Exhibit 10.03
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and
between TCLW/Fullerton, a general partnership, hereinafter
referred to as "Landlord," and Nelco Products, Inc., a
Delaware Corporation, hereinafter referred to as "Tenant":
WITNESSETH:
1. Premises and Term. In consideration of the
obligation of Tenant to pay rent as herein provided, and in
consideration of the other terms, provisions and covenants
hereof, Landlord hereby demises and leases to Tenant, and
Tenant hereby takes from Landlord, certain premises
consisting of space within a building described as follows:
Approximately 36,462 square feet at 1411 Orangethorpe,
Fullerton, California within the County of Orange, State of
California, and more particularly described on Exhibit "A"
attached hereto and incorporated herein by this reference
(hereinafter referred to as the "premises").
TO HAVE AND TO HOLD the same for a term commencing on
the "commencement date" (as hereinafter defined) and ending
59 months thereafter (provided, however, that in the event
the commencement date other than the first day of a calendar
month, said term shall extend for said number of months in
addition to the remainder of the calendar month following
the commencement date), unless earlier terminated in
accordance with the provisions of this lease.
A. The "commencement date" shall be November 1,
1993. Tenant acknowledges that it has inspected and accepts
the premises, and specifically the buildings and
improvements comprising the same, in their present condition
as suitable for the purpose for which the premises are
leased. Taking of possession by Tenant shall be deemed
conclusively to establish that said buildings and other
improvements are in good and satisfactory condition as of
when possession was taken. Tenant hereby waives the benefit
of California Civil Code 1941. Tenant further acknowledges
that no representations as to the repair of the premises,
nor premises to alter, remodel or improve the premises have
been made by Landlord, unless such are expressly set forth
in this lease.
2. Base Rent and Security Deposit.
A. Tenant agrees to pay as rental for the premises
to Landlord or order, without deduction or set off, for the
entire term hereof, Twelve Thousand Three Hundred Ninety
Seven and 00/100 dollars ($12,397.00) per month. One such
monthly installment shall be due and payable on the date
hereof and a like monthly installment shall be due and
payable without demand on or before the first day of each
calendar month succeeding the commencement date recited
above during the hereby demised term, except that the rental
payment for any fractional calendar month at the
commencement or end of the lease term shall be prorated.
All costs and expenses which are the responsibility of
Tenant also constitute "rent." In the event Tenant fails to
pay any installment of rent hereunder (1), to help defray
the additional cost to Landlord for processing such late
payments. Tenant shall pay to Landlord on demand a late
charge in an amount equal to (2) of such installment. The
provision for such late charge shall be in addition to all
of Landlord's other rights and remedies hereunder or at law
and shall not be construed as liquidated damages or as
limiting Landlord's remedies in any manner.
B. In addition, Tenant agrees to deposit with
Landlord on the date hereof the sum of Twenty Four Thousand
Seven Hundred Ninety Four and 00/100 dollars ($24,794.00),
which sum shall be held by Landlord, (3) for interest, as
security for the performance of Tenant's covenants and
obligations under this lease, it being expressly understood
and agreed that such deposit is not an advance rental
deposit or a measure of Landlord's damages in case of
Tenant's default. Upon the occurrence of any event of
default by Tenant, Landlord may, from time to time, without
prejudice to any other remedy provided herein or provided by
law, use such funds to the extent necessary to make good any
arrears of rent or other payments due Landlord hereunder,
and any other damage, injury, expense or liability caused by
such event of default; and Tenant shall pay to Landlord on
demand the amount so applied in order to restore the
security deposit to its original amount. Although the
security deposit shall be deemed the property of Landlord,
any remaining balance of such deposit shall be returned by
Landlord to Tenant at such time after termination or
expiration of this lease that all of Tenant's obligations
under this lease have been fulfilled (4).
3. Use. The demised premises shall be used only for
the purpose of (5) receiving, storing, shipping and selling
(other than retail) for interest, materials and merchandise
made and/or distributed by Tenant and for such other lawful
purposes as may be incidental thereto. Under no
circumstances shall the premises be used for gambling or the
retail sale of alcoholic beverages, whether or not those
uses may be lawful. Outside storage is prohibited without
Landlord's prior written consent. Tenant shall at its own
cost and expense obtain any and all licenses and permits
necessary for any such use. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to
the premises or use thereof, and shall promptly comply with
all governmental orders and directives for the correction,
prevention and abatement of nuisances in or upon, or
connected with, the premises, all at (6). Without limiting
the generality of the foregoing, and subject to paragraph 6,
Tenant shall at its own cost and expense install and
construct all physical improvements to the premises,
interior and exterior, required by any Federal, State or
local building code or other law or regulation enacted after
the date on which this lease is executed by Tenant, or after
said date determined retroactively to apply to the premises,
(7) made necessary by the nature of Tenant's use of the
premises. Tenant shall not permit any objectionable or
unpleasant odors, smoke, dust, gas, noise or vibrations to
emanate from the premises, nor take any other action which
would constitute a nuisance or would disturb or endanger any
other tenants of the building in which the premises are
situated or unreasonably interfere with their use of their
respective premises. Tenant shall not place a load upon the
floor of the premises which exceeds the load per square foot
which such floor was designed to carry and which is allowed
by law. Without Landlord's prior written consent, Tenant
shall not receive, store or otherwise handle any product,
material or merchandise which is explosive or highly
inflammable. Tenant will not permit the premises to be used
for any purpose which would render the insurance thereon
void or the insurance risk more hazardous. If at any time
during the term of this lease the State Board of Insurance
or other insurance authority disallows any of Landlord's
sprinkler credits or imposes an additional penalty or
surcharge in Landlord's insurance premiums because of
Tenant's original or subsequent placement or use of storage
racks or binds, Tenant's method of storage, the nature of
Tenant's inventory or any other act of Tenant, Tenant agrees
to pay, as additional rental, the increase (between fire
walls) in Landlords insurance premiums, and, upon demand by
Landlord, to correct at Tenant's expense the cause of such
disallowance, penalty or surcharge to the satisfaction of
the particular insurance authority. Additionally, Tenant
shall pay to any other tenants in the building in which the
premises are situated, upon demand, any increases in such
other tenant's insurance premiums or charges caused by the
acts of Tenant.
4. Taxes.
A. Tenant agrees to pay before they become
delinquent all general and special, ad valorem and specific
taxes, excises, assessments, and governmental charges of any
kind and nature whatsoever (hereinafter collectively
referred to as the "taxes") lawfully levied or assessed
against the land, building, grounds, parking areas,
driveways, sidewalks and/or alleys on or around the
premises. Tenant shall furnish to Landlord, not later than
twenty (20) days before the date any such taxes becoming
delinquent, official receipts of the appropriate taxing
authority or other evidence satisfactory to Landlord
evidencing payment thereof. If Tenant should fail to pay
any taxes, assessments, or governmental charges required to
be paid by Tenant hereunder, in addition to any other
remedies provided herein, Landlord may, if it so elects, pay
such taxes, assessments, and governmental charges. Any sums
so paid by Landlord shall be deemed to be additional rent
due and payable on demand by Landlord.
B. In the event the premises constitute a portion
of a multiple occupancy building, Tenant agrees to pay to
Landlord, as additional rent, (8), the amount of Tenant's
"proportionate share" of the "taxes" referred to in
subparagraph A, above. Tenant's "proportionate share," as
used in this lease, shall mean a fraction, the numerator of
which is the square footage of the premises and the
denominator or which is the square footage of the building
containing the premises.
