EXHIBIT 10.2
FIRST AMENDMENT TO STANDARD INDUSTRIAL/COMMERCIAL
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SINGLE-TENANT LEASE -- NET
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This First Amendment to Standard Industrial/Commercial
Single-Tenant Lease -- Net (this "Amendment") is made as of this 11/th/ day of
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June, 2001, by and between YORK MOORPARK INDUSTRIAL, L.L.C., an Arizona limited
liability company ("Landlord") and VARIFLEX, INC., a Delaware corporation
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("Tenant").
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RECITALS
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A. Landlord and Tenant are parties to that certain Standard
Industrial/Commercial Single Tenant Lease -- Net dated as of December 1, 1999
(which, together with those certain various Addenda attached thereto which
incorporate Paragraphs 50 through 60 into such lease, is hereinafter referred to
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as the "Original Lease"), respecting the lease of certain premises (the
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"Existing Premises"), as more particularly described in the Original Lease,
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which Existing Premises constitute that certain real property containing
approximately four and thirty-six one hundredths (4.36) acres, including all
improvements thereon (including a free-standing building containing
approximately one hundred four thousand (104,000) square feet), commonly known
as 5152 North Commerce Avenue, Moorpark, California 93021. The Original Lease
was clarified pursuant to that certain letter agreement dated February 22, 2000
(the "Letter Agreement"), whereby Landlord and Tenant clarified and agreed that
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the Base Rent under the Original Lease for the period between January 1, 1999
and December 31, 1999 was Thirty-Four Thousand Seven Hundred Thirty-One and
84/100 ($34,731.84) per month, subject to increase as elsewhere provided in the
Original Lease. The Original Lease as modified by the Letter Agreement is
hereinafter referred to as the "Existing Lease".
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B. All defined terms used herein but not herein defined shall
have the meanings ascribed to such terms in the Existing Lease.
C. The Existing Premises are part of a project (the "Project"),
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which Project includes only the Existing Premises and that certain real
property, including all improvements thereon (including a concrete tilt-up
building containing approximately thirty-one thousand two hundred thirty-three
(31,233) square feet), commonly known as 5156 North Commerce Avenue, Moorpark,
California 93021 (the "Additional Premises"). The Project, including the
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Existing Premises and Additional Premises, are depicted on the site plan
attached hereto as Exhibit A and incorporated herein by this reference (the
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"Site Plan").
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D. The Additional Premises are currently subject to that certain
Standard Industrial/Commercial Single-Tenant Lease -- Net dated May 21, 1991
between Landlord (as successor-in-interest to S & B Mortgage Investment Company)
and Rolls-Royce Motor Cars, Inc., a Delaware corporation ("Rolls-Royce"), which
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lease, together with the Addenda attached thereto and any and all amendments,
modifications and supplements thereto, is hereinafter referred to as the
"Rolls-Royce Lease". Rolls-Royce failed to timely exercise the first (1/st/)
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option to extend the term of the Rolls-Royce Lease in the manner required
thereby. Accordingly, the Rolls Royce Lease is currently scheduled to expire on
June 30, 2001 (the "Scheduled Expiration Date of the Rolls-Royce Lease").
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E. Landlord and Tenant now desire to enter into this Amendment to
memorialize the exercise by Tenant of its option, pursuant to Paragraph 54 of
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the Existing Lease, to lease the Additional Premises. Accordingly, Landlord and
Tenant are entering into this Amendment to amend the Existing Lease to provide,
among other things, for Tenant's occupancy and possession of the Additional
Premises pursuant to the terms set forth below, and to include the Additional
Premises within the definition of "Premises" covered by the Existing Lease. The
Existing Lease, as amended by this Amendment, is hereinafter referred to as the
"Lease".
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AGREEMENT
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Landlord and Tenant hereby agree to
amend and/or supplement the Existing Lease as of the Effective Date as follows:
1. Effective Date. The effective date of this Amendment shall be the
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date upon which Landlord and Tenant have each executed and delivered an executed
counterpart of this Amendment to the other party (the "Effective Date").
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2. Additional Premises.
