EXHIBIT 10.03(c)
FIFTH ADDENDUM TO LEASE
This Fifth Addendum to Lease is to be attached to and forms
a part of the lease (which together with any amendments,
modifications and extensions thereof is hereinafter called
the Lease), made on the 16th day of August, 1983, by and
between TCLW/Fullerton, a California general partnership
("Landlord") and Nelco Products, Inc., a Delaware
corporation ("Tenant") covering the premises known as 141 1
(including 1421, 143 1, and the Appleton Space as later
defined in this Addendum) E. Orangethorpe Avenue, Fullerton,
California. Where provisions of this Fifth Addendum
conflict with those of the Lease or prior Addenda, those of
this Fifth Addendum shall supersede:
1. Extension Term: The Lease is hereby extended for a
further term of nine (9) years to commence on the I st day
of October, 1994 and to end on the 30th day of September,
2003, on the condition that Landlord and Tenant comply with
all the provisions of the covenants and agreements contained
in the Lease.
2. Expansion: Tenant presently occupies a 71,862 square foot
portion of the Premises under the existing lease dated
August 16, 1983, as amended. Adjacent to the space
presently occupied by Tenant under the existing lease is a
space of 22,840 square feet occupied by Appleton Electric
Company (the Appleton Space). Appleton's lease is scheduled
to expire on October 31, 1994, but may hold over for a
limited period of time. The Appleton Space together with
the space presently occupied by Tenant shall comprise the
Premises covered by the Lease as amended, with a total of
94,702 square feet (the entire building). Landlord will
begin construction of the tenant improvements as soon as
possible, and will use its best efforts to deliver the
Appleton space to Tenant not later than July 15, 1995.
Landlord will at Landlord's expense install the tenant
improvements described in Exhibit A. The work shall be done
in a diligent manner.
3. Rent: Base Rent for the period from October 1, 1994 until
the delivery of the Appleton Space to Tenant shall be
$31,835 per month. On the later of August 1, 1995 or the
date on which the Appleton Space is delivered to Tenant, the
Base Rent shall increase to $41,952 per month, except that
Base Rent with respect to the Appleton Space ($10,118.12 per
month) shall be abated for the first 60 days beginning on
the later of August 1, 1995 or the date on which the
Appleton Space is delivered to Tenant. Base Rent shall
increase to $45,741 per month on October 1, 1998. On
October 1, 2001, Base Rent shall increase (but not decrease)
to 95% of "Market Rental Value", calculated in accordance
with the following:
(a) On October 1, 2001 the Base Rent shall be adjusted
to 95% of the "Market Rental Value" of the property as
follows:
1) Four months prior to the Market Rental Value
(MRV) Adjustment Date described above, Landlord and Tenant
shall meet to establish an agreed upon new MRV for the
specified term. If agreement cannot be reached, then:
I) Landlord and Tenant shall immediately appoint a
mutually acceptable appraiser or broker to establish the new
MRV within the next 30 days. Any associated costs will be
split equally between the parties, or
ii) Both Landlord and Tenant shall each immediately
select and pay the appraiser or broker of their choice to
establish a MRV within the next 30 days. If, for any
reason, either one of the appraisals is not completed within
the next 30 days, as stipulated, then the appraisal that is
completed at that time shall automatically become the new
MRV. If both appraisals are completed and the two
appraisers/brokers cannot agree on a reasonable average MRV
then they shall immediately select a third mutually
acceptable appraiser/broker to establish a third MRV within
the next 30 days. The average of the two appraisals closest
in value shall then become the new MRV. The costs of the
third appraisal will be split equally between the parties.
2) In any event, the new MRV shall not be less than
$45,741.00, the rent payable for September, 2001.
(b) Upon the establishment of each New Market Rental
Value as described in paragraph 3 (a) :
1) the monthly rental sum so calculated for each term as
specified in paragraph 3 (a) will become the new Base Rent
for the purpose of calculating any further Market Rental
Value Adjustment or Cost of Living Adjustments, pursuant to
paragraph 4 below.