C. If at any time during the term of this lease
there shall be levied, assessed or imposed on Landlord, by
any governmental entity, any general or special, ad valorem
or specific, capital levy, excise or other tax, assessment,
levy or charge directly on the rental received under this
lease, and/or any license fee, excise or franchise tax,
assessment, levy or charge measured by or based, in whole or
in part, upon such rentals, and/or any transfer,
transaction, or similar tax, assessment, levy or charge
based directly or indirectly upon the transaction
represented by this lease, and/or any occupancy, use, per
capita or other tax, assessment, levy or charge based
directly or indirectly upon the use or occupancy of the
premises, then all such taxes, assessments, levies and
charges shall be deemed to be included within the term
"taxes" for the purposes of this paragraph 4 (9).
D. Tenant may, alone or along with any other
tenants of said building, at its or their sole cost and
expense, in its or their own name(s) and/or in the name of
Landlord, dispute and contest and "taxes" by appropriate
proceedings diligently conducted in good faith, but only
after Tenant and all other tenants, if any, joining with
Tenant in such contest, have deposited with Landlord the
amount so contested and unpaid, or their proportionate
shares thereof, as the case may be, which shall be held by
Landlord without obligation for interest until the
termination of the proceedings, at which time the amount(s)
deposited shall be applied by Landlord toward the payment of
the items held valid (plus any court costs, interest,
penalties and other liabilities associated with the
proceedings), and Tenant's share of any excess shall be
returned to Tenant. Tenant further agrees to pay to
Landlord, upon demand, Tenant's share (as among all tenants
who participated in the contest) of all court costs,
interest, penalties, and other liabilities relating to such
proceedings. Tenant hereby indemnifies and agrees to hold
Landlord harmless from and against any cost, damage or
expense (including attorneys' fees) in connection with any
such proceedings.
E. Any payment to be made pursuant to this
paragraph 4 with respect to the tax year in which this lease
commences or terminates shall bear the same ratio to the
payment which would be required to be made for the full tax
year as that part of such tax year covered by the term of
this lease bears to a full tax year. (10)
5. Repairs and Maintenance.
A. Tenant shall, at its own cost and expense keep
and maintain the premises in good condition, promptly making
all necessary repairs and replacements, interior and
exterior, non-structural, ordinary and extraordinary,
including but not limited to, windows, glass and plate
glass, doors, any special office entry, walls and finish
work, floors and floor covering, roof, foundation,
downspouts, gutters heating and air conditioning systems,
dock boards, truck doors, dock bumpers, ramps, paving,
plumbing work and fixtures, termite and pst extermination,
regular removal of trash and debris, regular mowing of any
grass, caring for shrubs, trimming, weed removal and general
landscape maintenance, including rail spur areas,
maintaining the parking areas, driveways, alleys, sidewalks,
and the whole of the premises in a clean and sanitary
condition, maintaining any spur track serving the premises
(Tenant agrees to sign a joint maintenance agreement with
the railroad company servicing the premises, if requested by
the railroad company), and providing guard and alarm
service. Tenant shall, at its own cost and expense, repaint
the exterior walls, overhead doors, canopies, entries,
headrails, gutters and other exposed parts of the building
which reasonably require periodic repainting to prevent
deterioration or to maintain aesthetic standards. Tenant
shall maintain trash receptacles within the building on the
premises.
B. The cost of maintenance and repair or any common
party wall (any wall, divider, partition or any other
structure separating the premises from any adjacent premises
occupied by other tenants) shall be shared equally by Tenant
and the tenant occupying adjacent premises. Tenant shall
not damage any party wall or disturb the integrity and
support provided by any party wall and shall, at its sole
cost and expense, promptly repair any damage or injury to
any party wall caused by Tenant or its employees, agents or
invitees.
C. In the event the premises constitute a portion
of a multiple occupancy building, Tenant and its employees,
customers and invitees shall have the nonexclusive right to
use, in common with the other parties occupying said
building, the parking areas, driveways and alleys adjacent
to said building, subject to such reasonable rules and
regulations as Landlord may from time to time prescribe.
Further, in such event, Landlord (11) to perform the paving
and landscape maintenance, exterior painting and common
sewage line plumbing and any other responsibilities which
are otherwise Tenant's obligations under subparagraph A
above, and Tenant shall, in lieu of the obligations set
forth under subparagraph A above with respect to such items,
be liable for its proportionate share (as defined in
subparagraph 4B, above) of the cost and expense of the care
for the grounds around the building, including but not
limited to, exterior repainting and common sewage line
plumbing; provided, however, that Landlord shall have the
right to require Tenant to pay such other reasonable
proportion of said costs as may be determined by Landlord in
its sole discretion; and further provided that if Tenant or
any other particular tenant of the building can be clearly
identified as being responsible for obstruction or stoppage
of the common sanitary sewage line, then Tenant, if Tenant
is responsible, or such other responsible tenant, shall pay
the entire cost thereof, upon demand, as additional rent.
Tenant shall at Landlord's option either (i) pay when due
(but not more frequently than monthly) its share, determined
as aforesaid, of such costs and expenses along with the
other tenants of the building directly to the persons
performing such work, or (ii) reimburse Landlord upon demand
(but not more frequently than monthly), as additional rent,
for the amounts of its share as aforesaid of such costs and
expenses in the event Landlord elects to perform or cause to
be performed such work.
D. N/A.
E. Tenant shall, at its own cost and expense, enter
into a regularly scheduled preventive maintenance/service
contract with a maintenance contractor for servicing all
heating and air conditioning systems and equipment within
the premises. The maintenance contractor must be approved
by Landlord. The service contract must include all services
suggested by the equipment manufacturer within the
operation/maintenance manual and must become effective
within thirty (30) days of the date Tenant takes possessio
of the premises. All guarantees/warranties provided with
the heating and air conditioning systems will be recognized
within this program.
(12)
6. Alterations.
A. Tenant shall not make any alterations, additions
or improvements to the premises including but not limited to
roof and wall penetrations without the prior written consent
of Landlord (13). Tenant may, without the consent of
Landlord, but at its own cost and expense and in a good
workmanlike manner make such minor alterations, additions or
improvements or erect, remove or alter such partitions, or
erect such shelves, bins, machinery and trade fixtures as it
may deem advisable, without altering the basic character of
the building or improvements and without overloading or
damaging such building or improvements, and in each case
complying with all applicable governmental laws, ordinances,
regulations and other requirements. All alterations,
additions, improvements and partitions erected by Tenant
shall be and remain the property of Tenant during the term
of this lease and Tenant shall, unless Landlord otherwise
elects as hereinafter provided, remove all alterations,
additions, improvements and partitions erected by Tenant and
restore the premises to their original condition by the date
of termination or expiration of this lease; provided,
however, that if Landlord so elects prior to termination or
expiration of this lease, such alterations, additions,
improvements and partitions shall become the property of
Landlord as of the date of termination or expiration of this
lease and shall be delivered up to the Landlord with the
premises. All shelves bins, machinery and trade fixtures
installed by Tenant may be removed by Tenant prior to the
termination or expiration of this lease if Tenant so elects,
and shall be removed if required by Landlord; upon any such
removal Tenant shall restore the premises to their original
condition. All such removals and restoration shall be
accomplished in a good and workmanlike manner so as not to
damage the primary structure or structural qualities of the
buildings and other improvements situated on the premises.
