably required for its cure, then
Lessee shall not be deemed to be in default if Lessee commenced such cure
within said 30-day period and thereafter diligently prosecutes such cure to
completion.
(d) (i) The making by Lessee of any general arrangement of
assignment for the benefit of creditors; (ii) Lessee become a "debtor" as
defined in 11 U.S.C. Section 101 or any successor statute thereto (unless,
in the case of a petition filed against Lessee, the same is dismissed within
60 days); (iii) the appointment of a trustee or receiver to take possession
of substantially all of Lessee's assets located at the Premises or of
Lessee's interest in this Lease, where possession is not restored to Lessee
within 30 days; or (iv) the attachment, execution or other judicial seizure
of substantially all of Lessee's assets located at the Premises or of
Lessee's interest in this Lease, where such seizure is not discharged within
30 days. Provided, however, in the event that any provision of this paragraph
13.1(d) is contrary to any applicable law, such provision shall be of no
force or effect.
(e) The discovery by Lessor that any financial statement given to
Lessor by Lessee, any assignee of Lessee, any subtenant of Lessee, any
successor in interest of Lessee or any guarantor of Lessee's obligation
hereunder, and any of them, was materially false.
13.2 REMEDIES. In the event of any such material default or breach by
Lessee, Lessor may at any time thereafter, with or without notice or demand
and without limiting Lessor in the exercise of any right or remedy which
Lessor may have by reason of such default or breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to Lessor. In such event
Lessor shall be entitled to recover from Lessee all damages incurred by
Lessor by reason of Lessee's default including, but not limited to, the cost
of recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorney's
fees, and any real estate commission actually paid; the worth at the time of
award by the court having jurisdiction thereof of the amount by which the
unpaid rent for the balance of the term after the time of such award exceeds
the amount of such rental loss for the same period that Lessee proves could
be reasonably avoided; that portion of the leasing commission paid by Lessor
pursuant to Paragraph 15 applicable to the unexpired term of this Lease.
(b) Maintain Lessee's right to possession in which case this Lease
shall continue in effect whether or not Lessee shall have abandoned the
Premises. In such event Lessor shall be entitled to enforce all of Lessor's
rights and remedies under this Lease, including the right to recover the rent
as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the state wherein the Premises are
located. Unpaid installments of rent and other unpaid monetary obligations of
Lessee under the terms of this Lease shall bear interest from the date due at
the maximum rate then allowable by law.
13.3 DEFAULT BY LESSOR. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor within a reasonable time, but
in no event later than thirty (30) days after written notice by Lessee to
Lessor and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have theretofore been furnished to
Lessee in writing, specifying wherein Lessor has failed to perform such
obligation; provided, however, that if the nature of Lessor's obligation is
such that more than thirty (30) days are required for performance then Lessor
shall not be in default if Lessor commences performance within such 30-day
period and thereafter diligently prosecutes the same to completion.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by
Lessee to Lessor of rent and other sums due hereunder will cause Lessor to
incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Lessor by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Lessee
shall not be received by Lessor or Lessor's designee within ten (10) days
after such amount shall be due, then, without any requirement for notice to
Lessee, Lessee shall pay to Lessor a late charge equal to 6% of such overdue
amount. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of late payment
by Lessee. Acceptance of such late charge by Lessor shall in no event
constitute a waiver of Lessee's default with respect to such overdue amount,
nor prevent Lessor from exercising any of the other rights and remedies
granted hereunder. In the event that a late charge is payable hereunder,
whether or not collected, for three (3) consecutive installments of rent,
then rent shall automatically become due and payable quarterly in advance,
rather than monthly, notwithstanding paragraph 4 or any other provision of
this Lease to the contrary.
14. 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 (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority
takes title or possession, whichever first occurs. If more than 10% of the
floor area of the building on the Premises, or more than 25% of the land area
of the Premises which is not occupied by any building, is taken by
condemnation, Lessee may, at Lessee's option, to be exercised in writing only
within ten (10) days after Lessor shall have given Lessee written notice of
such taking (or in the absence of such notice, within ten (10) days after the
condemning authority shall have taken possession) terminate this Lease as of
the date the condemning authority takes such possession. If Lessee does not
terminate 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 rent shall be reduced in the proportion that the floor area
of the building taken bears to the total floor area of the building situated
on the Premises. No reduction of rent shall occur if the only area taken is
that which does not have a building located thereon. Any award for the taking
of all or any part of the Premises under the power of eminent domain or any
payment made under threat of the exercise of such power shall be the property
of Lessor, whether such award shall be made as compensation for diminution in
value of the leasehold or for the taking of the fee, or as severance damages;
provided, however, that Lessee shall be entitled to any award for loss of or
damage to Lessee's trade fixtures and removable personal property. In the
event that this Lease is not terminated by reason of such condemnation,
Lessor shall to the extent of severance damages received by Lessor in
connection with such condemnation, repair any damage to the Premises caused
by such condemnation except to the extent that Lessee has been reimbursed
therefor by the condemning authority, Lessee shall pay any amount in excess
of such severance damages required to complete such repair.
15. BROKER'S FEE.
(a) Upon execution of this Lease by both parties, Lessor shall pay
to CB COMMERCIAL, XXXXX XXXXXXX, XXXX XXXX, XXX XXXXXXXXXXXXX a fee as set
forth in a separate agreement between Lessor and said broker(s), or in the
event there is no separate agreement between Lessor and said broker(s), the
sum of $PER AGREEMENT, for brokerage services rendered by said broker(s) to
Lessor in this transaction.
(b) Lessor further agrees that if Lessee exercises any Option as
defined in paragraph 39.1 of this Lease, which is granted to Lessee under
this Lease, or any subsequently granted option which is substantially similar
to an Option granted to Lessee under this Lease, or if Lessee acquires any
rights to the Premises or other premises described in this Lease which are
substantially similar to what Lessee would have acquired had an Option herein
granted to Lessee been exercised, or if Lessee remains in possession of the
Premises after the expiration of the term of this Lease after having failed
to exercise an Option, or if said broker(s) are the procuring cause of any
other lease or sale entered into between the parties pertaining to the
Premises and/or any adjacent property in which Lessor has an interest, then
as to any of said transaction, Lessor shall pay said broker(s) a fee in
accordance with the schedule of said broker(s) in effect at the time of
execution of this Lease.
