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EXHIBIT 10.9
Sublease Agreement
This Sublease Agreement ("Sublease") is made as of the first day of
August 2000 by and between BE Aerospace, Inc., a Delaware corporation (herein
"Sublandlord") and Advanced Thermal Technologies Inc., a Delaware corporation
and wholly owned subsidiary of BE Aerospace, Inc. (herein "Subtenant").
RECITALS
This Sublease is made with regard to the following facts:
A. Sublandlord is the tenant under the Standard
Industrial/Commercial Single-Tenant Lease-Net (herein the "Master Lease"), dated
October 1998, with Xxxxxx Realty, L.P., a Delaware limited partnership (herein
the "Master Landlord"). A copy of that Master Lease is attached to this Sublease
and marked as Exhibit A. Under the Master Lease, Sublandlord leases Building 5
of Anaheim Technology Center located at 0000 Xxxx Xx Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx, 00000, which includes approximately 98,200 square feet of Floor
Area, as improved, the Exclusive Use Areas and the Lessee Parking Areas (as such
terms are defined in the Master Lease), which building and areas are
collectively referred to herein as the "Premises".
B. Subtenant desires to sublease from Sublandlord a portion of
the Premises for Subtenant's exclusive use and occupancy, as well as the
nonexclusive use of the Premises' corridors, hallways, stairwells, elevators,
lobby(s), lunch rooms, conference and meeting rooms, shipping and receiving
docks, Exclusive Use Areas and Lessee Parking Areas (collectively the "Subleased
Premises"), which Subleased Premises are more particularly described in Exhibit
B attached to this Sublease. Sublandlord has agreed to sublease the Subleased
Premises to Subtenant on the terms, covenants and conditions stated in this
Sublease.
NOW, THEREFORE, in consideration of the mutual covenants contained in
this Sublease, and for valuable consideration, the receipt and sufficiency of
which are acknowledged by the parties, the parties agree as follows:
1. Sublease. Sublandlord subleases to Subtenant and
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Subtenant subleases from Sublandlord the Subleased Premises, subject to the
terms, covenants, and conditions contained in this Sublease. Sublandlord and
Subtenant agree that the Subleased Premises shall, among other things, contain
up to 20,000 square feet of Floor Area for Subtenant's exclusive use and
occupancy as more particularly described in Exhibit B attached to this Sublease.
2. Term. The terms and provisions of this Sublease shall be
effective between Sublandlord and Subtenant as of the date of this Sublease. The
term of this Sublease will commence on August 01, 2000, and will expire July 31,
2005, unless sooner terminated by Subtenant upon six (6) months written notice
to Sublandlord.
3. Rent. Subtenant will pay rent during the term of this Sublease in
the amount of $25,000.00 dollars per month ("Rent"), payable monthly in advance
on the first business day of each month. Furthermore, in the event that the term
of this Sublease begins or ends on a date that is not the first day of a month,
Rent will be prorated as of that date.
The monthly Rent payable under this section of the Sublease is
inclusive of all real property taxes relating to the Subleased Premises, all
operating, utility, security, janitorial and maintenance costs and expenses
relating to Subtenant's use and occupancy of the Subleased Premises, the
premises' common areas, the Exclusive Use Areas and the Lessee Parking Areas, as
well as all premiums and costs for real property insurance covering the Premises
and the Subleased Premises. Concurrent with Subtenant's execution of this
Sublease, Subtenant will deliver to Sublandlord the first month's Rent in the
amount of $25,000.00.
4. Additional Rent. Subtenant acknowledges that during the term of this
Sublease should it need more than 20,000 square feet of Floor Area (as defined
in the Master Lease) for its exclusive use and occupancy and/or adds a second or
third shift to its manufacturing operations, then rent, in additional to the
Rent set forth in section 3 above, would be due from it to Sublandlord.
The amount of the additional rent will be mutually agreed to
by Sublandlord and Subtenant and will relate to the amount of additional Floor
Area needed by Subtenant and/or the increase in operating, utility, janitorial,
maintenance,
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security expenses attributed to a second or third shift. If Subtenant and
Sublandlord are unable to agree to the amount of additional rent, then such
issue shall be promptly submitted by the parties to this Sublease to binding
arbitration through the American Arbitration Association, which entity shall
decide the issue using a panel of three arbitrators in accordance with its
standard rules and procedures. The cost of the arbitration shall be borne
equally by Subtenant and Sublandlord. Subtenant agrees to pay the additional
rent to Sublandlord monthly along with the Rent due under section 3 of this
Sublease.
5. Use. Subtenant agrees to use the Subleased Premises in accordance
with paragraph 1.8 of the Master Lease entitled Permitted Use, and for no other
purpose.