(14)
B. Before commencing any work relating to
alterations, additions and improvements affecting the
premises, Tenant shall notify Landlord in writing of the
expected date of commencement thereof. Landlord shall then
have the right at any time and rom time to time to post and
maintain on the premises such notices as Landlord deems
necessary to protect the premises and Landlord from
mechanics' liens, materialmen's liens or any other liens.
At any time Tenant either desires or is required to make any
repairs, alterations, additions, improvements or utility
installations pertaining to the premises, Landlord may
require Tenant, at Tenant's sole cost and expense, to obtain
and provide to Landlord a lien and completion bond in a form
and by a surety acceptable to Landlord in an amount equal to
the estimate cost of (15) such improvements, to insure
Landlord against liability for mechanics' and materialmen's
liens and to insure completion of the work.
7. Signs. (16) Tenant shall have the right to install
signs upon the exterior of said buildings (17) and subject
to any applicable governmental laws, ordinances, regulations
and other requirements. Tenant shall remove all such signs
by the termination or expiration of this lease. Such
installations and removals shall be made in such manner as
to avoid injury or defacement of the building and other
improvements, and Tenant shall repair any injury or
defacement, including without limitation discoloration,
caused by such installation and/or removal.
8. Inspection. Landlord and Landlord's agents and
representatives shall have the right to enter and inspect
the premises at any reasonably time during business hours,
for the purpose of ascertaining the condition of the
premises or in order to make such repairs as may be required
or permitted to be made by Landlord under the terms of this
lease. During the period that is six (6) months prior to
the end of the term hereof, Landlord and Landlord's agents
and representatives shall have the right to enter the
premises at any reasonable time during business hours for
the purpose of showing the premises and shall have the right
to erect on the premises a suitable sign indicating the
premises are available. (18) shall arrange to meet with
(19) for a joint inspection of the premises at the time of
vacating.
9. Utilities. Tenant shall pay for all water, gas,
heat, light, telephone, sewer, sprinkler charges and other
utilities and services used on or from the premises,
together with any taxes, penalties, surcharges or the like
pertaining thereto and any maintenance charges for utilities
and shall furnish all electric light bulbs and tubes. If
any such services are not separately metered to Tenant,
Tenant shall pay a reasonable proportion as determined by
Landlord of all charges jointly metered with other premises.
Landlord shall in no event be liable for any interruption or
failure of utility services on the premises.
10. Assignment and Subletting.
A. Tenant shall not have the right to assign this
lease or to sublet the whole or any part of the premises, or
allow, for valuable consideration, the occupancy of all or
any part of the premises by another, without the prior
written consent of Landlord (20). Notwithstanding any
permitted assignment or subletting, Tenant shall at all
times remain directly, primarily and fully responsible and
liable for the payment of the rent herein specified and for
compliance with all of its other obligations under the
terms, provisions and covenants of this lease. Upon the
occurrence of an "event of default" as hereinafter defined,
if the premises or any part thereof are then assigned or
sublet, Landlord, in addition to any other remedies herein
provided, or provided by law, may at its option collect
directly from such assignee or subtenant all rents becoming
due to Tenant under such assignment or sublease and apply
such rent against any sums due to Landlord from Tenant
hereunder, and no such collection shall be construed to
constitute a novation or release of Tenant from the further
performance of Tenant's obligations hereunder.
B. In the event Tenant desires to sublet the
premises, or any portion thereof, or assign this lease,
Tenant shall give written notice thereof to Landlord setting
forth the name of the proposed subtenant or assignee, the
term, use, rental rate and other particulars of the proposed
subletting or assignment, including without limitation (21)
satisfactory to Landlord that the proposed subtenant or
assignee will immediately occupy and thereafter use the
entire premises (or any sublet portion thereof) for the
remaining term of this lease (or for the entire term of the
sublease, if shorter). In addition to Landlord's approval
right pursuant to subparagraph 10A above, Landlord shall
have the option, i the event of any proposed assignment or
subletting (22) to cancel this lease as of the date the
subletting or assignment described in Tenant's notice is to
be effective. The option shall be exercised, if at all, by
Landlord giving Tenant written notice thereof within sixty
(60) days following Landlord's receipt of Tenant's written
request. Upon any such cancellation Tenant shall pay to
Landlord all amounts, as estimated by Landlord, payable by
Tenant to such termination date, with respect to taxes,
insurance, repairs, maintenance, restoration and other
obligations, costs or charges which are the responsibility
of Tenant hereunder. Further, upon any such cancellation
Landlord and Tenant shall have no further obligations or
liabilities to each other under this lease, except with
respect to obligations or liabilities which accrue hereunder
as of such cancellation date (in the same manner as if such
cancellation date were the date originally fixed for the
expiration of the term hereof). Without limitation,
Landlord may lease the premises to the prospective subtenant
or assignee, without liability to the Tenant. Landlord's
failure to exercise said cancellation right as herein
provided shall not be construed as Landlord's consent to the
proposed subletting or assignment.
C. Landlord shall have the right to assign any of
its rights and obligations under this lease. (23)
11. Fire and Casualty Damage.
A. Landlord agrees to maintain standard fire and
extended coverage insurance covering the building of which
the premises are a part in an amount not less than 80% (or
such greater percentage as may be necessary to comply with
the provisions of any co-insurance clauses of the policy) of
the "replacement cost" thereof as such term is defined in
the Replacement Cost Endorsement to be attached thereto,
insuring against the perils of Fire, (24), Lightning,
Extended Coverage, Vandalism and Malicious Mischief,
extended by Special Extended Coverage Endorsements to insure
against all other Risks of Direct Physical Loss, and
Earthquake and Flood, such coverages and endorsements to be
as defined, provided and limited in the standard bureau
forms prescribed by the insurance regulatory authority for
the state in which the premises are situated for use by
insurance companies admitted in such state for the writing
of such insurance on risks located within such state.
Subject to the provisions of subparagraphs 11B and 11E,
below, such insurance shall be for the sole benefit of
Landlord and under its sole control. Tenant agrees to pay
to Landlord, as additional rent, Landlord's cost of
maintaining such insurance on said building (or in the event
the premises constitute a portion of a multiple occupancy
building, Tenant's full proportionate share [as defined in
subparagraph 4B above] of such cost). Said payments shall
be made to Landlord within ten (10) days after presentation
to Tenant of Landlord's statement setting forth the amount
due. Any payment to be made pursuant to this subparagraph A
with respect to the year in which this lease commences or
terminates shall bear the same ratio to the payment which
would be required to be made for the full year as the part
of such year covered by the term of this lease bears to a
full year. (25)
B. If the buildings situated upon the premises
should be damaged or destroyed by any peril covered by the
insurance to be provided by Landlord under subparagraph 11A
above, Tenant shall give immediate notice thereof to
Landlord and Landlord shall at its sole cost and expense
thereupon proceed with reasonable diligence to rebuild and
repair such buildings to substantially the condition in
which they existed prior to such damage or destruction,
except that Landlord shall not be required to rebuild,
repair or replace any part of the partitions, fixtures,
additional and other improvements which may have been placed
in, on or about the premises by Tenant and except that
Tenant shall pay to Landlord, upon demand, any applicable
deductible amount specified under Landlord's insurance. The
rent payable hereunder shall in no event abate by reason of
any damage or destruction. (26)
C. (27)
D. Tenant covenants and agrees to maintain
insurance on all alterations, additions, partitions and
improvements erected by or on behalf of Tenant in, on or
about the premises in an amount not less than 80% (or such
greater percentage as may be necessary to comply with the
provisions of any co-insurance clause of the policy) of the
"replacement cost" thereof, as such term is defined in the
Replacement cost Endorsement to be attached thereto. Such
insurance shall insure against the perils and be in form,
including stipulated endorsements, as provided in
subparagraph 11A hereof. Such insurance shall be for the
sole benefit of Tenant and under its sole control. All such
policies shall b procured by Tenant from responsible
insurance companies satisfactory to Landlord. Certified
copies of policies of such insurance, together with receipt
evidencing payment of the premiums therefor, shall be
delivered to Landlord prior to the commencement date of this
lease. Not less than fifteen (15) days prior to the
expiration date of any such policies, certified copies of
renewals thereof (bearing notations evidencing the payment
of renewal premiums) shall be delivered to Landlord. Such
policies shall further provide that no less than thirty (30)
days written notice shall be given to Landlord before such
policy may be cancelled or changed to reduce insurance
provided thereby.