(c) Lessor agrees to pay said fee not only on behalf of Lessor but
also on behalf of any person, corporation, association, or other entity
having an ownership interest in said real property or any part thereof, when
such fee is due hereunder. Any transferee of Lessor's interest in this Lease,
whether such transfer is by agreement or by operation of law, shall be deemed
to have assumed Lessor's obligation under this Paragraph 15. Said broker
shall be a third party beneficiary of the provisions of this Paragraph 15.
15. ESTOPPEL CERTIFICATE.
(a) Lessee shall at any time upon not less than ten (10) days'
prior written notice from Lessor execute, acknowledge and deliver to Lessor a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or, if modified, stating the nature of such modification
and certifying that this Lease, as so modified, is in full force and effect)
and the date to which the rent and other charges are paid in advance, if any,
and by acknowledging that there are not, to Lessee's knowledge, any uncured
defaults on the part of Lessor hereunder, or specifying such defaults if any
are claimed. Any such statement may be conclusively relied upon by any
prospective purchaser or encumbrancer of the Premises.
(b) At Lessor's option, Lessee's failure to deliver such statement
within such time shall be a material breach of this Lease or shall be
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conclusive upon Lessee (i) that this Lease is in full force and effect
without modification except as may be represented by Lessor (ii) that there
are no uncured defaults in Lessor's performance, and (iii) that no more than
one month's rent has been paid in advance of such failure may be considered
by Lessor as a default by Lessee under this Lease.
(c) If Lessor desires to finance, refinance, or sell the Premises,
or any part thereof, Lessee hereby agrees to deliver to any lender or
purchaser designated by Lessor such financial statements of Lessee as may be
reasonably required by such lender or purchaser. Such statements shall
include the past three years' financial statements of Lessee. All such
financial statements shall be received by Lessor and such lender or purchaser
in confidence and shall be used only for the purposes herein set forth.
17. LESSOR'S LIABILITY. The term "Lessor" as used herein shall mean only
the owner or owners at the time in question of the fee title or a lessee's
interest in a ground lease of the Premises, and except as expressly provided
in Paragraph 15, in the event of any transfer of such title or interest.
Lessor herein named (and in case of any subsequent transfers then the
grantor) shall be relieved from and after the date of such transfer of all
liability as respects Lessor's obligation thereafter to be performed,
provided that any funds in the hands of Lessor or the then grantor at the
time of such transfer, in which Lessee has an interest, shall be delivered to
the grantee. The obligations contained in this Lease to be performed by
Lessor shall, subject as aforesaid, be binding on Lessor's successors and
assigns, only during their respective periods of ownership.
18. SEVERABILITY. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
19. INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein provided,
any amount due to Lessor not paid when due shall bear interest at the maximum
rate then allowable by law from the date due. Payment of such interest shall
not excuse or cure any default by Lessee under this Lease, provided, however,
that interest shall not be payable on late charges incurred by Lessee nor on
any amounts upon which late charges are paid by Lessee.
20. TIME OF ESSENCE. Time is of the essence.
21. ADDITIONAL RENT. Any monetary obligations of Lessee to Lessor under the
terms of this Lease shall be deemed to be rent.
22. INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all
agreements of the parties with respect to any matter mentioned herein. No
prior agreement or understanding pertaining to any such matter shall be
effective. This Lease may be modified in writing only, signed by the parties
in interest at the time of the modification. Except as otherwise stated in
this Lease, Lessee hereby acknowledges that neither the real estate broker
listed in Paragraph 15 hereof nor any cooperating broker on this transaction
nor the Lessor or any employees or agents of any of said persons has made any
oral or written warranties or representations to Lessee relative to the
condition or use by Lessee of said Premises and Lessee acknowledges that
Lessee assumes all responsibility regarding the Occupational Safety Health
Act, the legal use and adaptability of the Premises and the compliance
thereof with all applicable laws and regulations in effect during the term of
this Lease except as otherwise specifically stated in this Lease.
23. NOTICES. Any notice required or permitted to be given hereunder shall
be in writing and may be given by personal delivery or by certified mail, and
if given personally or by mail, shall be deemed sufficiently given if
addressed to Lessee or to Lessor at the address noted below the signature of
the respective parties, as the case may be. Either party may by notice to the
other specify a different address for notice purposes except that upon
Lessee's taking possession of the Premises, the Premises shall constitute
Lessee's address for notice purposes. A copy of all notices required or
permitted to be given to Lessor hereunder shall be concurrently transmitted
to such party or parties at such addresses as Lessor may from time to time
hereafter designate by notice to Lessee.
24. WAIVERS. No waiver by Lessor or any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Lessee of
the same or any other provision. Lessor's consent to, or approval of, any
act shall not be deemed to render unnecessary the obtaining of Lessor's
consent to or approval of any subsequent act by Lessee. The acceptance of
rent hereunder by Lessor shall not be a waiver of any preceding breach by
Lessee of any provision hereof, other than the failure of Lessee to pay the
particular rent so accepted, regardless of Lessor's knowledge of such
preceding breach at the time of acceptance of such rent.
25. RECORDING. Either Lessor or Lessee shall, upon request of the other,
execute, acknowledge and deliver to the other a "short form" memorandum of
the Lease for recording purposes.
26. HOLDING OVER. If Lessee, with Lessor's reasonable consent, remains in
possession of the Premises or any part thereof after the expiration of the
term hereof, such occupancy shall be a tenancy from month to month upon all
the provisions of this Lease pertaining to the obligations of Lessee, but all
options and rights of first refusal, if any, granted under the terms of this
Lease shall be deemed terminated and be of no further effect during said
month to month tenancy.
27. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies
at law or in equity.
28. COVENANTS AND CONDITIONS. Each provision of this Lease performable by
Lessee shall be deemed both a covenant and a condition.
29. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof
restricting assignment or subletting by Lessee and subject to the provisions
of Paragraph 17, this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State wherein the Premises are located. California represents
the forum choice for any disputes.
30. SUBORDINATION.
(a) This Lease, at Lessor's option, shall be subordinate to any
ground lease, mortgage, deed of trust, or any other hypothecation or security
now or hereafter placed upon the real property of which the 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
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform 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.