4. Option To Extend: Landlord hereby grants to Tenant the
option to extend the term of this Lease for one additional
60 month period commencing when the prior term expires upon
each and all of the following terms and conditions:
(a) Tenant gives to Landlord, and Landlord actually
receives on a date which is prior to the date that the
option period would commence (if exercised) by at least 6
and not more than 9 months, a written notice of the exercise
of the option to extend this Lease for said additional term,
time being of essence. If said notification of the exercise
of said option is not so given and received, the option
shall automatically expire; said option may only be
exercised if:
(1) There is no default by Tenant of any provision in the
Lease:
(2) All of the terms and conditions of this Lease except
where specifically modified by this option shall apply;
(b) Market Rental Value Adjustment (MRV)
(1) If the option to extend is exercised and
becomes effective, then on October 1, 2003 the Base Rent
shall be adjusted to 95% of the "Market Rental Value" in
accordance with the format set forth in Paragraph 3 of this
Fifth Addendum to Lease but not less than the rent payable
during September of 2003. This "Market Rental Value" shall
become the new base rent for purposes of Paragraph 4 (c) (1)
below.
The Base Rent during the option period shall be
adjusted using the method indicated below:
(1) Cost of Living Adjustment (COL)
(I) On April 1, 2006 the Base Rent shall be adjusted
by the change, if any, from the Base Month specified below,
in the Consumer Price Index of the Bureau of Labor
Statistics of the U.S. Department of Labor for CPIU (All
Urban Consumers), for Los Angeles, Anaheim and Riverside.
All items (1982-1984 = 100), herein referred to as C.P.I."
(ii) The Base Rent payable shall be calculated as
follows: the Base Rent payable on March 1, 2006, shall be
multiplied by a fraction the numerator of which shall be the
C.P.I. of the calendar month 2 (two) months prior to the
month (s) specified in this paragraph 4 during which the
adjustment is to take effect, and the denominator of which
shall be the C.P.I. of the calendar month which is two (2)
months prior to October 1, 2003. The sum so calculated
shall constitute the new Base Rent hereunder, but in no
event, shall any such new Base Rent be less than 103% or
more than 107% of the rent payable for the month immediately
preceding the date for rent adjustment.
(iii) In the event the compilation and/or publication
of the C.P.I. shall be transferred to any other governmental
department or bureau or agency or shall be discontinued,
then the index most nearly the same as the C.P.I, shall be
used to make such calculation. In the event that Landlord
and Tenant cannot agree on such alternative index, then the
matter shall be submitted for decision to the American
Arbitration Association in accordance with the then rules
transferred to any other governmental department or bureau
or agency or shall be discontinued, then the index most
nearly the same as the C.P.I., shall be used to make such
calculation. In the event that Landlord and Tenant cannot
agree on such alternative index, then the matter shall be
submitted for decision to the American Arbitration
Association in accordance with the then rules of said
association and the decision of the arbitrators shall be
binding upon the parties. The cost of said Arbitrators
shall be paid equally by Landlord and Tenant.
(d) All other options provided for in previous lease
documents are superseded.
5. Security Deposit: The Security Deposit shall continue
unchanged as set forth in the Lease and prior addenda.
6. Parking. Tenant shall have the use of 152 parking
spaces.
7. Tenant's Proportionate Share: Tenant's Proportionate
Share as referenced in Paragraph 60 of the Lease shall be
increased to 100%.
8. Hazardous Substances: The following excerpt from the
American Industrial Real Estate Association Standard
Industrial/Commercial Single-Tenant Lease-Net form
(1990)("AIR Lease Form") shall become part of the lease
documents; the term "Lessor" shall mean Landlord and
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term *by
Lessee "Hazardous Substance" as used in this Lease shall
mean any product, substance, chemical, material or waste
whose presence, nature, quantity and/or intensity of
existence, use, manufacture, disposal, transportation,
spill, release or effect, either by itself or in combination
with other materials expected to be on the Premises, is
either: (i) potentially injurious to the public health,
safety or welfare the environment or the Premises, (ii)
regulated or monitored by any governmental authority, or
(iii) a basis for liability of Lessor to any governmental
agency or third party under any applicable statute or common
law theory. Hazardous Substance shall include, but not be
limited to, hydrocarbons, petroleum, gasoline, crude oil or
any products, by-products or fractions thereof. Lessee
shall not engage in any activity in, on or about the
Premises which constitutes a Reportable Use (as hereinafter
defined) of Hazardous Substances without the express prior
written consent of Lessor and compliance in a timely manner
(at Lessee's sole cost and expense) with all Applicable Law
(as defined in Paragraph 6.3). "Reportable Use" shall mean
(i) the installation or use of any above or below ground
storage tank, (ii) the generation, possession, storage, use,
transportation, or disposal of a Hazardous Substance that
requires a permit from, or with respect to which a report,
notice, registration or business plan is required to be
filed with, any governmental authority. Reportable Use
shall also include Lessee's being responsible for the
presence in, on or about the Premises of a Hazardous
Substance with respect to which any Applicable Law requires
that a notice be given to persons entering or occupying the
Premises or neighboring properties. Notwithstanding the
foregoing, Lessee may, without Lessor's prior consent, but
in compliance with all Applicable Law, use any ordinary and
customary materials reasonably required to be used by Lessee
in the normal course of Lessee's business permitted on the
Premises, so long as such use is not a Reportable Use and
does not expose the Premises or neighboring properties to
any meaningful risk of contamination or damage or expose
Lessor to any liability therefor. In addition, Lessor may
(but without any obligation to do so) condition its consent
to the use or presence of any Hazardous Substance, activity
or storage tank by Lessee upon Lessee's giving Lessor such
additional assurances as Lessor, in its reasonable
discretion, deems necessary to protect itself, the public,
the Premises and the environment against damage,
contamination or injury and/or liability therefrom or
therefor, including, but not limited to, the installation
(and removal on or before Lease expiration or earlier
termination) of reasonably necessary protective
modifications to the Premises (such as concrete encasements)
and/or the deposit of an additional Security Deposit under
Paragraph 5 hereof.