E. Notwithstanding anything herein to the contrary,
in the event the holder of any indebtedness secured by a
mortgage or deed of trust covering the Landlord's interest
in the premises requires that the insurance proceeds be
applied to such indebtedness, then Landlord shall have the
right to terminate this lease by delivering written notice
of termination to Tenant within fifteen (15) days after such
requirement is made by any such holder, whereupon all rights
and obligations hereunder shall cease and terminate. (28)
F. Landlord and Tenant hereby each release the
other from any and all liability or responsibility to the
other or anyone claiming through or under them by way of
subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured in policies of
insurance covering such property, even if such loss or
damage shall have been caused by the fault or negligence of
the other party, or anyone for whom such party may be
responsible; provided, however, that this release shall be
applicable and in force and effect only with respect to loss
or damage occurring during such times as the releasor's
policies shall contain a clause or endorsement to the effect
that any such release shall not adversely affect or impair
said policies or prejudice the right of the releasor to
recover thereunder and then only to the extent of the
insurance proceeds payable under such policies. Each of
Landlord and Tenant agrees that it will request its
insurance carriers to include in its policies such a clause
or endorsement. If extra cost shall be charged therefor,
each party shall advise the other thereof and of the amount
of the extra cost, and the other party, at its election, may
pay the same, but shall not be obligated to do so.
12. Liability. Tenant does hereby indemnify and
agree to forever save and hold harmless Landlord from and
against any and all damages, claims, losses, demands, costs,
expenses (including reasonable attorneys' fees and costs),
obligations, liens, liabilities, actions and causes of
action, threatened or actual, which Landlord may suffer or
incur arising out of or in connection with Tenant's
obligations under this lease, including without limitation,
Tenant's use of the premises, the conduct of Tenant's
business, any activity, work or things done, permitted or
suffered by Tenant in or about the premises. Tenant's
nonobservance or nonperformance of any law, ordinance or
regulations, or any negligence of the Tenant or any of
Tenant's agents, contractors employees, guests licensees and
invitees. Tenant further agrees that in case of any claim,
demand, action or proceeding against Landlord, Tenant, upon
notice from Landlord shall defend Landlord at Tenant's
expense. In the event Tenant does not provide a defense
against any and all such claims, demands, liens,
liabilities, actions or causes of action, threatened or
actual, then Tenant will, in addition to the above, pay
Landlord the attorneys' fees, legal expenses and costs
incurred by Landlord in providing or preparing such defense
and Tenant agrees to cooperate with Landlord in such
defense, including, but not limited to, the providing of
affidavits and testimony upon request of Landlord.
Tenant shall obtain at its cost and keep in full force
during the term of the lease a policy of Combined Single
Limit Bodily Injury and Property Damage Insurance insuring
Landlord and Tenant against any liability arising out of the
use, occupancy or maintenance of the premises and all areas
appurtenant thereto by Tenant. Such insurance shall be in
an amount not less than (29). The policy shall contain
cross liability endorsements and shall insure performance by
Tenant of the foregoing indemnity provisions of this lease.
The limits of said insurance shall not, however, limit the
liability of Tenant hereunder.
13. Condemnation.
A. If the whole or any substantial part of the
premises should be taken for any public or quasi-public use
under governmental law, ordinance or regulation, or by right
of eminent domain, or by private purchase in lieu thereof,
and the taking would prevent or materially interfere with
the use of the premises for the purpose for which they are
then being used, this lease shall terminate (30) and the
rent shall be abated during the unexpired portion of this
lease, effective when the physical taking of such premises
shall occur (31).
B. If part of the premises shall be taken for any
public or quasi-public use under any governmental law,
ordinance or regulation, or by right of eminent domain, or
by private purchase in lieu thereof, and this lease is not
terminated as provided in subparagraph A, above, this lease
shall not terminate but the rent payable hereunder during
the unexpired portion of this lease shall be reduced in the
same ratio as the square footage of the premises taken bears
to the total square footage of the premises.
C. This paragraph 13 shall be Tenant's sole and
exclusive remedy in the event of any such taking or purchase
in lieu thereof. Landlord shall be entitled to any and all
compensation, damages, income, rents, awards (except for an
award specified by the condemning authority for Tenant's
unamortized portion of its improvements (32) if any) or any
interest therein whatsoever which may be paid or made in
connection therewith, and Tenant shall have no claim against
Landlord for the value of any unexpired term of this lease.
Tenant hereby waives the benefits of California Code of
Civil Procedure 1265.130.
14. Holding Over. Tenant will, at the termination
or expiration of this lease by lapse of time or otherwise,
yield up immediate possession to Landlord. In the event of
any holding over by Tenant after the expiration or
termination of this lease, unless the parties hereto
otherwise agree in writing, the hold over tenancy shall be
subject to termination by Landlord at any time upon not less
than seven (7) days advance written notice, and all of the
other terms and provisions of this lease shall be applicable
during that period, except that Tenant shall pay Landlord
from time to time upon demand, as rental for the period of
any hold over, an amount equal to one and one-half (1 1/2)
the rental which would have been payable by Tenant had the
hold over period been a part of the original term of this
lease, computed on a daily basis for each day during which
such possession is withheld. In the event of any such hold
over, Tenant agrees to vacate and deliver the premises to
Landlord within seven (7) days after Tenant's receipt of
notice from Landlord to vacate. No holder over by Tenant
whether with or without consent of Landlord, shall operate
to extend this lease except as otherwise expressly provided.
15. Quiet Enjoyment. Landlord covenants that it
now has, or will acquire before Tenant takes possession of
the premises, good title to the premises, excepting the lien
for current taxes not yet due, such mortgages or deeds of
trust as are permitted by the terms of this lease, zoning
ordinances and other building and fire ordinances and
governmental regulations relating to the use of such
property, and easements, restrictions and other matters of
record. Landlord represents and warrants that it has full
right and authority to enter into this lease and that
Tenant, upon paying the rental herein set forth and
performing its other covenants and agreements herein set
forth, shall peaceable and quietly have, hold and enjoy the
premises for the term hereof without hindrance or
molestation from Landlord, subject to the terms and
provisions of this lease. Landlord agrees to make
reasonable efforts to protect Tenant from interference or
disturbance by other tenants or third persons, however,
Landlord shall not be liable for any such interference or
disturbance, nor shall Tenant be released from any of the
obligations of this lease because of such interference or
disturbance.