(b) Lessee agrees to execute any documents required to effectuate
an attornment, a subordination or to make this Lease prior to the lien of any
mortgage, deed of trust or ground lease, as the case may be. Lessee's failure
to execute such documents within 10 days after written demand shall
constitute a material default by Lessee hereunder, or, at Lessor's option,
Lessor shall execute such documents on behalf of Lessee as Lessee's
attorney-in-fact. Lessee does hereby make, constitute and irrevocably
appoint Lessor as Lessee's attorney-in-fact and in Lessee's name, place and
stead, to execute such documents in accordance with this paragraph 30(b).
31. ATTORNEY'S FEES. If either party or the broker named herein brings an
action to enforce the terms hereof or declare rights hereunder, the
prevailing party in any such action, on trial or appeal, shall be entitled to
his reasonable attorney's fees to be paid by the losing party as fixed by the
court. The provisions of this paragraph shall inure to the benefit of the
broker named herein who seeks to enforce a right hereunder.
32. LESSOR'S ACCESS. Lessor and Lessor's agents shall have the right to
enter the Premises at reasonable times and when possible, during normal
business hours with 24-hour notice for the purpose of inspecting the same,
showing the same to prospective purchasers, lenders, or lessees, and making
such alterations, repairs, improvements or additions to the Premises any
ordinary "For Sale" signs and Lessor may at any time during the last 120 days
of the term hereof place on or about the Premises any ordinary "For Lease"
signs, all without rebate of rent or liability to Lessee.
33. AUCTIONS. Lessee shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises without first
having obtained Lessor's prior written consent. Notwithstanding anything to
the contrary in this Lease. Lessor shall not be obligated to exercise any
standard of reasonableness in determining whether to grant such consent.
34. SIGNS. Lessee shall not place any sign upon the Premises without
Lessor's prior written consent except that Lessee shall have the right,
without the prior permission of Lessor to place ordinary and usual for rent
or sublet signs thereon.
35. MERGER. The voluntary or other surrender of this Lease by Lessee, or a
mutual cancellation thereof, or a termination by Lessor, shall not work a
merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to
Lessor of any or all of such subtenancies.
36. CONSENTS. Except for paragraph 33 hereof, wherever in this Lease the
consent of one party is required to an act of the other party such consent
shall not be reasonably withheld.
37. GUARANTOR. In the event that there is a guarantor of this Lease, said
guarantor shall have the same obligations as Lessee under this Lease.
38. QUIET POSSESSION. Upon Lessee paying the rent for the Premises and
observing and performing all of the covenants, conditions and provisions on
Lessee's part to be observed and performed hereunder, Lessee shall have quiet
possession of the Premises for the entire term hereof subject to all of the
provisions of this Lease. The individuals executing this Lease on behalf of
Lessor represent and warrant to Lessee that they are fully authorized and
legally capable of executing this Lease on behalf of Lessor and that such
execution is binding upon all parties holding an ownership interest in the
Premises.
39. OPTIONS.
39.1 DEFINITION. As used in this paragraph the word "Options" has the
following meaning: (1) the right or option to extend the term of this Lease
or to renew this Lease or to extend or renew any lease that Lessee has on
other property of Lessor; (2) the option or right of first refusal to lease
the Premises or the right of first offer to lease the Premises or the right
of first refusal to lease other property of Lessor or the right of first
offer to lease other property of Lessor; (3) the right or option to purchase
the Premises, or the right of first refusal to purchase the Premises, or the
right of first offer to purchase the Premises or the right or option to
purchase other property of Lessor, or the right of first refusal to purchase
other property of Lessor or the right of first offer to purchase other
property of Lessor.
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39.2 OPTIONS PERSONAL. Each Option granted to Lessee in this Lease are
personal to Lessee and may not be exercised on the assigned voluntarily or
involuntarily by XXX any person or entity other than Lessee, provided
however, the Option may be exercised by or assigned to any Lessee Affiliate
as defined in paragraph 12.2 of this Lease. The Options herein granted to
Lessee are not assignable separate and apart from this Lease.
39.3 MULTIPLE OPTIONS. In the event that Lessee has any multiple
options to extend or renew this Lease a later option cannot be exercised
unless the prior option to extend or renew this Lease has been so exercised.
39.4 EFFECT OF DEFAULT ON OPTIONS.
(a) Lessee shall have no right to exercise an Option,
notwithstanding any provision in the grant of Option to the contrary (i)
during the time commencing from the date Lessor gives to Lessee a notice of
default pursuant to paragraph 13.1(b) or 13.1(c) and continuing until the
default elapsed in said notice of default is cured, or (ii) during the period
of time commencing on the day after a monetary obligation to Lessor is due
from Lessee and unpaid (without any necessity for notice thereof to Lessee)
continuing until the obligation is paid, or (iii) at any time after an event
of default described in paragraphs 13.1(a), 13.1(d) or 13.1(e) (without any
necessity of Lessor to give notice of such default to Lessee), or (iv) in the
event that Lessor has given to Lessee three or more notices of default under
paragraph 13.1(b) where a late charge has become payable under paragraph 13.4
for each of such defaults, or paragraph 13.1(c), whether or not the defaults
are cured, during the 12 month period prior to the time that Lessee intends
to exercise the subject Option.
(b) The period of time within which an Option may be exercised
shall not be extended or enlarged by reason of Lessee's inability to exercise
an Option because of the provisions of paragraph 39.4(a).
(c) All rights of Lessee under the provisions of an Option shall
terminate and be of no further force or effect notwithstanding Lessee's due
and timely exercise of the Option, if, after such exercise and during the
term of this Lease, (i) Lessee fails to pay to Lessor a monetary obligation
of Lessee for a period of 30 days after such obligation becomes due, or (ii)
Lessee fails to commence to cure a default specified in paragraph 13.1(c)
within 30 days after the date that Lessor gives notice to Lessee of such
default and/or Lessee fails thereafter to diligently prosecute said cure to
completion, or (iii) Lessee commits a default described in paragraph 13.1(a),
13.1(d) prosecuted 13.1(e)(without any necessity of Lessor to give notice of
such default to Lessee), or (iv) Lessor gives to Lessee three or more notices
of default under paragraph 13.1(d), where a late charge becomes payable under
paragraph 13.4 for each such default, or paragraph 13.1(c), whether or not
the defaults are cured.