6. Master Lease. As between the parties to this Sublease only, in the
event of a conflict between the terms of the Master Lease referenced herein and
the terms of this Sublease, the terms of this Sublease shall control.
7. Performance by Sublandlord; Status of Master Lease.
7.1. Subtenant will not have any claim against Sublandlord
based on the Master Landlord's failure or refusal to comply with any of the
provisions of the Master Lease unless that failure or refusal is a result of
Sublandlord's act or failure to act.
7.2 Obtaining Master Landlord's Consent. Whenever the consent
of the Master Landlord is required under the Master Lease, Sublandlord agrees to
use its reasonable, good faith efforts to obtain that consent or performance on
behalf of Subtenant.
7.3 No Existing Defaults. Sublandlord represents and warrants
to Subtenant that the Master Lease is in full force and effect, and Sublandlord
has neither given nor received a notice of default under the Master Lease.
7.4 Preservation of Master Lease. Sublandlord agrees not to
terminate the Master Lease voluntarily, or modify the Master Lease in a manner
that adversely affects Subtenant's rights under this Sublease. Subtenant and
Sublandlord will each refrain from any act or omission that would result in a
breach of any of the covenants, provisions, or conditions of the Master Lease on
the part of the Lessee under the Master Lease.
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8. Brokers. The parties to this Sublease represent and warrant to each
other that neither party dealt with any broker or finder in connection with the
consummation of this Sublease.
9. Insurance and Condemnation.
9.1 Liability Insurance. Subtenant shall obtain and keep in
force during the term of this Sublease, either by a separate policy or an
endorsement to an existing policy, a Commercial General Liability policy of
insurance protecting Subtenant against claims for bodily injury and property
damage based upon, involving or arising out of the use, occupancy or maintenance
of the Subleased Premises and all areas appurtenant thereto, with coverage in an
amount not lees than $1,000,000 per occurrence.
9.2 Subtenant Property Insurance. Subtenant at its cost shall
either by a separate policy or an endorsement to an existing policy maintain
insurance coverage on all of Subtenant's personal property in or about the
Subleased Premises in such amounts and with such deductibles as deemed prudent
by Subtenant.
9.3 Condemnation Proceeds. Despite anything contained in the
Master Lease to the contrary, as between Sublandlord and Subtenant, in the event
of damage to or condemnation of the Subleased Premises, all insurance proceeds
or condemnation awards actually received by Sublandlord under the Master Lease
with respect thereto shall be deemed to be the property of Subtenant. In the
event of damage to or condemnation of the Subleased Premises, however,
Sublandlord will have no obligation to rebuild or restore the Subleased
Premises.
10. Environmental Compliance.
10.1 Subtenant's Obligations.
(a) Subtenant agrees that it will remediate both during and
following the term of this Sublease, to the satisfaction of the applicable Laws,
any release into, on or about the Subleased Premises of Hazardous Substance (as
such term is defined in the Master Lease) that is required to be remediated
under applicable Laws, to the extent such release
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results from Subtenant's use of the Subleased Premises. In those instances where
Subtenant has a duty to remediate pursuant to the immediately preceding
sentence, Subtenant shall commence the process necessary for such remediation
with reasonable promptness following the receipt of written notice from
Sublandlord or any applicable governmental or regulatory agency to the
governmental requirement for such remediation, and thereafter shall pursue such
remediation to completion with reasonable promptness. Subtenant agrees that any
such remediation required under this section 10.1 shall be conducted in a manner
consistent with the standard of remediation applied to similar contaminations
with respect to comparable commercial projects in California. Notwithstanding
any provision of this section 10.1 to the contrary, (i) Subtenant shall not be
responsible for any current, pre-existing or future contamination of the
Subleased Premises by Hazardous Substances to the extent such contamination did
not result from Subtenant's use of the Subleased Premises, and (ii) Subtenant
shall have no obligation to pay to or reimburse Sublandlord for (or otherwise
bear) any expense, cost or liability with respect to such contamination to the
extent the same did not result from Subtenant's use of the Subleased Premises.
(b) In any case where Subtenant is required to remediate (or
bear the cost of remediating) any Hazardous Substance in, on or about the
Subleased Premises (i) Subtenant shall be permitted to supervise investigation
of the extent of the release of Hazardous Substance in question, (ii) Subtenant
shall be permitted, subject to the reasonable approval Sublandlord, to structure
and negotiate the remediation plan to be submitted to and approved by the
governmental authorities having jurisdiction, and (iii) Subtenant shall be
permitted to supervise the actual remediation. In connection with the foregoing,
Subtenant shall be provided, free of charge, with reasonable access to all
portions of the Subleased Premises possibly relevant to the foregoing
activities, including reasonable access beyond the term of the Sublease.