(b) Duty to Inform Lessor. If Lessee knows, or has
reasonable cause to believe, that a Hazardous Substance, or
a condition involving or resulting from same has come to be
located in, on, under or about the Premises, other than as
previously consented to by Lessor, Lessee shall immediately
give written notice of such fact to Lessor. Lessee shall
also immediately give Lessor a copy of any statement,
report, notice, registration, application, permit, business
plan, license, claim, action or proceeding give * to, or
received * from, any governmental authority or private
party, or persons entering or occupying the Premises,
concerning the presence, spill, release, discharge of, or
exposure to, any Hazardous Substance or contamination in,
on, or about the Premises, including but not limited to all
such documents as may be involved in any Reportable Uses
involving the Premises.
(c) Indemnification. Lessee shall indemnify,
protect, defend and hold Lessor, its agents, employees and
lenders and ground lessor, if any, and the Premises,
harmless from and against any and all loss of rents and/or
damages, liabilities, judgments, costs, claims, liens,
expenses, penalties, permits and attorney's and consultant's
fees arising out of or involving any Hazardous Substance or
storage tank brought onto the Premises by or for Lessee or
under Lessee's control. Lessee's obligations under this
Paragraph 6 shall include, but not be limited to, the
effects of any contamination or injury to person, property
or the environment created or suffered by Lessee, and the
cost of investigation (including consultant's and attorney's
fees and testing), removal, remediation, restoration and/or
abatement thereof, or of any contamination therein involved,
and shall survive the expiration or earlier termination of
this Lease. No termination, cancellation or release
agreement entered into by Lessor and Lessee shall release
Lessee from its obligations under this Lease with respect to
Hazardous Substances or storage tanks, unless specifically
so agreed by Lessor in writing at the time of such
agreement.
6.3 Lessee's Compliance with Law. Except as otherwise
provided in this Lease, Lessee, shall, at Lessee's sole cost
and expense, fully, diligently and in a timely manner,
comply with all "Applicable Law," which term is used in this
Lease to include all laws, rules, regulations, ordinances,
directives, covenants, easements and restrictions or record,
permits, the requirements of any applicable fire insurance
underwriter or rating bureau, and the recommendations of
Lessor's engineers and/or consultants, relating in any
manner to the Premises (including but not limited to matters
pertaining to (i) industrial hygiene, (ii) environmental
conditions on, in, under or about the Premises, including
soil and groundwater conditions, and (iii) the use,
generation, manufacture, production, installation,
maintenance, removal, transportation, storage, spill or
release of any Hazardous Substance or storage tank), now in
effect or which may hereafter come into effect, and whether
or not reflecting a change in policy from any previously
existing policy. Lessee shall, within five (5) days after
receipt of Lessor's written request, provide Lessor with
copies of all documents and information, including, but not
limited to, permits, registrations, manifests, applications,
reports and certificates, evidencing Lessee's compliance
with any Applicable Law specified by Lessor, and shall
immediately upon receipt, notify Lessor in writing (with
copies of any documents involved) of any threatened or
actual claim, notice, citation, warning, complaint or report
pertaining to or involving failure by Lessee or the Premises
to comply with any Applicable Law.