40. MULTIPLE TENANT BUILDING. In the event that the Premises are part of a
larger building or group of buildings then Lessee agrees that it will abide
by keep and observe all reasonable rules and regulations which Lessor may
make from time to time for the management, safety, care, and cleanliness of
the building and grounds, the parking of vehicles and the preservation of
good order therein as well as for the convenience of other occupants and
tenants of the building. The violations of any such rules and regulations
shall be deemed a material breach of this Lease by Lessee.
41. SECURITY MEASURES. Lessee hereby acknowledges that the rental payable to
Lessor hereunder does not include the cost of guard service or other security
measures, and that Lessor shall have no obligation whatsoever to provide
same. Lessee assumes all responsibility for the protection of Lessee, its
agents and invitees from acts of third parties.
42. EASEMENTS. Lessor reserves to itself the right, from time to time, to
grant such easements, rights and dedications that Lessor deems necessary or
desirable, and to cause the recordation of Parcel Maps and restrictions, so
long as such easements, rights, dedications, Maps and restriction do not
unreasonably interfere with the use of the Premises by Lessee. Lessee shall
sign any of the aforementioned documents upon request of Lessor and failure
to do so shall constitute a material breach of this Lease.
43. PERFORMANCE UNDER PROTEST. If at any time a dispute shall arise to any
amount or sum of money to be paid by one party to the other under the
provisions hereof, the party against whom the obligation to pay the money is
asserted shall have the right to make payment "under protest" and such
payment shall not be regarded as a voluntary payment, and there shall survive
the right on the part of said party to institute suit for recovery of such
sum. If it shall be adjudged that there was no legal obligation on the part
of said party to pay such sum or any part thereof, said party shall be
entitled to recover such sum or so much thereof as it was not legally
required to pay under the provisions of this Lease.
44. AUTHORITY. If Lessee is a corporation, trust, or general or limited
partnership, each individual executing this Lease on behalf of such entity
represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of said entity. If Lessee is a corporation,
trust or partnership, Lessee shall, within thirty days (30) days after
execution of this Lease, deliver to Lessor evidence of such authority
satisfactory to Lessor.
45. CONFLICT. Any conflict between the printed provisions of this Lease and
the typewritten or handwritten provisions shall be controlled by the
typewritten or handwritten provisions.
46. INSURING PARTY. The insuring party under this lease shall be the LESSEE.
47. ADDENDUM. See Addenda A, B, C, D and E and Exhibits A, X-0, X-0, and B-1
and B-2 attached hereto and made a part hereof.
48. RENT PAYMENTS. Rent payments are due on the first of each month. Please
remit to Xxxx Properties Corp., 0 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000.
LESSOR DOES NOT INVOICE ON A MONTHLY BASIS.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM
AND PROVISION CONTAINED HEREIN AND BY EXECUTION OF THIS LEASE, SHOW THEIR
INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT AT THE
TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY
REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH
RESPECT TO THE PREMISES.
IF THIS LEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR SUBMISSION TO YOUR
ATTORNEY FOR HIS APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKER OR
ITS AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX
CONSEQUENCES OF THIS LEASE OR THE TRANSACTION RELATING THERETO. THE PARTIES
SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL
AND TAX CONSEQUENCES OF THIS LEASE.
THE PARTIES HERETO HAVE EXECUTED THIS LEASE AT THE PLACE ON THE DATES
SPECIFIED IMMEDIATELY ADJACENT TO THEIR RESPECTIVE SIGNATURES.
XXXX PROPERTIES CORP.
Executed at: Newport Beach A FLORIDA CORPORATION
--------------------------- ---------------------------------
on July 16, 1997 By /s/ XXXXXXX X. XXXXXXXXX
--------------------------- -----------------------------
Xxxxxxx x. Xxxxxxxxx
Vice President, Xxxxxxxxx
Xxxxxxx 0 Xxxxxxxxx Xxxxx By
--------------------------- -----------------------------
Xxxxxxx Xxxxx, XX 00000
--------------------------- "LESSOR"
AVIATION DISTRIBUTORS, INC.
Executed at A DELAWARE CORPORATION
--------------------------- -----------------------------
on By /s/ XXXXXX XXXXXX
--------------------------- -----------------------------
Address By Xxxxxx Xxxxxx, President
--------------------------- -----------------------------
"LESSEE"
ADDENDUM "A"
TO LEASE DATED: June 9, 1997
BY AND BETWEEN: XXXX PROPERTIES CORP.
A FLORIDA CORPORATION
AS LESSOR; AND: AVIATION DISTRIBUTORS, INC.
A DELAWARE CORPORATION
AS LESSEE
-------------------------------------------------------------------------------
A. SIGN CRITERIA
These regulations are established in order to maintain a continuity in
appearance throughout Spectrum Pointe and to comply with the City of
Lake Forest sign ordinance. Conformance with the following sign
regulations will be strictly enforced:
1. GENERAL REQUIREMENTS:
(a) Each unit or building shall be allowed one identity sign.
(b) The sign shall be installed at Lessee's expense.
(c) No electrical or audible signs shall be permitted.
(d) Except as provided herein, no advertising placards, banners,
pennants, names, insignias, trademarks, or other descriptive
material shall be affixed or maintained upon the glass panes or
exterior walls of the building.
2. SPECIFICATIONS-Multi-tenant Buildings:
(TO BE DETERMINED)
3. SPECIFICATIONS-Single-tenant Buildings:
(a) Front Entry Sign:
(i) Lessee shall use three dimensional, plant-on, individual
letters. These letters shall be made of 3" thick,
poly-styrened back with a high impact styrene letter face
not to exceed 14" in height.
(ii) Type face shall be Helvetica medium and the color shall be
white.
(iii) The maximum area within which the sign, including logo, can
be installed shall be 40 square feet per building, except
in the event that more than one tenant occupies a single
building, the sign size allotment shall be determined on a
prorata basis. The square footage dimensions shall be
calculated by taking the distance from the first to the last
letter, including all spaces between the letters
("length"), and multiplying that dimension by the distance
from the top to the bottom of the largest letter or logo
("width").