16. Events of Default. The following events shall
be deemed to be "events of default" by Tenant under this
lease:
(a) Tenant shall fail to pay any installment of the
rent herein reserved when due, or any payment with respect
to taxes hereunder when due, or any other payment or
reimbursement to Landlord required herein when due, and such
failure shall continue for a period of (33) from the date
such payment was due.
(b) Tenant shall become insolvent, or shall make a
transfer in fraud of creditors, or shall make an assignment
for the benefit of creditors.
(c) Tenant shall file a petition under any section
or chapter of the National Bankruptcy Act, as amended or
under any similar law or statute of the United State or any
state thereof; or Tenant shall be adjudged bankrupt or
insolvent in proceedings filed against Tenant thereunder.
(d) A receiver or trustee shall be appointed for
all or substantially all of the assets of Tenant.
(e) Tenant shall desert any substantial portion of
the premises.
(f) Tenant shall fail to comply with any term,
provision or covenant of this lease (other than the
foregoing in this paragraph 16), and shall not cure such
failure within (34).
17. Remedies. If any event of default occurs,
Landlord may at any time thereafter, with or without notice
or demand, except as stated hereafter, and without limiting
Landlord in the exercise of any right or remedy which
Landlord may have by reason of such event of default;
(a) Enter upon and take possession of the premises.
IN such event, Landlord shall have the right to remove all
persons and property from the premises and store such
property in a public warehouse or elsewhere at the cost and
risk of and for the account of Tenant, and all such persons
shall quit and surrender possession of the premises to
Landlord, Tenant hereby waives all claims for damages which
may be caused by the entry of Landlord and taking possession
of the premises or removing and storing the furniture and
property and hereby agrees to indemnify and save Landlord
harmless from any loss, costs, damages or liability
occasioned thereby, and no such entry shall be considered or
construed to be a forcible entry. Should Landlord elect to
enter, as herein provided, or should Landlord take
possession pursuant to legal proceedings or pursuant to any
notice provided by law, Landlord may terminate this lease
pursuant to paragraph (b) hereof.
(b) Terminate Tenant's right to possession of the
premises at any time. Acts of maintenance, efforts to relet
the premises, or the appointment of a receiver on Landlord's
initiative to protect Landlord's interest under this lease
shall not constitute a termination of Tenant's right to
possession. On termination, Landlord may recover from
Tenant (i) the worth at the time of the award of the unpaid
rent that had been earned at the time of termination of
Tenant's right to possession of the premises; (ii) the worth
at the time of the award of the amount by which the unpaid
rent that would have been earned after the date of
termination of Tenant's right to possession until the time
of award exceeds the amount of the loss of rent for the same
period that Tenant proves could have been reasonably
avoided; (iii) the worth at the time of the award of the
amount by which the unpaid rent for the balance of the term
after the time of award exceeds the amount of the loss of
rent for the same period that Tenant proves could have been
reasonably avoided; and (iv) any other amount, and court
costs, necessary to compensate Landlord for all detriment
proximately caused by Tenant's default. "The worth at the
time of the award," as used in (i) and (ii) of this
paragraph, is to be computed by allowing interest at the
rate of ten percent (10%) per annum. "The worth at the time
of the award" as referred to in (iii) of this paragraph is
to be computed by discounting the amount at the discount
rate of the Federal Reserve Bank of San Francisco at the
time of the award, plus 1%.
(c) Continue this lease in full force and effect,
and this lease will continue in effect as long as Landlord
does not terminate Tenant's right to possession, and
Landlord shall have the right to collect rent when due.
(d) Cure the default at Tenant's cost. If Landlord
at any time, by any reason of Tenant's default, pays any sum
or does any act that requires the payment of any sum, the
sum paid by Landlord shall be due immediately from Tenant to
Landlord upon demand by Landlord. The sum, together with
late charges, as provided in paragraph 2, above, of this
lease, shall be additional rent.
(e) Pursue any other remedy now or hereafter
available to Landlord under the laws or judicial decisions
of the State of California.
19. Mortgages. (35)
20. Landlord's Default.
A. In the event Landlord should become in default
in any payments due and payable on any such mortgage
described in paragraph 19 hereof, Tenant is authorized and
empowered after giving Landlord five (5) days prior written
notice of such default and Landlord's failure to cure such
default, to pay any such delinquent items for and on behalf
of Landlord, and the amount of any item so paid by Tenant
for or on behalf of Landlord, together with any interest or
penalty required to be paid in connection therewith, shall
be payable on demand by Landlord to Tenant; provided,
however, that Tenant shall not be authorized and empowered
to make any payment under the terms of this paragraph 20
unless the item paid shall be superior to Tenant's interest
hereunder, in the event Tenant pays any mortgage debt in
full, in accordance with this paragraph, it shall, at its
election, be entitled to the mortgage security by assignment
or subrogation.
21. Tenant's Remedies. Except as otherwise
specifically provided in this lease, Tenant hereby waives
and relinquishes any right which Tenant may have to
terminate this lease or withhold rent on account of any
damage, condemnation, destruction or state of disrepair of
the premises (including, without limiting the generality of
the foregoing, those rights under California Civil Code
1932(2), 1933(4), 1941 and 1942).
22. Mechanic's Liens. Tenant shall have no
authority, express or implied, to create or place any lien
or encumbrance of any kind or nature whatsoever upon, or in
any manner to bind, the interest of Landlord in the
premises, or to charge the rentals payable hereunder for any
claim in favor of any person dealing with Tenant, including
those who may furnish materials or perform labor for any
construction or repairs, and each such claim shall affect
and each such lien shall attach to, if at all, only the
leasehold interest granted to Tenant by this instrument.
Tenant covenants and agrees that it will pay or cause to be
paid all sums legally due and payable by it on account of
any labor performed or materials furnished in connection
with any work performed on the premises on which any lien is
or can be validly and legally asserted against its leasehold
interest in the premises or the improvements thereon and
that it will save and hold Landlord harmless from any and
all loss, cost or expense based on or arising out of
asserted claims or liens against the leasehold estate or
against the right, title and interest of the Landlord in the
premises or under the terms of this lease. Tenant will not
permit any mechanics' lien or liens to be placed upon the
premises or any building or improvement thereon during the
term hereof, and in case of the filing of any such lien
Tenant will promptly pay same. If any such lien shall
remain in force and effect for twenty (20) days after
written notice thereof from Landlord to Tenant, Landlord
shall have the right and privilege at Landlord's option of
paying and discharging the same or any portion thereof
without inquiry as to the validity thereof, and any amounts
so paid, including expenses and applicable late charge,
shall be so additional rent hereunder due from Tenant to
Landlord and shall be repaid to Landlord immediately on
rendition of bill therefor. Notwithstanding the foregoing,
Tenant shall have the right to contest any such lien in good
faith and with all due diligence so long as any such
contest, or action taken in connection therewith, protects
the interest of Landlord and Landlord's mortgagee in the
premises and Landlord and any such mortgagee are, by the
expiration of said twenty (20) days period, furnished proof
of such protection, and indemnification by Tenant against
any loss, cost or expense related to any such lien and the
contest thereof, satisfactory to Landlord and any such
mortgagee.
