ATTACHMENT A
L E A S E
THIS LEASE is made as of the 21 day of November, 1994, by and between
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Co-Trustees of the ▇▇▇▇▇▇ Living
Trust, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (collectively,
"Landlord") and HAWKER PACIFIC, INC., a California corporation ("Tenant"),
who hereby mutually covenant and agree as follows:
▇. ▇▇▇▇▇, TERM, DEFINITIONS AND BASIC PROVISIONS
1.0 GRANT. Landlord, for and in consideration of the rents and other
sums herein reserved and of the covenants and agreements herein contained on
the part of the Tenant to be performed, hereby leases to Tenant, and Tenant
hereby lets from Landlord, the improved real estate commonly known as ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and legally described in Exhibit A
attached hereto, together with all real property improvements and
appurtenances belonging to or in any way pertaining to the same (collectively,
the "Leased Premises").
Landlord and Tenant hereby acknowledge that the lease dated March 26,
1987 (the "Existing Lease"), between Tenant and Landlord's
predecessor-in-interest, with respect to the Leased Premises (the "Prior
Lease"), shall terminate as of the Commencement Date, as defined hereinbelow.
1.1 LEASE TERM. The term of this Lease (the "Term") shall commence
upon the complete execution of this Lease (the "Commencement Date") and shall
terminate on July 31, 2004 (the "Expiration Date"), unless sooner terminated
in accordance with the terms of this Lease.
1.2 BASIC LEASE PROVISIONS.
(a) Purpose (See Article III): Any lawful purpose.
(b) Rent (See Paragraph 4.0.1)
Annual Monthly
Period Rent Rent
------ ---- ----
Commencement
Date to July 31, 1995 $197,368.44 $16,447.37
Periods subsequent to Rent shall be adjusted in accordance
July 31, 1995 during the with Paragraph 4.0.1 hereof.
Lease Term
(c) Payee (See Paragraph 4.0): ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
(d) Payee's Address (See Paragraph 4.0):
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(e) Security Deposit (See Article V): Twenty-Five Thousand Three
Hundred Sixty-Eight and 00/100 Dollars ($25,368.00).
(f) Form of Insurance (See Article VI): The insurance specified
in Paragraph 6.0 of this Lease.
(g) Tenant's Address (for notices) (See Paragraph 18.1):
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
(h) Landlord's Address (for notices) (See Paragraph 18.1):
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II. POSSESSION
Tenant has examined and knows the condition of the Leased Premises
(including, without limitation, the condition of all improvements), and
Tenant hereby accepts the Leased Premises in its "AS IS" condition, subject
to all applicable zoning, municipal, county and state laws, ordinances and
regulations governing and regulating the use of the Leased Premises, and
accepts this Lease subject thereto and to all matters disclosed hereby and by
any exhibits attached hereto. Tenant acknowledges that neither Landlord nor
Landlord's agent has made any representation or warranty as to the
suitability of the Leased Premises for the conduct of Tenant's business. If
Tenant vacates the Leased Premises, Tenant shall pay any increased insurance
caused thereby.
III. PURPOSE
The Leased Premises shall be used and occupied only for the purpose set
forth in Paragraph 1.2(a) hereof, except that no such use shall (a)
constitute a public or private nuisance or waste, or (b) be unlawful. Except
as expressly stated otherwise in this Lease or in the Agreement of which this
Lease is Attachment A, Tenant shall, at Tenant's expense, comply promptly
with all applicable statutes, ordinances, rules, regulations, orders and
requirements in effect during the term or any part of the term hereof
regulating the use by Tenant of the Leased Premises.
IV. RENT
4.0 RENT. Beginning with the Commencement Date, Tenant shall pay rent
as set forth in Paragraph 1.2(b) hereof. Annual rent shall be payable in
equal monthly installments, in advance, on the first day of each month during
the Lease Term. Rent shall be prorated for partial years and months within
the Term. Rent shall be paid to or upon the order of Payee at the Payee's
Address. Landlord shall have the right to change the Payee or the Payee's
Address by giving written notice thereof to Tenant.
4.0.1 RENT ADJUSTMENTS. Annual rent shall be adjusted in accordance
with this Paragraph 4.0.1.
(a) The annual rent shall be adjusted as of August 1, 1995 and as
of the first day of August of each year thereafter during the Term (each
such date being referred to hereinafter as an "Adjustment Date"),
according to the following computation:
The base for computing the adjustment is the index figure for
the month of August, 1994 (the "Base Index"), as shown in the Consumer
Price Index ("CPI") for all urban consumers for the Los Angeles area
(1982 - 1984 = 100) as published by the United States Department of
Labor's Bureau of Labor Statistics.