(iv) Placement of the sign on the building shall be in the
location and by the method designated by Lessor. Lessee
shall submit a sketch of the proposed sign to Lessor for
approval prior to construction and installation.
(v) Lessee shall be responsible for obtaining all approvals and
permits that may be required by the City of Lake Forest or
the Association.
(b) Warehouse Mandoor Sign:
(i) These signs shall be on 5" X 18" plexiglass, white in color
with black lettering hot-stamped onto the plexiglass face.
It shall be attached with double-sided adhesive tape, and
the skin of the door is not to be penetrated.
CCA /s/ CCA
---------------- ----------------
Lessor's Initial Lessee's Initial
ADDENDUM "A"
PAGE 2
B. DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
Lessee acknowledges that its leasehold estate is part of the Planned
Development and subject to a Declaration of Covenants, Conditions, and
Restrictions. Lessee agrees to accept its leasehold estate subject to
the aforementioned Declaration and agrees to perform and comply with any
and all restrictions set forth in said declaration or to make adequate
provisions to permit entry and other actions by Lessor for the purpose
of performing and complying with these restrictions.
C. MANAGEMENT
Hereinafter Lessor agrees to perform all of Lessee's obligations
("Direct Expenses") defined in Article 10.1 of this Lease, and only the
common area and landscaping obligations set forth under Article 7.1.
Direct Expense Budget for 1998 is as follows:
TOTAL DIRECT EXPENSE MONTHLY BUDGET FOR:
SPECTRUM POINTE
Total Project Square Footage: 164,900
Tenant's Square Footage: 36,079
Tenant's Percentage: 21.88%
MONTHLY EXPENSES
PER MONTH
Landscaping $ 1,319.20
Sweeping 494.70
Utilities 1,649.00
Exterior Maintenance 1,319.20
Management (1.5% of gross) 1,649.00
Reserve 989.40
---------
TOTAL COMMON AREA $ 7,420.00
Property Taxes 10,388.70
Melo Xxxx Assessments 5,111.90
Pacific Commercentre Assn. Dues 824.50
---------
TOTAL EXPENSES PER MONTH $16,325.10
Lessee's monthly prorata share is 21.88% of the above expenses as follows:
Common Area.................................................... $ 1,623.50
Property Taxes................................................. $ 3,571.93
---------
TOTAL MONTHLY DIRECT EXPENSE BUDGET............................ $ 5,195.43
---------
---------
Lessor will provide Lessee an estimate of the Direct Expenses each year
which will be added to the monthly lease payment. The estimate for the
first year is based on the Direct Expense Budget above. Lessor agrees
to provide Lessee with an accounting of the actual expenses as of
December 31st of each year. Should the cost of providing these services
exceed the estimate, then upon receipt of a statement from Lessor,
Lessee shall pay a lump sum equal to Lessee's prorata share of Direct
Expenses for the previous calendar year, less the total of the monthly
installments of the estimated Direct Expenses paid in the previous
calendar year. The estimated monthly installments to be paid for the
next calendar year shall be adjusted to reflect such increase. IN NO
EVENT SHALL THE ANNUAL ADJUSTMENT FOR COMMON AREA EXPENSES EXCEED THREE
PERCENT (3%) PER ANNUM.
If in any calendar year Lessee's share of Direct Expenses shall be less
than the preceding year, then upon receipt of Lessor's statement, any
over payment made by Lessee on the monthly installment basis provided
above shall be credited toward the next monthly rent falling due and the
estimated monthly installment of Direct Expenses to be paid shall be
adjusted to reflect such lower Direct Expenses for the most recent year.
CCA /s/ CCA
----------------- -----------------
Lessor's Initials Lessee's Initials
ADDENDUM "A"
PAGE 3
D. START DATE AMENDMENT
Upon establishing a fixed Commencement and Termination Date for this
Lease, an amendment shall be created defining said dates which will
be attached hereto and will become hereof a part of the terms and
conditions of this Lease.
E. EARLY ACCESS AGREEMENT
Lessor agrees to grant Lessee rent-free access to the Premises during
the last thirty (30) days of the construction period and prior to final
inspection for the purpose of fixturization and utility installations.
Said access shall be co-ordinated with Lessor's job-site superintendent
and shall be granted at times and in such areas as said job-site
superintendent deems in his sole discretion to in no way interfere with
or delay the construction of the Tenant Improvements as set forth on
Addendum E herein. Lease payments shall not commence until the
Commencement Date as set forth on the Start Date Amendment. Lessor shall
have no liability or responsibility for damages to the personal property
of Lessee, or any loss suffered by Lessee through vandalism, theft, or
destruction of the property by fire or other causes.
F. REAL ESTATE TAX ASSESSMENT
In no event shall Lessee be responsible for any tax increases caused by
the sale or transfer of the Building during the initial lease term, or
any extensions thereof.
G. HAZARDOUS MATERIALS
To the best of Lessor's knowledge, there is no asbestos or hazardous
materials including, but not limited to, Radon gas, PCB's, lead base
paint, ground water contamination, industrial, radioactive or chemical
waste, urea-formaldehyde insulation, under ground storage tanks on the
property, or within 2,000 feet of the property and the property is not
in a flood or seismic zone. Notwithstanding any other provision in the
Lease and the Addenda thereto, Lessee shall not be responsible for any
costs associated with hazardous materials clean-up on the Premises not
caused by or resulting from the activities or negligent omissions of
Lessee, and Lessor hereby agrees to defend and indemnify Lessee from any
claims related thereto.
H. EARLY POSSESSION AGREEMENT
Lessor agrees to grant Lessee early occupancy of said Premises, the date
to be upon substantial completion of Tenant Improvements and Final
Inspection by City of Lake Forest. Lease payments shall not commence
until thirty (30) days thereafter. Lessor shall have no liability or
responsibility for damages to the personal property of, or any loss
suffered by Lessee through vandalism, theft, or destruction of the
property by fire or other causes. It is agreed by Lessee and Lessor that
all the terms and conditions of the lease are to be in full force and
effect, except as to rent, as of the date of Lessee's possession of
subject Premises.