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a) Notwithstanding anything contained in the Existing Lease to
the contrary, as of July 1, 2001 (the "Additional Premises Commencement Date"),
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Landlord shall be deemed to have delivered to Tenant and Tenant shall be deemed
to have accepted from Landlord, possession of the Additional Premises in its
then "as-is, where-is" condition; provided, however, Landlord hereby agrees that
all repairs designated upon Exhibit B will be completed either by Rolls Royce or
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Landlord, at no expense to Tenant, on or before the Additional Premises
Commencement Date; it being understood and agreed that any failure to timely
complete any or all of such repairs and/or to complete same in a good,
workmanlike manner shall, subject to applicable notice and cure periods, and as
Tenant's sole remedy (it being understood and agreed that any such failure shall
not result in a delay or an extension of the Additional Premises Commencement
Date), constitute a default by Landlord under the Lease (an "Exhibit B
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Default"), subject to cure within thirty (30) days following Landlord's receipt
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of written notice from Tenant (provided, however, in the event any such cure
reasonably requires more than thirty (30) days to complete, Landlord shall not
be deemed to be in default so long as Landlord commences such cure within such
thirty (30) day period and, thereafter, diligently prosecutes same to
completion). In the event Landlord performs any of the repairs or work set forth
on Exhibit B, Landlord shall, in connection therewith, perform such work in a
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commercially reasonable manner and use commercially reasonable efforts to
minimize interference with any permitted business then being conducted in the
Additional Premises by Tenant. In addition, in connection with any such work
performed by Landlord, Landlord shall maintain, or cause its contractors and
subcontractors to maintain, commercial general liability insurance with a
minimum limit of One Million Dollars ($1,000,000.00) per occurrence and a
minimum annual aggregate limit of One Million Dollars ($1,000,000.00), and
workers compensation insurance in accordance with applicable law. Such liability
insurance shall name Tenant as an additional insured, and all such insurance
shall be primary as to any insurance maintained by Tenant. Landlord shall
indemnify, defend and hold Tenant harmless from any and all claims, losses and
damages (exclusive of consequential damages and/or lost profits) to the extent
arising from Landlord's performance of such work. In the event Landlord fails to
cure an Exhibit B Default within the subject thirty (30) day period, or, if
having commenced such cure within such thirty (30) day period, does not
diligently pursue same to completion, Tenant, at its option, shall have the
right to cure such Exhibit B Default in accordance with the provisions of
Paragraph 13.6(b) of the Existing Lease; provided, however, and notwithstanding
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anything to the contrary contained in the Existing Lease, Tenant shall not be
required to provide any Lender notice of, or an opportunity to cure, any Exhibit
B Default prior to Tenant exercising its rights under Paragraph 13.6(b) with
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respect to same; and provided further, however, and notwithstanding anything to
the contrary contained in Paragraph 13.6(b) of the Existing Lease, Tenant shall
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be entitled to offset all reasonable out-of-pocket costs actually incurred by
Tenant in curing an Exhibit B Default against the Rent payable under the Lease,
which offset shall not be subject to the one (1) month Base Rent limitation set
forth in Paragraph 13.6(b) of the Existing Lease.
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b) Notwithstanding anything contained in the Existing Lease to
the contrary, with respect to the Additional Premises only, the references to
"Start Date" in Paragraph 2.3 of the Existing Lease shall be deemed deleted and
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replaced with the words "Additional Premises Commencement Date", and the words
"prior to execution of this Lease", appearing in the fifth (5/th/) sentence of
Paragraph 2.3 of the Existing Lease, shall be deemed deleted and replaced with
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the words "prior to the Additional Premises Commencement Date". Subject to the
foregoing provisions of this Section 2 setting forth Tenant's cure and
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offset rights in connection with an Exhibit B Default, in no event shall
Landlord be obligated to provide, nor shall Tenant be entitled to, any
concession or other monetary amount or allowance on account of the Additional
Premises. From and after the Additional Premises Commencement Date, all
references in the Existing Lease to the "Premises" shall be deemed to refer to
the entirety of the Project, which Project, as set forth above, constitutes the
aggregate of the Existing Premises and the Additional Premises. In addition,
from and after the Additional Premises Commencement Date, all references in the
Existing Lease to the "Building" shall be deemed to refer to all buildings
within the Project. Tenant shall, on or before the Additional Premises
Commencement Date, provide to Landlord evidence reasonably satisfactory to
Landlord of insurance applicable to or covering the Additional Premises in the
amounts and forms required to be maintained under the Lease with respect to the
Premises. At all times, Tenant shall use, operate, maintain, repair, replace and
otherwise occupy the Additional Premises in accordance with the terms and
provisions of the Lease. Notwithstanding anything contained in the Existing
Lease or this Amendment to the contrary, Tenant shall have no obligation to pay
Base Rent or other additional rent or other charges attributable to the
Additional Premises until the Additional Premises Commencement Date.