23. Sale by Landlord. In the event the original
Landlord hereunder, or any successor owner of the premises,
shall sell or convey the premises, Tenant agrees to attorn
to such new owner. In the event of such sale, Landlord
shall transfer to the new owner the balance of any security
deposit remaining after lawful deductions and, after notice
to Tenant (36) shall be relieved of all future liability
with respect to such security deposit.
24. Attorneys' Fees. If either Landlord or Tenant
commences or engages in, or threatens to commence or engage
in, an action by or against the other party arising out of
or in connection with this lease or the premises, including
but not limited to any action for recovered of rental due
and unpaid (37) to recover possession or for damages for
breach of this lease, the prevailing party shall be entitled
to have and recover from the losing party reasonable
attorneys' fees and other costs incurred in connection with
the action and in preparation for said action. (38)
25. Further Documents. Upon Landlord's request,
Tenant agrees to modify this lease to meet the requirements
of a lender selected by Landlord who demands such
modification as a condition precedent to granting a loan and
placing a deed of trust upon the building or land of which
the premises is a part, provided such modification does not
(1) increase the minimum rent or percentage rent; (2) alter
the term of lease or any extended term; or (3) materially
adversely affect Tenant's estate or right under this lease.
26. Waiver. The waiver by (39) of any term,
covenant, agreement or condition herein contained shall not
be deemed to be a waiver of any subsequent breach of the
same or any other term, covenant, agreement or condition
herein contained, nor shall any custom or practice which may
grow up between the parties in the administration of this
lease be construed to waive or to lessen the right of (40)
to insist upon the performance by (41) in strict accordance
with all of the provisions of this lease. The subsequent
acceptance of rent hereunder by Landlord shall not be deemed
to be a waiver or any preceding breach by Tenant of any
provisions, covenant, agreement or condition of this lease,
other than the failure of Tenant to pay the particular rent
so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such rent.
27. Notices. Each provision of this instrument or
of any applicable governmental laws, ordinances, regulations
and other requirements with reference to the sending,
mailing or delivery of any notice or the making of any
payment by Landlord to Tenant or with reference to the
sending, mailing or delivery of any notice or the making of
any payment by Tenant to Landlord shall be deemed to be
complied with when and if the following steps are taken:
(a) All payments required to be made by Landlord to
Tenant hereunder shall be payable to Tenant at the address
hereinbelow set forth or at such other address as Landlord
may specify from time to time by written notice delivered in
accordance herewith.
(b) All payments required to be made by Landlord to
Tenant hereunder shall be payable to Tenant at the address
hereinbelow set forth, or at such other address within the
continental United States as Tenant may specify from time to
time by written notice delivered in accordance herewith.
(c) Any notice or document required or permitted to
be delivered hereunder shall be deemed to be delivered
whether actually received or not (42) deposited in the
United States Mail, postage prepaid, Certified or Registered
Mail, addressed to the parties hereto at the respective
addresses set out below, or at such other address as they
have theretofore specified by written notice delivered in
accordance herewith:
LANDLORD: TENANT:
TCLW/Fullerton Nelco Products, Inc.
a general partnership a Delaware Corporation
17941 Fitch 1411 Orangethorpe
Irvine, California Fullerton, California
(43)
If and when included within the term "Landlord," as used in
this instrument, there are more than one person, firm or
corporation, all shall jointly arrange among themselves for
their joint execution of such a notice specifying some
individual at some specific address (44) for the receipt of
notices and payments to Landlord; if and when included
within the term "Tenant," as used in this instrument, there
are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution
of such a notice specifying some individual at some specific
address within the continental United States for the receipt
of notices and payments to Tenant. All parties included
within the terms "Landlord" and "Tenant," respectively,
shall be bound by notices given in accordance with the
provisions of this paragraph to the same effect as if each
had received such notice.
28. Entire Agreement. This lease contains the
entire agreement between the parties respecting the lease of
the premises to Tenant.
29. Time of the Essence. Time is of the essence of
this lease.
30. Miscellaneous.
A. Words of any gender used in this lease shall be
held and construed to include any other gender, and words in
the singular number shall be held to include the plural,
unless the context otherwise requires.
B. The terms, provisions and covenants and
conditions contained in this lease shall apply to, inure to
the benefit of, and be binding upon, the parties hereto and
upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein
expressly provided. Each party agrees to furnish to the
other, promptly upon demand, a corporate resolution, proof
of due authorization by partners, or other appropriate
documentation evidencing the due amortization of such party
to enter into this lease.
C. The captions inserted in this lease are for
convenience only and in no way define, limit or otherwise
describe the scope or intent of this lease, or any provision
hereof, or in any way affect the interpretation of this
lease.
D. (45)
E. This lease may not be altered, changed or
amended except by an instrument in writing signed by both
parties hereto.
F. All obligations of Tenant (46) hereunder not
fully performed as of the expiration or earlier termination
of the term of this lease shall survive the expiration or
earlier termination of the term hereof, including without
limitation all payment obligations with respect to taxes and
insurance and all obligations concerning the condition of
the premises. Upon the expiration or earlier termination of
the term hereof, and prior to Tenant vacating the premises.
Landlord and Tenant shall jointly inspect the premises and
Tenant shall pay to Landlord any amount estimated by
Landlord as necessary to put the premises, including without
limitation all heating and air conditioning systems and
equipment therein, in good (47). Tenant shall also, prior
to vacating the premises, pay to Landlord the amount, as
estimated by Landlord, of Tenant's obligation hereunder for
real estate taxes and insurance premiums for the year in
which the lease expires or terminates. All such amounts
shall be used and held by Landlord for payment of such
obligations of Tenant hereunder, with Tenant being liable
for any additional costs therefor upon demand by Landlord,
or with any excess to be returned to Tenant after all such
obligations have been determined and satisfied, as the case
may be (48). Any security deposit held by Landlord shall be
credited against the amount payable by Tenant under this
paragraph 30F.
G. If any clause or provision of this lease is
illegal, invalid or unenforceable under present or future
laws effective during the term of this lease, then and in
that event, it is the intention of the parties hereto that
the remainder of this lease shall not be affected thereby,
and it is also the intention of the parties to this lease
that in lieu of each clause of provision of this lease that
is illegal, invalid or unenforceable, there be added as a
part of this lease contract a clause or provision as similar
in terms to such illegal, invalid or unenforceable clause or
provisions as may be possible and be legal, valid and
enforceable.
H. Because the premises are on the open market and
are presently being shown, this lease shall be treated as an
offer with the premises being subject to prior lease and
such offer subject to withdrawal or non-acceptance by
Landlord or to other use of the premises without notice, and
this lease shall not be valid or binding unless and until
the lease is accepted by Landlord in writing and a fully
executed copy is delivered to both parties hereto.
I. Paragraph I and Exhibit "A" of this lease
notwithstanding, the "premises," and Tenant's estate under
this lease, do not include any right, title or interest in
water, oil, gas or other hydrocarbons, or other mineral
rights, all of which are excepted and reserved to Landlord
with the sole and exclusive right in Landlord to sell,
lease, assign or otherwise transfer the same, but without
any right of Landlord or any such transferee to enter upon
the surface of the property described in said Exhibit "A"
during the term of this lease except as otherwise expressly
provided elsewhere in this lease.