I. DELAY IN POSSESSION
In the event Lessor has not received Final Inspection of Tenant
Improvements by the City of Lake Forest on or before one-hundred twenty
(120) days from the date of issuance of the Tenant Improvement building
permit, then Lessor shall credit Lessee with one day of free rent for
every day beyond one hundred-twenty (120) days from issuance of said
tenant improvement building permit that Final Inspection is not
received. This 120-day period shall be extended proportionately by the
length of any delay in construction progress caused by Lessee, Lessee's
agents, or any other cause not under the reasonable control of Lessor.
Should the building not be completed and not be occupiable on or before
February 1, 1998, then Lessee shall have the right to cancel this Lease
with no further costs or obligations.
CCA /s/ CCA
----------------- -----------------
Lessor's Initials Lessee's Initials
"ADDENDUM B"
BY AND BETWEEN: XXXX PROPERTIES CORP., A FLORIDA CORPORATION
AS LESSOR; AND: AVIATION DISTRIBUTORS, INC., A DELAWARE CORPORATION
AS LESSEE
TO LEASE DATED: JUNE 9, 1997
-------------------------------------------------------------------------------
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed affixed on or to any part of the outside
or inside of the Building without the written consent of Lessor first
had and obtained and Lessor shall have the right to remove and destroy
any such sign, placard, picture, advertisement, name or notice without
notice to and at the expense of Lessee.
All approved signs or lettering on doors shall be printed, painted,
affixed or inscribed at the expense of Lessee.
Lessee shall not place anything or allow anything to be placed near
the glass of any window, door, partition or wall which may appear
unsightly from outside the Premises; provided, however, that the
Lessor may furnish and install a Building standard window covering
at all exterior windows. Lessee shall not without prior written
consent of Lessor cause or otherwise install sunscreen on any
window.
2. The sidewalks, halls, passages, exits, entrances, elevators and
stairways, driveways, and parking areas shall not be obstructed by
Lessees or used by them for any purposes other than for ingress and
egress from their respective Premises.
3. Lessee shall not alter any lock or install any new or additional locks
or bolts on any doors or windows of the Premises, without prior written
consent of Lessor and subsequent delivery of a duplicate key to Lessor.
4. The toilet rooms, 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 therein and
the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Lessee who, or whose
employees or invitees shall have caused it.
5. Lessee shall not overload the floor of the Premises or in any way deface
the Premises or any part thereof.
6. Lessee shall not use, keep or permit to be used or kept any foul or
noxious gas or substances in the Premises, or permit or suffer the
Premises to be occupied or used in a manner offensive or objectionable
to the Lessor or other occupants of the Building by reason of noise,
odors and/or vibrations, or interfere in any way with other Lessees or
those having business therein, nor shall any animals or birds be brought
in or kept in or about the Premises or the Building.
7. No cooking shall be done or permitted by any Lessee on the Premises, nor
shall the Premises be used for washing clothes, for lodging, or for any
improper, objectionable or immoral purpose.
8. Lessee shall not keep in the Premises or the Building any kerosene,
gasoline or inflammable or combustible fluid or material, or use any
method of heating or air conditioning other than that supplied or
approved in writing by the Lessor.
9. Lessor will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires
will be allowed without the consent of the Lessor. The locations of
telephones, call boxes and other office equipment affixed to the
Premises shall be subject to the approval of Lessor.
10. Lessor reserves that right to exclude or expel from the Building any
person who, in the judgment of Lessor, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Building.
11. Lessee shall not disturb, solicit, or canvass any occupant of the
Building and shall cooperate to prevent same.
12. Without the written consent of Lessor, Lessee shall not use the name of
the building in connection with or in promoting or advertising the
business of Lessee except as Lessee's address.
13. Lessor shall have the right to control and operate the public portions
of the Building, and the public facilities, and heating and air
conditioning, as well as facilities furnished for the common use of the
Lessees, in such manner as it deems best for the benefit of the Lessees
generally.
14. All garbage and refuse shall be placed by Lessee in the containers at
the location prepared by Lessor for refuse collection, in the manner and
at the times and places specified by Lessor. Lessee shall not burn any
trash or garbage of any kind in or about the Leased Premises or the
Business Park. All cardboard boxed must be "broken down" prior to being
placed in the trash container. All Styrofoam chips must be bagged or
otherwise contained prior to placement in the trash container, so as not
to constitute a nuisance. Pallets may not be disposed of in the trash
bins or enclosures. It is the Lessee's responsibility to dispose of
pallets by alternative means.
Should any garbage or refuse not be deposited in the manner specified by
Lessor, Lessor may after three (3) hours verbal notice to Lessee, take
whatever action necessary to correct the infracture at Lessee's expense.
15. No aerial antenna shall be erected on the roof or exterior walls of the
Leased Premises, or on the grounds, without in each instance, the
written consent of Lessor first being obtained. Any aerial or antenna so
installed without such written consent shall be subject to removal by
Lessor at any time without notice.
16. No loud speakers, televisions, phonographs, radios or other devises
shall be used in a manner so as to be heard or seen outside of the
Leased Premises or in neighboring space without the prior written
consent of Lessor.
17. The outside areas immediately adjoining the Leased Premises shall be
kept clean and free from dirt and rubbish by the Lessee, to the
satisfaction of the Lessor, and Lessee shall not place or permit any
obstruction or materials in such areas. No exterior storage shall be
allowed.
18. Lessee shall use at Lessee's cost such pest extermination contractors as
Lessor may direct and at such intervals as Lessor may require.
CCA /s/ CCA
----------------- -----------------
Lessor's Initials Lessee's Initials
ADDENDUM B
PAGE 2
19. These common types of damages will be charged back to the Lessee if they
are not corrected PRIOR TO VACATING the premises:
- Keys not returned to Lessor for ALL locks, requiring the service of
a locksmith and rekeying.
- Removal of all decorator painting, wallpapering and paneling, or
Lessor's prior consent to remain.
- Electrical conduit and receptacles on the surface of walls.
- Phone outlets, wiring, or phone equipment added on wall surfaces.
- Security tape/magnetic tape switches for burglar alarm systems
added to window and door surfaces.
- Penetration of roof membrane in any manner.
- Holes in walls, doors, and ceiling surfaces.
- Addition or change of standard door hardware.
- Painting or gluing of carpet or tile on warehouse floors.