3. Condition to Amendment and Additional Premises Commencement Date.
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Notwithstanding anything contained herein to the contrary, Tenant acknowledges
that the terms and provisions of this Amendment are expressly contingent upon
the expiration or termination of the Rolls-Royce Lease and the vacating of the
Additional Premises by Rolls-Royce (except as may otherwise be separately agreed
between Tenant and Rolls-Royce). To the extent a dispute arises as to whether or
not the Rolls-Royce Lease has properly expired or terminated prior to the
Additional Premises Commencement Date, or in the event Rolls Royce fails to
vacate and surrender possession of the Additional Premises prior to the
Additional Premises Commencement Date (except as may otherwise be separately
agreed between Tenant and Rolls-Royce), the Additional Premises Commencement
Date shall be extended on a day for day basis until (a) it is determined by
Landlord (in Landlord's reasonable discretion) that the Rolls-Royce Lease has
expired or terminated, or (b) Rolls Royce, in fact, vacates and surrenders
possession of the Additional Premises in broom clean condition (except as may
otherwise be separately agreed between Tenant and Rolls-Royce), whichever is
later. Notwithstanding anything to the contrary contained herein, in the event
Rolls Royce fails to vacate and surrender possession of the Additional Premises
on or before July 1, 2001 (except to the extent otherwise separately agreed
between Tenant and Rolls-Royce), Landlord shall use commercially reasonable,
good faith efforts to cause Rolls Royce to be so removed from possession of the
Additional Premises, which such efforts shall be satisfied by the prompt
initiation and diligent pursuit of an unlawful detainer action. In all events,
if the Additional Premises Commencement Date fails to occur on or before the
date which is six (6) months following the Scheduled Expiration Date of the
Rolls-Royce Lease, Landlord may, at its sole election, at any time after such
date, terminate this Amendment upon written notice to Tenant, in which event the
parties shall have no further rights or obligations under this Amendment, and,
with respect to the Existing Premises, the parties' rights shall continue under
the Existing Lease as if this Amendment never existed.
4. Base Rent. Notwithstanding anything contained in the Existing Lease
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to the contrary, commencing upon the Additional Premises Commencement Date, the
"Base Rent" then payable under the Lease shall be increased by an amount equal
to Eighteen Thousand Seven Hundred Thirty-Nine and 80/100 Dollars ($18,739.80)
per month (based upon Sixty Cents ($0.60) per square foot of floor area within
the building located within the Additional Premises per month). Tenant shall
continue to be obligated to pay Base Rent (as calculated pursuant to this
Amendment) at the times and in the manner provided under the Existing Lease;
provided that Base Rent shall not be calculated pursuant to the terms of this
Amendment unless and until the Additional Premises Commencement Date has
occurred in accordance with the terms of this Amendment.
5. Base Rent Adjustments. Notwithstanding anything to the contrary
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contained herein, Base Rent (as increased pursuant to this Amendment) shall
continue to be increased at the times and in the manner set forth in the
Existing Lease (including Paragraphs 54(C)(iii) and 56 thereof), except that the
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"New Base Rent" referenced in the first (1/st/) and second (2/nd/) lines of
Paragraph 56(A)(I)(b), and against which the fraction described in such
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Paragraph is multiplied, shall be Sixty-One Thousand Three Hundred Seventy-Nine
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and 80/100 Dollars ($61,379.80). Notwithstanding anything to the contrary
contained herein, in the event the Additional Premises Commencement Date fails
to occur on or before July 1, 2001, then, pursuant to Paragraph 54(C)(iii) of
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the Existing Lease, and notwithstanding anything to the contrary contained in
Paragraph 56(A)(I)(a) of the Existing Lease, there shall be no adjustment to the
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Additional Premises component of Base Rent as of the July 1, 2002 adjustment
date set forth in Paragraph 56(A)(I)(a), although all other portions or
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components of the Base Rent (other than that which is specifically attributable
to the Additional Premises) shall continue to be subject to such adjustment; it
being understood and agreed that, pursuant to Paragraph 54(C)(iii) of the
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Existing Lease, the Additional Premises component of Base Rent shall not be
subject to adjustment pursuant to Paragraph 56(A) prior to the date which is one
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(1) year following the Additional Premises Commencement Date. Notwithstanding
anything to the contrary contained herein, Paragraph 56(A)(II) of the Existing
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Lease is hereby deleted.
6. Security Deposit. On or before the Additional Premises
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Commencement Date, Tenant shall deposit with Landlord the sum of Eighteen
Thousand Seven Hundred Thirty-Nine and 80/100 Dollars ($18,739.80), which sum
shall be added to, maintained as and considered a part of the Security Deposit
currently being held by Landlord under the Existing Lease.