J. All references in this lease to "the date
hereof" or similar references shall be deemed to refer to
the last date, i point of time, on which all parties hereto
have executed this lease.
31. Additional Provisions.
Those additional provisions set forth in Exhibit "C"
attached hereto are hereby incorporated by this reference as
if fully set forth herein. (49-54)
IN WITNESS WHEREOF, this lease is, EXECUTED BY
LANDLORD, this 16th day of August, 1983.
TCLW/Fullerton
Crow Fullerton
By: Clifton K. Chang
General Partner
Executed by Tenant, this 22nd day of August, 1983.
NELCO PRODUCTS, INC.
By: E.P. Smoot
President
EXHIBIT "C" TO LEASE-DATED AUGUST 16, 1983 BETWEEN NELCO
PRODUCTS, INC., AS
("TENANT") AND TCLW/FULLERTON, AS("LANDLORD"):
1.before the end of the ten (10) day grace period in
paragraph 16 (a) of the Lease.
2.five percent (5%)
3.in an interest bearing account
4.Provided Tenant is not in default of the Lease,
$12,397.00 of the security deposit plus interest
thereon shall be released to Tenant on September,30,
1984
5.manufacturing,
6.Provided that such required improvements are not
necessary by nature of Tenant's use of the premises,
then:
1) If the costs are less than $10,000.00,
Landlord and Tenant shall each bear one-half the
cost of such improvements.
2) If the costs exceed $10,000.00, then
Landlord shall have the option of paying the cost
or terminating the Lease.
3) If the Landlord elects to terminate the
Lease, Tenant shall have the choice of paying the
cost of improvements or terminating the Lease.
4) In the event neither Landlord or Tenant
elects to pay the cost, then Lease shall
terminate when the appropriate government
authority forces Tenant to move out of the
facility.
5) In the event Tenant and Landlord mutually
agree to contest the installation of such
improvements, then the cost of contesting the
governmental regulation shall be split up to
$10,000.00.
7. provided such improvements are
8. not earlier than fifteen (15) nor later than five (5)
days before each semi-annual delinquency date.
9. Notwithstanding the foregoing, Tenant shall not be
liable for the payment of any federal, state, county or
municipal income or franchise taxes or an taxes or
license fees imposed on the collection of rent or
measured by the amount of rent, unless such taxes or
fees are a substitution in whole or in part for real
estate taxes.
10.Tenant shall bear the cost of tax increases due to
improvements within its space, and Tenant shall not bear
the cost of tax increases from improvements for other
tenants in the building. To the extent taxes increase
due to ownership changes, then Landlord shall bear the
cost of such tax increases to the end of the current
least term or option period, after which the increases
shall be Tenant's responsibility in the next lease
option period.
11.assumes the duty
12.Notwithstanding anything to the contrary contained in
subparagraph 1A and this paragraph 5, Landlord shall
repair or cause to be repaired all structural portions
of the building during the lease term, and during the
first two years of the lease term (a) the common sewage
line and the common water line and, (b) the roof of the
building, unless the need for any of the foregoing
repairs is caused by Tenant, in which event Tenant shall
be solely responsible for such repairs.
13., Landlord's consent not to be unreasonably withheld,
and such consent or dissent to be provided within five
(5) working days of delivery of plans and specifications
for such improvements.
14.Landlord shall elect in writing at time of approval
tenant improvements need to be removed by Tenant upon
expiration or termination of the lease.
15.labor and materials of
16.Landlord shall establish and enforce a uniform sign
criteria for all occupants of the building.
17.in accordance with Landlord's uniform sign criteria.
18.Landlord
19.Tenant
20.Such consent is not to be unreasonably withheld and
shall be given or denied fifteen (15) days after receipt
of all documentation relating to such consent. Tenant
shall have the right, without Landlord's consent, to
assign this lease a ("Permitted Assignment") to a
corporation with which it may merge, to any parent of
Tenant or any subsidiary of Tenant's parent, or to a
purchaser of substantially all of Tenant's assets or
stock, provided that such parent or purchaser has a net
worth at the effective date of the assignment that is
equal to or greater than the net worth of Park
Electrochemical Corporation on the date hereof, and
provided that Tenant notifies Landlord of the assignment
before the effective date thereof, and the assignee
assumes in writing Tenant's obligations hereunder."
21.evidence.
22.other than to a "Permitted Assignee" or subletting of
seventy percent (70%) or more of the premises
23.but Landlord shall remain liable for all obligations to
be performed by Landlord before the effective date of
the assignment.
24.Rental Insurance
25.Landlord's policy shall name Tenant and the holder of
any indebtedness secured by Landlord's interest in the
building, as their interests may appear, as additional
insureds, but all losses shall be adjusted by and
proceeds payable to Landlord. In addition to a
statement for the amount due, Landlord shall deliver to
Tenant for photocopies of the insurance policy or
certificate of insurance and premium notice covered by
the statement.
26.except that the rent shall be abated by the prorata
portion of the premises destroyed.
27.If the buildings situated upon the premises should be
damaged or destroyed by a casualty other than a peril
covered by the insurance to be provided by Landlord
under subparagraph 11A above, either party ("terminating
party") may elect to terminate this Lease by so
notifying the other party ("non-terminating party")
within sixty (60) days after the date of damage or
destruction, and this Lease shall be terminated on the
date that Tenant vacates the premises which shall be
within thirty (30) days after notice, unless the non-
terminating party notifies terminating party within
thirty (30) days after delivery of the notice of
termination that the non-terminating party elects to
rebuild, repair and replace the buildings. Should the
non-terminating party so elect, it shall proceed in
accordance with the requirements of subparagraph 11B.
28.Landlord shall not exercise any right to apply the
insurance proceeds to the indebtedness unless required
to do so by the Lender or agreed to by Tenant.
29.$3,000,000.00
30.at the option of either party
31."Substantial part" shall be deemed to be twenty five
percent (25%) or more of the premises.
32.trade fixtures, removal and location costs, and
goodwill,
33.ten (10)
34.thirty (30) days after written notice thereof to Tenant
of such longer period as may be reasonably required to
cure such default so long as Tenant proceeds at all
times with due diligence to complete the cure
35.Tenant agrees upon the request of Landlord to
subordinate this Lease and its rights hereunder to any
first or second mortgage or first or second deed of
trust (hereinafter for convenience called "loan") and to
execute at any time and from time to time such documents
as may be required to effectuate such subordination;
provided that (i) such documents do not require Tenant
to waive or modify any of its material rights under this
Lease and (ii) contain provisions that reasonably assure
Tenant that Tenant's possession will not be disturbed so
long as Tenant is not in default under this Lease,
including a provision that the owner, holder or
beneficiary of the loan and its successors and assigns,
including a purchaser at foreclosure sale or sale in
lieu of foreclosure, and Tenant's successors and
assigns, each will accept the attornment of Tenant and
recognize this Lease, and that Tenant's quiet enjoyment
and peaceful possession of the premises and rights and
privileges appertaining thereto shall not be disturbed.
36.and the written assumption of Landlord's obligations by
the new owner.
37.for declaratory relief,
38.If either party ('secondary party') becomes involved in
any action, threatened or actual, by or against anyone
not a party to this Lease but arising by reason or
related to any act or omission of the other party
('primary party') or its representatives, agents,
employees, licensees or invitees, the primary party
agrees to pay the secondary party's reasonable
attorney's fees and other costs incurred in connection
with the action and in preparation for the action.