- Glass damage.
- Damage to warehouse ceiling insulation.
- Stains or damage to carpeting beyond normal wear-and-tear.
- Damaged, inoperative, or missing electrical, plumbing, or HVAC
equipment.
- Debris and furniture requiring disposal.
- Damaged or missing mini-blinds, draperies, and baseboards.
- Installation of additional improvements without Lessor's prior
written approval or obtainment of required City building permits.
Lessee agrees to comply with all such rules and regulations upon notice from
Lessor. Should Lessee not abide by these Rules and Regulations, Lessor may
serve a three (3) day notice to correct deficiencies. If Lessee has not
corrected deficiencies by the end of the notice period, Lessee will be in
default of lease.
Lessor reserves the right to amend or supplement the foregoing rules and
regulations and to adopt and promulgate additional rules and regulations
applicable to the leased premises. Notice of such rules and regulations and
amendments and supplements thereto, if any, shall be given to the Lessee.
CCA /s/ CCA
----------------- -----------------
Lessor's Initials Lessee's Initials
ADDENDUM "D"
TO LEASE DATED: June 9, 1997
BY AND BETWEEN: XXXX PROPERTIES CORP.
A FLORIDA CORPORATION
AS LESSOR; AND: AVIATION DISTRIBUTORS, INC.
A DELAWARE CORPORATION
AS LESSEE
-------------------------------------------------------------------------------
OPTION TO EXTEND/LEASE EXTENSION
Providing LESSEE is not in default under any of the terms of this Lease,
Lessee shall have the Option to Extend the term of this Lease for ONE (1)
FIVE-YEAR period on all the same terms and conditions as contained in this
Lease, except that the base monthly rent commencing with the first month of
each Lease Extension shall be the THEN MARKET RATE for equivalent space in
the area of Spectrum Pointe, but in no event shall the new monthly rent be
less than the base monthly rent for the previous twelve (12) months.
Thereafter, the base monthly rent shall be subject to an upward only
adjustment at the beginning of each one (1) year period of the Lease
Extension/Option Period. The new base rent for each twelve (12) month period
shall be determined by adding to the annual rental for the previous twelve
(12) months a sum equal to any percentage increase that may occur in the
Consumer Price Index (Urban Wage Earners and Clerical Workers) as published
by the United States Department of Labor, Bureau of Labor Statistics for the
Los Angeles-Long Beach-Anaheim Xxxxxxxxxxxx Xxxx (0000 - 100 Base), for the
previous twelve months.
To exercise this Option to Extend, Lessee must give notice IN WRITING to
Lessor by Certified mail, return receipt requested at least ONE HUNDRED AND
EIGHTY DAYS prior to the expiration of the previous term.
If such index is not published for the period for which a rental adjustment
determination is to be based upon, another index generally recognized as
being comparable and authoritative shall be substituted by Lessor. Inasmuch
as the appropriate index numbers may not be available on the date when any
such adjustment is to be effective, the latest index numbers available shall
be used until such time as the appropriate index numbers become available, at
which time the calculation shall be made as soon as reasonably possible and
the rent payment shall be appropriately adjusted so as to include both the
correctly adjusted monthly rent current from the intended adjustment date.
In the event the Bureau of Labor Statistics ceases to publish the Consumer
Price Index, the parties hereto may agree to use any similar type of Index,
or if they are unable to agree upon a substitute Index, the parties shall
select an independent arbitrator who shall determine an alternate method of
computing the increased rental. In the event the parties hereto cannot agree
on an independent arbitrator, the Option to Extend shall terminate.
All terms and conditions of Article 39 of the Lease shall remain in full
force and effect.
CCA /s/ CCA
----------------- -----------------
Lessor's Initials Lessee's Initials
ADDENDUM "E"
TO LEASE DATED: June 9, 1997
BY AND BETWEEN: XXXX PROPERTIES CORP.
A FLORIDA CORPORATION
AS LESSOR; AND: AVIATION DISTRIBUTORS, INC.
A DELAWARE CORPORATION
AS LESSEE
-------------------------------------------------------------------------------
CONSTRUCTION OF TENANT IMPROVEMENTS
In consideration of Lessee's agreement to enter into this Lease, Lessor
agrees to cause the Premises to be constructed and improved substantially in
accordance with such improvements as are more particularly described and
detailed on the plans ("Design Plans") attached hereto as "Exhibit A-1" (Site
Plan), "Exhibit A-2" (Elevations), and "Exhibits B-1 and B-2" (Floor Plans),
all of which are attached hereto (collectively, the "Tenant Improvements").
As soon as reasonably possible after Lessor's receipt of signed Leases and
movie-in monies, Lessor shall cause to be prepared working drawings for the
Tenant Improvements and shall furnish them to Lessee for Lessee's prompt
review and approval, which approval shall not be unreasonably withheld. It
shall be unreasonable for Lessee to withhold such approval except if such
working drawings are inconsistent in some material respect with the Design
Plans attached hereto. If Lessee has not approved and signed working
drawings on or before five (5) business days from its receipt of same, then
such working drawings shall be deemed approved by Lessee. If Lessee
disapproves such working drawings, Lessee's notice of disapproval shall also
include the specific reasons authorized hereunder for such disapproval.
Lessor and Lessee shall negotiate in good faith to resolve as soon as
possible any differences between them regarding such working drawings.