11. Amounts Payable. All amounts payable under this Sublease by
Subtenant are payable directly to Sublandlord.
12. Provisions of Master Lease Not Applicable. The provisions of the
Master Lease, except as otherwise provided herein, do not apply to this
Sublease.
13. "As-Is." Sublandlord will deliver the Subleased
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Premises to Subtenant in their current "as is" and "where is" condition.
Notwithstanding the foregoing, Sublandlord warrants to Subtenant that, as of
August 01, 2000, the Subleased Premises are free of defects and in good
operating condition and are in compliance with all applicable Laws, as defined
in this Sublease. If any non-compliance with said warranty or warranties exists,
Sublandlord shall promptly after receipt of notice from either Subtenant, or any
other third party as applicable, setting forth the nature and extent of such
non-compliance, rectify the same at Sublandlord's sole expense.
14. Subtenant's Furniture and Equipment. Sublandlord and Subtenant
agree that the Subleased Premises contain the furniture and equipment listed on
Exhibit C to this Sublease (herein the "Furniture and Equipment"), which
Furniture and Equipment are the sole property of Subtenant and will remain the
sole property of Subtenant on the expiration and/or earlier termination of this
Sublease. It is expected that Subtenant will bring additional furniture and
equipment to the Subleased Premises during the term of the Sublease, and that
Exhibit C will be amended from time to time to reflect such additional property.
Subtenant has the authority and right to reasonably remove the Furniture and
Equipment from the Subleased Premises in its sole discretion.
15. Compliance with Laws and Rules/Regulations. Subtenant shall, at
Subtenant's expense, comply with all applicable statutes, ordinances, rules,
regulations, orders, covenants and restrictions (herein collectively the Laws)
in effect during the term of this Sublease, relating to the specific use or
occupation of the Subleased Premises by Subtenant. Subtenant shall also observe
and comply with the Rules and Regulations set forth in Exhibit F to the Master
Lease, and all reasonable non-discriminatory modifications thereof and additions
thereto from time to time put into effect by the Master Landlord and furnished
to Subtenant by Sublandlord.
16. Subtenant Indemnity. Upon timely notice from Sublandlord, Subtenant
agrees to protect, defend, indemnify, and hold harmless Sublandlord from and
against any and all liabilities, claims, expenses, losses and damages (including
reasonable attorney fees and costs), that may at any time be asserted against
Sublandlord by (a) the Master Landlord for failure of Subtenant to perform any
of the covenants, agreements, terms, provisions, or conditions contained in this
Sublease, or (b) any third party as a result of Subtenant's
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wrongful use or occupancy of the Subleased Premises; except to the extent any of
the foregoing is caused by the negligence or willful misconduct of Sublandlord.
In the event any action or proceeding is brought against Sublandlord by reason
of any claim under this section 16, Subtenant, upon timely notice from
Sublandlord, shall defend the same at Subtenant's expense by counsel reasonably
satisfactory to Sublandlord. The provisions of this section 16 will survive the
expiration or earlier termination of the Master Lease or this Sublease.
17. Sublandlord Indemnity. Upon timely notice from Subtenant,
Sublandlord agrees to protect, defend, indemnify, and hold harmless Subtenant
from and against any and all liabilities, claims, expenses, losses and damages
(including reasonable attorney fees and costs), that may at any time be asserted
against Subtenant by any third party, including the Master Landlord, as a result
of Sublandlord's use or occupancy of the Premises, except to the extent any of
the foregoing is caused by the negligence or willful misconduct of Subtenant. In
the event any action or proceeding is brought against Subtenant by reason of any
claim under this section 17, Sublandlord, upon timely notice from Subtenant,
shall defend the same at Sublandlord's expense by counsel reasonably
satisfactory to Subtenant. The provisions of this section 17 will survive the
expiration or earlier termination of the Master Lease or this Sublease.
18. Notices. Any notice that may or must be given by either party under
this Sublease will be delivered (i) personally, (ii) by certified mail, return
receipt requested, or (iii) by a nationally recognized overnight courier,
addressed to the party to whom it is intended. Any notice given to Sublandlord
or Subtenant shall be sent to the respective address set forth on the signature
page below, or to such other address as that party may designate for service of
notice by a notice given in accordance with the provisions of this section 18. A
notice sent pursuant to the terms of this section 18 shall be deemed delivered
(A) when delivery is completed, if delivered personally, (B) three (3) business
days after deposit into the United States mail, or (C) the business day
following deposit with a nationally recognized overnight courier if the delivery
is marked for delivery "next business day."