6.4 Inspection; Compliance. Lessor and Lessor's
Lender(s) (as defined in the Lease(a)) shall have the right
to enter the Premises at any time, in the case of an
emergency, and otherwise at reasonable times, for the
purpose of inspecting the condition of the Premises and for
verifying compliance by Lessee with this Lease and all
Applicable Laws (as defined in Paragraph 6.3), and to employ
experts and/or consultants in connection therewith and/or to
advise Lessor with respect to Lessee's activities, including
but not limited to the installation, operation, use,
monitoring, maintenance, or removal of any Hazardous
Substance or storage tank on or from the Premises. The
costs and expenses of any such inspections shall be paid by
the party requesting same, unless a Default or Breach of
this Lease, violation of Applicable Law, or a contamination,
caused or materially contributed to by Lessee is found to
exist or be imminent, or unless the inspection is requested
or ordered by a governmental authority as the result of any
such existing or imminent violation or contamination. In
any such case, Lessee shall upon request reimburse Lessor or
Lessor's Lender, as the case may be, for the costs and
expenses of such inspections.
9. Maintenance and Repairs: The following excerpt
from the AIR Lease Form shall become part of the
lease documents; the term "Lessor" shall mean
Landlord and "Lessee" shall mean Tenant.
7. Maintenance; Repairs.
7.1 Lessee's Obligations. **Lessee shall, at Lessee's
sole cost and expenses and at all times, keep the Premises
and every part thereof in good order, condition and repair,
and non-structural (whether or not such portion of the
Premises requiring repairs, 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 equipment or facilities
serving the Premises, such as plumbing, heating, air
conditioning, ventilating, electrical, lighting facilities,
boilers, fired or unfired pressure vessels, fire sprinkler
and/or standpipe and hose or other automatic fire
extinguishing system, including fire alarm and/or smoke
detection systems and equipment, fire hydrants, fixtures,
walls (interior and exterior), foundations, ceilings, roofs,
floors, windows, doors, plate glass, skylights, landscaping,
driveways, parking lots, fences, retaining walls, signs,
sidewalks and parkways located in, on, about, or adjacent to
the Premises. Lessee shall not cause or permit any
Hazardous Substance to be spilled or released in, on, under
or about the Premises (including through the plumbing or
sanitary sewer system) and shall promptly, at Lessee's
expense, take all investigatory and/or remedial action
reasonably recommended, whether or not formally ordered or
required, for the cleanup of any contamination of, and for
the maintenance, security and/or monitoring of the Premises,
the elements surrounding same, or neighboring properties,
that was caused or materially contributed to by Lessee, or
pertaining to or involving any Hazardous Substance and/or
storage tank brought onto the Premises by or for Lessee or
under its control. Lessee, in keeping the Premises in good
order, condition and repair, shall exercise and perform good
maintenance practices. Lessee's obligations shall include
restorations, replacements or renewals when necessary to
keep the Premises and all improvements thereon or a part
thereof in good order, condition and state of repair. If
Lessee occupies the Premises for seven (7) years or more
Lessor may require Lessee to repaint the exterior of the
buildings on the Premises as reasonably required, but not
more frequently than once every seven (7) years.
(b) Lessee shall, at Lessee's sole cost and expense,
procure and maintain contracts, with copies to Lessor, in
customary form and substance for, and with contractors
specializing and experienced in, the inspection, maintenance
and service of the following equipment and improvements, if
any, located on the Premises: (i) heating, air conditioning
and ventilation equipment, (ii) boiler, fired or unfired
pressure vessels, (iii) fire sprinkler and/or standpipe and
hose or other automatic fire extinguishing systems,
including fire alarm and/or smoke detection, (iv)
landscaping and irrigation systems, (v) roof covering and
drain maintenance and (vi) asphalt and parking lot
maintenance.***
**(a) Subject to the provisions of Paragraph 12 of Exhibit C
to Lease dated 8-16-83 and paragraphs 11 (fire and casualty
damage) and 13 (condemnation),
*** Notwithstanding the preceding, Lessor shall continue
providing the same services that it has provided prior to
this Fifth Addendum, such services to be handled in
accordance with the same billing procedure.
The Parties hereto have signed this extension agreement this
5th day of July 1995.
LANDLORD:
TCLW/Fullerton, a
By: Fullerton Industrial Properties, II
California general partnership
Managing General Partner
By: Xxxxxx-Xxxx II, general partner
By: Xxxxxx-Xxxx Co., general Partner
By: Xxxxxx X. Xxxx
Trustee of Weil Family Trust
Its: General Partner
Date: 7/5/95
TENANT:
NELCO PRODUCTS, INC.
a Delaware corporation
By: Xxx Xxxx
Its: President
Date: 6/30/95