39.either Landlord or Tenant ("Waiver")
40.Waiver
41.the other party
42.seventy two hours after
43.(d) Copies of notices to Tenant shall be sent
concurrently to Park Electrochemical, 475 Northern
Boulevard, Great Neck, New York 11021, Attention:
President.
44.within the continental United States.
45.At any time and from time to time within fifteen (15)
days after request by either party, the other party
shall execute and deliver to the requesting party, or to
such other recipient as the notice shall direct, a
statement certifying that this Lease is unmodified and
in full force and effect, or, if there have been
modifications, that it is in full force and effect as
modified in the manner specified in the statement, that
there are no defenses or offsets claimed by the party
making such statement other than those specified
therein, and any other such matters reasonable
requested. The statement shall also state the dates to
which the rent and any other charges have been paid in
advance. The statement shall also state the dates to
which the rent and any other charges have been paid in
advance. The statement shall be such that it can be
relied on by any person specified in the request.
46.and Landlord
47.good, clean and leasable condition
48.Provided that Tenant is not then in default hereunder,
Landlord shall refund to Tenant at the expiration or
earlier termination of this lease all sums received by
Landlord from Tenant which are allocable to the period
following the expiration or termination date.
49. Tenant Improvements
Landlord shall provide:
a)800 Amp 480/277 Volt Power with 110 Volt
transformer.
b)One (1) grade level door sufficiently wide to
accommodate two (2) trucks.
c)One (1) truck well sufficiently wide enough to
accommodate two (2) trucks.
d)$95,731 tenant improvement allowance to be used
for 4,000 square feet of build-to-suit offices.
Tenant improvement reimbursement shall be made
thirty (30) days after delivery of paid invoice for
approved tenant improvements. Tenant may take
possession of the premises rent free for purposes of
installing tenant improvements, subject to all
provisions of this lease except paragraphs 2 and 4.
e)Two (2") waterline
f) Four (4") sewerline
50.Rental Adjustments
a)Each option period shall be subject to an
adjustment based upon a Consumer Price Index with a
ceiling factor:
Base Adjustment Ceiling Base
Date Date Factor Rent(NNN)
10-1-83 10-1-88 1.40 $12,178.00
10-1-83 4-1-91 1.60 $12,178.00
10-1-93 4-1-96 1.20 10-1-93 Rent
10-1-93 10-1-98 1.40 10-1-93 Rent
10-1-93 4-1-03 1.60 10-1-93 Rent
The ceiling factor multiplied by the base rent shall be
the maximum adjusted rent for that period.
b) The adjusted rent shall be calculated as follows:
i) At the Adjustment date. the base rent shall
be multiplied by a fraction, the numerator of
which is the "Index" on the Adjustment Date and
the denominator of which is the "Basic Index".
The sum so derived shall be the monthly rental
payable during the following thirty (30) month
period unless the Lease terminates earlier.
ii) As used in the foregoing, "Index"
shall mean the average of the following two
indexes published by the Bureau of Labor
Statistics, United States Department of Labor
(1967:100): (i) the Consumer Price Index for
Urban Wage Earners and Clerical Workers for the
Los Angeles-Long Beach-Anaheim Metropolitan Area
(known as "CPI-W" and (ii) the Consumer Price
Index for all Urban Consumers for the Los
Angeles-Long Beach-Anaheim Metropolitan Area
(known as "CPI-U"). "Basic Index" shall mean
the Index most recently published prior to the
Base Date. If the Index as now constituted,
compiled, and published, shall be revised or
cease to be compiled and published during the
term hereof, then the Bureau of Labor Statistics
shall be requested to furnish a statement
converting the Basic Index to a figure that
would be comparable in another Index published
by the Bureau of Labor Statistics and such other
Index shall be used in computing the adjustment
in Rent provided herein. Should the parties not
be able to secure such appropriate conversion or
adjustment, they shall agree on some other Index
serving the same purpose to adjust the Rent as
provided herein.
51.Option to Extend
While this lease is in full force and effect provided
that Tenant is not in default of any of the terms,
covenants and conditions thereof, Tenant shall have the
right or option to extend the original term of this
Lease for three (3) further terms of sixty (60) months.
Such extension or renewal of the original term shall be
on the same terms, covenants and conditions as provided
for in the original term except that:
a) The initial monthly rental during the first
option period shall be based upon the Index as
described in Paragraph 50 of the Exhibit C with a
ceiling.
b) The initial monthly rental during the second
option period shall be based upon the fair market
rental value of equivalent properties, of equivalent
size, in equivalent areas.
c) The initial monthly rental during the third
option period shall be based upon the Index
described in paragraph 2 of the Addendum.
d) No further renewal options shall apply.
e) A rental escalation shall apply in the period
beginning month thirty one (31) of each option
period. The escalation shall be described in
paragraph 50 of Exhibit C.
Notice of Tenant's intention to exercise the option must
be given to Landlord in writing at least one hundred
eighty (180) days prior to the expiration of the
original or then existing term of this Lease. This
option is not assignable except to a permitted assignee
as defined in paragraph 10 A of the Lease.
In the event Landlord and Tenant do not agree in writing
on a fair market rate within fifteen (15) days after
exercise of the option for the second option period or
do not agree in writing on a single appraiser within
twenty five (25) days after such exercise, then:
a) Each shall appoint an Appraiser within thirty
five (35) days after the exercise of option.
b) In the event the two Appraisers are unable to
agree on a fair market rate within forty five (45)
days after exercise of the option, then the two
Appraisers, shall jointly appoint a third Appraiser
by the forty fifth (45th) day after the exercise of
option.
c) The average of the two closest appraisals shall
be deemed to be the fair market rental value which
shall be determined by the seventieth (70th) day
after the exercise of option.
d) Subject to paragraph (g), Landlord and Tenant
shall each pay the costs of its selected Appraiser
and one-half the cost of the third rental appraiser.
e) Tenant shall either:
(i) Accept the fair market determination
and execute and deliver a lease amendment within
ninety (90) days after the exercise of option
or,
(ii) Decline the determination of fair
market and cancel the option to lease, in which
case Tenant shall pay all fees of Appraisal,
including Landlord's and that of the neutral
Appraiser. Failure to deliver an executed lease
amendment shall mean Tenant has elected
alternative (ii) herein.
In no event, however, will the monthly rent payable
under this Lease as adjusted in the above described
method ever be less than the monthly rent payable in the
period prior to the adjustment.
52. Consent
Except when provided to the contrary in this Lease,
whenever one party's consent, approval or permission is
required or desired by the other party in connection
with this Lease, such consent, approval or permission
shall not be unreasonably withheld or delayed.
53.Parking
Landlord shall designate sixty one (61) parking spaces
for Tenant's exclusive use in that portion of the common
area that is marked in yellow on Exhibit A.
54.Adjacent Space
If Landlord decides to offer space contiguous to
Tenant's premises for lease during the lease term,
Landlord shall first offer such space to Tenant for
lease, and Tenant shall have the right to lease such
space on rental rates and terms that are mutually sat
isfactory within ten days next following Tenant's
receipt of such offer.
If terms that are mutually satisfactory cannot be agreed
upon within such ten day period, Landlord shall then be
free to offer for lease or lease such space to any other
party on terms acceptable to Landlord.