19. Certificates. Each party to this Sublease will, from time to time
as requested by the other party, on not less than thirty (30) days written
notice, execute, acknowledge, and
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deliver to the other party a statement in writing certifying that this Sublease
is unmodified and in full force and effect (or if there have been modifications
that this Sublease is in full force and effect as modified and stating the
modifications). That statement will certify the dates to which Rent, additional
rent, and any other charges have been paid. That statement will also state
whether, to the knowledge of the person signing the certificate, the other party
is in default in the performance of any of its obligations under this Sublease.
If the other party is in default, the statement will specify each default of
which the signer then has knowledge. It is intended that others with whom the
party requesting the certificate may be dealing may rely on this statement.
20. Assignments or Subleasing. Subtenant is not entitled to assign this
Sublease or to sublet all or any portion of the Subleased Premises without the
prior written consent of Sublandlord, which consent may be withheld by
Sublandlord for no reason or any reason.
21. Signage. Subtenant, at its expense, shall the right to place any
sign upon the interior and exterior of the Subleased Premises, as well as any
monument signs on East La Palma Avenue, to the extent of and consistent with
Sublandlord's signage rights and obligations contained in paragraph 34(a) and
(b) the Master Lease (section 27 of the Addendum to the Master Lease).
22. Limitation on Liability. The obligations of Sublandlord and
Subtenant under this Sublease do not constitute personal obligations of the
individual partners, directors, officers, members or shareholders of Sublandlord
or Subtenant, and neither party shall seek recourse against the individual
partners, directors, officers, members or shareholders of the other party.
23. General Provisions.
23.1. Severability. If any provision of this Sublease or the
application of any provision of this Sublease to any person or circumstance is,
to any extent, held to be invalid or unenforceable, the remainder of this
Sublease or the application of that provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, will not be
affected, and each provision of this Sublease will be valid and be enforced to
the fullest extent permitted by law.
23.2. Entire Agreement; Waiver. This Sublease
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constitutes the final, complete and exclusive statement between the parties to
this Sublease pertaining to the Subleased Premises, supersedes all prior and
contemporaneous understandings or agreements of the parties, and is binding on
and inures to the benefit of their respective heirs, representatives,
successors, and assigns. No party has been induced to enter into this Sublease
by, nor is any party relying on any representation or warranty outside those
expressly set forth in this Sublease. Any agreement made after the date of this
Sublease is ineffective to modify, waive, release, terminate, or effect an
abandonment of this Sublease, in whole or in part, unless that agreement is in
writing, is signed by the parties to this Sublease, and specifically states that
agreement modifies this Sublease.
23.3 Captions. Captions to the sections in this Sublease are
included for convenience only and do not modify any of the terms of this
Sublease.
23.4 Further Assurances. Each party to this Sublease will at
its own cost and expense execute and deliver such further documents and
instruments and will take such other actions as may be reasonably required or
appropriate to evidence or carry out the intent and purposes of this Sublease.
23.5. Governing Law. This Sublease will be governed by and in
all respects construed in accordance with the laws of the State of California.
23.6. Consent of Landlord. The Master Landlord's written
consent to this Sublease is not required pursuant to section 12.1 (f) of the
Master Lease. Subtenant is a wholly owned subsidiary of Sublandlord and
Sublandlord is not assigning the Master Lease to Subtenant.
23.7. Capitalized Terms. All terms spelled with initial
capital letters in this Sublease that are not expressly defined in this Sublease
will have the respective meanings given such terms in the Master Lease to the
extent applicable.
23.8. Word Usage. Unless the context clearly requires
otherwise, (a) the plural and singular numbers will each be deemed to include
the other; (b) the masculine, feminine, and neuter genders will each be deemed
to include the others; (c) "shall," "will," "must," "agrees," and "covenants"
are each mandatory; (d) "may" is permissive; (e) "or" is not
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exclusive; and (f) "includes" and "including" are not limiting.
The parties have executed this Sublease as of the date specified above.
Sublandlord:
BE Aerospace, Inc.,
a Delaware corporation
By: /s/ X. Xxxxxxxx
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Its: Vice President
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Address of Sublandlord:
0000 Xxxxxxxxx Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
TEL: (000)000-0000
FAX: (000)000-0000
Subtenant:
Advanced Thermal Technologies Inc.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxx
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Its: President
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Address of Subtenant:
0000 Xxxx Xx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
TEL:(000)000-0000
FAX:(000)000-0000
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EXHIBIT A
Master Lease.
EXHIBIT B
Description of Subleased Premises subject to Subtenant's exclusive use
and occupancy.
EXHIBIT C
Subtenant's list of Furniture and Equipment.
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