Lessor agrees to construct "turn-key" Tenant Improvements substantially in
accordance with Design Plans attached hereto and made a part hereof, said
Improvements to be completed in a workmanlike manner using Lessor's building
standards and include the following:
1. All full-height drywall partitions taped, textured and painted;
2. All air conditioning and heating unit(s) and distribution and return air
ducts as required to provide industry standard office HVAC;
3. Designweave 30 oz. plush-pile carpet and pad with carpet base, and/or
vinyl composition tile with Xxxxx 4" rubber base;
4. Vertical blinds on all exterior windows;
5. Doors and lever-type door hardware;
6. Standard grid dropped ceiling with 2'x 4' fluorescent office lighting
(warehouse to have metal halide 30 foot candle warehouse lighting);
7. Building standard electrical throughout office area (includes J-boxes in
open areas) per a mutually agreed upon plan;
8. Building standard telephone and computer pull-string and plaster rings
in mutually-approved locations;
9. Space planning, working drawings and electrical drawings and all
applicable building permits for construction;
10. Kitchen with ten (10) linear feet of upper and lower laminate cabinets
with sink and garbage disposal;
11. Two (2) two-stall restrooms with laminate counter & sink, two (2)
one-stall/one urinal restrooms with laminate counter & sink, two (2)
one-stall warehouse restrooms, one private bathroom with shower in
President's office, and two (2) shower rooms for gym;
12. Five (5) foot laminate wet bar in President's office;
CCA /s/ CCA
----------------- -----------------
Lessor's Initials Lessee's Initials
ADDENDUM "E"
PAGE 2
The base building shall consist of concrete tilt-up construction and include
the following:
1. 24' minimum warehouse clearance;
2. Two (2) dock high loading positions and one (1) ground level loading
position;
3. 800 amps 277/480, 3 phase power panel;
4. .45/3,000 g.p.m. fire sprinkler system;
5. Foil insulation in the warehouse;
6. 6 inch concrete slab;
7. Sealed warehouse floor;
8. 4 ply roof;
9. 118 parking stalls.
Lessor reserves the right to construct Lessee's Tenant Improvements. Lessee
acknowledges that the tenant improvements to be completed by Lessor are
subject to the review and approval of final working drawings by Lessee,
Lessor and the City of Lake Forest. All Improvements shall be constructed in
accordance with all applicable building codes and ordinances, including but
not limited to all applicable ADA codes and requirements.
Lessor shall make every reasonable effort to complete the above Tenant
Improvements as soon as reasonably possible after receipt of signed leases
and move-in monies, and estimates said work to take approximately five (5)
months to complete from date of Lessor's receipt of building permits, but
Lessor can make no guaranty of an exact date of completion. However, Lessor
shall diligently prosecute the construction of the Tenant Improvement to
completion, using its best efforts to substantially complete same by November
15, 1997. Lessee shall be responsible for obtaining any permits or licenses
required for Lessee's particular use and operation in the Premises
including, without limitation, business licenses, permits for any Hazardous
Materials utilized in Lessee's operations, and any certificate of occupancy
which may be required for Lessee's particular use and operation in the
Premises.
ADDITIONAL TENANT IMPROVEMENTS: Lessor and Lessee recognize that the Tenant
Improvements identified and detailed on Exhibits X-0, X-0, X-0 and B-2 are
the result of agreements arrived at during previous meeting between Lessor
and Lessee. Any Additional Tenant Improvements are subject to Lessor's
approval thereof, with the understanding that the total cost of the
Additional Tenant Improvements shall be the sole responsibility of Lessee. If
Lessor and Lessee are unable to agree upon the plans for, or the cost of, any
such proposed Additional Tenant Improvements, Lessor shall not be obliged to
construct such Additional Tenant Improvements and may proceed with the
construction of the Tenant Improvements in accordance with the Working
Drawings. In the event Additional Tenant Improvements are approved by Lessor,
theN Lessor shall prepare an Additional Work Authorization ("AWA") outlining
the specific additional work to be completed and shall deliver same to
Lessee. Lessee shall execute said AWA and return it to Lessor, together with
a check (or other negotiated form of payment) for the total cost of such
Additional Tenant Improvements. Lessor shall not be obliged to commence
construction of any approved Additional Tenant Improvements until Lessor has
received such signed AWA and the check (or other negotiated form of payment).
Any construction delay arising out of Lessee's request for any Additional
Tenant Improvements shall result in the acceleration of the Commencement Date.
COMPLETION OF TENANT IMPROVEMENTS: The Tenant Improvements shall be deemed
"Substantially Completed" for purposes of this Lease upon final inspection
sign-off on the building permit for the Tenant Improvements by the City of
Lake Forest Building Department. Lessee shall conduct no construction or
other operations, with the exception of that work set forth in the Early
Access provision (Addendum A, Item E herein), in or on the Premises prior to
such Substantial Completion without Lessor's prior written consent which may
be granted or withheld in Lessor's sole discretion. Lessee shall fully
cooperate with Lessor in obtaining the certificate of occupancy.
See Addendum A, Item E for Early Access Agreement.
CCA /s/ CCA
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Lessor's Initials Lessee's Initials
AMENDMENT TO LEASE
DATE CHANGE
THIS AMENDMENT is dated for reference purposes only at Newport Beach,
California, this 26th day of JANUARY, 1998, by and between XXXX PROPERTIES
CORP., a Florida Corporation, as "Lessor", and AVIATION DISTRIBUTORS, INC. A
DELAWARE CORPORATION as "Lessee", for property located at: a XXXXXXX XXXXX,
XXXX XXXXXX, XX 00000, Lessor and Lessee, being parties to a Lease dated June
9, 1997, hereby express their mutual desire and intent to amend the Term of
the Lease as follows:
The term of this Lease shall be for: Seven (7) years
A. Original Commencement date was: THIRTY (30) DAYS AFTER SUBSTANTIAL
COMPLETION OF TENANT IMPROVEMENTS AND FINAL INSPECTION BY CITY OF
LAKE FOREST
B. Revised Commencement date is: MARCH 1, 1998
C. Lease Expiration date is: JANUARY 31, 2005
EARLY POSSESSION AGREEMENT: Lessor agrees to grant Lessee early occupancy of
said Premises, the date to be JANUARY 30, 1998. Lease payments shall not
commence until March 1, 1998. Lessor shall have no liability or
responsibility for damages to the personal property or any loss suffered by
Lessee through vandalism, theft, or destruction of the property by fire or
other causes. It is agreed by Lessee and Lessor that all the terms and
conditions of the lease are to be in full force and effect, except as to
rent, as of the date of Lessee's possession of subject Premises.
Except as modified herein, all other terms and conditions of the Lease
between the parties above described, and attached hereto, shall continue in
full force and effect.
LESSOR: LESSEE:
XXXX PROPERTIES CORP. AVIATION DISTRIBUTORS, INC.
A DELAWARE CORPORATION
By: By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------- -------------------------
Xxxxxxx X. Xxxxxxxxx Xxxxxxx X. Xxxxxxxx
Vice President, Marketing Chief Operating Office
Date: Date: 1/28/98
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