7. Prepaid Rent. On or before the Additional Premises Commencement
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Date, Tenant shall pay to Landlord the sum of Twenty-Eight Thousand Ninety-Nine
and 80/100 Dollars ($28,099.80), which sum shall be added to the amount
currently being held by Landlord under Paragraph 1.6 of the Existing Lease and
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applied (together with the sum currently being held by Landlord under Paragraph
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1.6 of the Existing Lease) as a partial payment against the Base Rent for the
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final month of the Term of the Lease (as the Term may be extended).
8. Additional Maintenance, Repair, Replacement and Insurance
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Obligations. Notwithstanding anything to the contrary contained in the Existing
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Lease, from and after the Additional Premises Commencement Date, Tenant shall,
at Tenant's sole cost and expense, operate, maintain, repair and replace all
improvements within the Project, including all parking and drive areas, in the
manner otherwise required of Tenant with respect to the Existing Premises under
the Existing Lease. Landlord shall have no responsibility whatsoever (except as
may be provided in Paragraphs 9 and 14 of the Existing Lease) for the operation,
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maintenance, repair or replacement of any portion of the Project.
9. Extension of Lease Term. Notwithstanding anything to the contrary,
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any extension by Tenant of the Lease Term pursuant to Paragraph 58 of the
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Existing Lease shall be exercised with respect to the entirety of the Premises
(meaning the Existing Premises and Additional Premises, together).
10. Subordination Non-disturbance and Attornment Agreement. Landlord,
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Tenant and Des Moines Commercial Mortgage Portfolio, LLC, a Delaware limited
liability company (the "Lender") are parties to that Subordination,
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Non-disturbance and Attornment Agreement dated as of December 1, 1999 (the
"SNDA"). Pursuant to Paragraph 54(C)(vi) of the Existing Lease, the SNDA shall
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apply to the Lease and the Premises (as expanded pursuant to this Amendment);
provided, however, and notwithstanding anything to the contrary contained
herein, if requested by Lender in connection with or resulting from this
Amendment, Tenant shall enter into a modification or new subordination,
non-disturbance and attornment agreement, which such modification or agreement
shall confer substantially the same rights and obligations on Landlord, Tenant
and Lender as set forth in the SNDA, and require substantially the same
covenants, representations and agreements of the parties as set forth in the
SNDA.
11. Permitted Use. Notwithstanding anything to the contrary contained
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in the Existing Lease, in addition to, and not in exclusion of, the uses set
forth in Paragraph 1.8 of the Existing Lease, Tenant shall have the right,
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subject to all applicable laws, governmental requirements and limitations and
matters of record, to use the Premises for incidental display/showroom purposes
for items and products produced at and/or distributed from the Premises.
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12. Brokers. Tenant and Landlord each warrant that it has had no
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dealing with any broker or agent in connection with this Amendment. Tenant and
Landlord each will indemnify, defend and hold the other harmless from and
against any and all costs, expenses or liability for commissions or other
compensation or charges claimed by any broker or agent based on dealings with
the indemnifying party with respect to this Amendment.
13. Conflict. In the event of any conflict between the Existing Lease
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and this Amendment, this Amendment shall prevail. Except to the extent herein
modified, the Existing Lease shall continue in full force and effect.
14. Counterparts. This Amendment may be executed in any number of
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counterparts, each of which shall be deemed an original, but all of which, taken
together, shall constitute one and the same instrument.
15. Binding on Successors. The provisions of this Amendment shall
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bind and inure to the benefit of the heirs, representatives, successors and
assigns of the parties hereto.
16. Attorneys' Fees. In the event that at any time after the date
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hereof either the Landlord or Tenant shall institute any action or proceeding
against the other relating to this Amendment, then and in that event, the party
not prevailing in such action or proceeding shall reimburse the prevailing party
for the reasonable expenses or attorneys' fees and all costs and disbursements
incurred therein by the prevailing party.
17. Governing Law. This Amendment is made under and shall be construed
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pursuant to the laws of the State of California.
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
the date and year first above written.
"LANDLORD"
YORK MOORPARK INDUSTRIAL, L.L.C., an Arizona
limited partnership
By: ARIZONA LAND ASSOCIATES, a California limited
partnership, its Managing Member
By: YORK ARIZONA CORP., a California
corporation, its General Partner
By: /s/ James York
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James York, its President
"TENANT"
VARIFLEX, INC., a Delaware corporation
By: /s/ Roger M. Wasserman
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Name: Roger M. Wasserman
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Its: Chief Financial Officer
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By: /s/ Steven L. Muellner
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Name: Steven L. Muellner
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Its: President
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EXHIBIT A
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SITE PLAN
(To Be Attached)
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EXHIBIT B
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REPAIRS TO BE COMPLETED
(To Be Attached)
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