If the CPI for all urban consumers for the Los Angeles area
published for the month preceding the month of the Adjustment Date,
("Adjustment Index") has changed over the Base Index, the annual rent
for the following one-year
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period (until the next rent adjustment) shall be set by multiplying the
sum of One Hundred Ninety-Seven Thousand Three Hundred Sixty-Eight and
44/100 Dollars ($197,368.44) by a fraction, the numerator of which is
the Adjustment Index and the denominator of which is the Base Index. If
the amount of annual rental increase cannot be ascertained at the time
it is effective, it shall be paid within thirty (30) days after the time
such increase is determined and notice thereof mailed to Tenant at the
Leased Premises.
(b) Notwithstanding the foregoing, the annual/monthly rent for
each period from August 1, 1995 through the end of the Term of this
Lease shall be at least the Minimum Annual/Monthly rent shown below,
and shall be no greater than the Maximum Annual/Monthly rent shown below.
Minimum Maximum
Annual/ Annual/
Monthly Monthly
Period Rent Rent
------ ---- ----
August 1, 1995 - July 31, 1996 $203,289.49/ $209,210.54/
$ 16,940.79 $ 17,434.21
August 1, 1996 - July 31, 1997 $209,388.17/ $221,763.17/
$ 17,449.01 $ 18,480.26
August 1, 1997 - July 31, 1998 $215,669.81/ $235,068.96/
$ 17,972.48 $ 19,589.08
August 1, 1998 - July 31, 1999 $222,139.90/ $249,173.09/
$ 18,511.65 $ 20,764.42
August 1, 1999 - July 31, 2000 $228,804.09/ $264,123.47/
$ 19,067.00 $ 22,010.28
August 1, 2000 - July 31, 2001 $235,668.21/ $279,970.87/
$ 19,639.01 $ 23,330.90
August 1, 2001 - July 31, 2002 $242,738.25/ $296,769.12/
$ 20,228.18 $ 24,730.76
August 1, 2002 - July 31, 2003 $250,020.39/ $314,575.26/
$ 20,835.03 $ 26,214.60
August 1, 2003 - July 31, 2004 $257,521.00/ $333,449.77/
$ 21,460.08 $ 27,787.48
4.1 TAXES. For the period following the Commencement Date, Tenant shall
pay all real estate taxes applicable to the Leased Premises during the Lease
Term ("Taxes"). "Taxes" shall mean all federal, state and local governmental
taxes, assessments and charges (including transit or transit district taxes
or assessments) of every kind or nature, whether general, special, ordinary
or extraordinary, which Landlord shall pay or become obligated to pay
because of or in connection with the ownership, leasing, management, control
or operation of the Leased Premises, or of the personal property, fixtures,
machinery, equipment, systems and apparatus located therein or used in
connection therewith (including any rental or similar taxes levied in lieu of
or in addition to general real and/or personal property taxes). All such
payments shall be made prior to the delinquency date of such payment. Upon
request of Landlord, Tenant shall promptly furnish Landlord with satisfactory
evidence that such taxes have been paid. If any such taxes paid by Tenant
shall cover any period of time prior to or after the expiration of the term
hereof, Tenant's share of such taxes shall be equitably prorated to cover
only the period of time within the tax fiscal year during which this Lease
shall be in effect, and Landlord shall reimburse Tenant to the extent
required. If Tenant shall fail to pay any such taxes, Landlord shall have the
right to pay
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the same, in which case Tenant shall repay such amount to Landlord with
Tenant's next rent installment together with interest at the rate of seven
and one-half percent (7.5%) per annum.
4.1.1 JOINT ASSESSMENT. If the Leased Premises are not separately
assessed, Tenant's liability shall be an equitable proportion of the real
property taxes for all of the land and improvements included within the tax
parcel assessed, such proportion to be determined by Landlord from the
respective valuations assigned in the assessor's work sheets or such other
information as may be reasonably available. Landlord's reasonable
determination thereof, in good faith, shall be conclusive.
4.1.2 PERSONAL PROPERTY TAXES. Tenant shall pay prior to
delinquency all taxes assessed against and levied upon trade fixtures,
furnishings, equipment and all other personal property of Tenant contained in
the Leased Premises or elsewhere. When possible, Tenant shall cause said trade
fixtures, furnishings, equipment and all other personal property to be assessed
and billed separately from the real property of Landlord.
4.2 INTEREST ON LATE PAYMENTS. Tenant hereby acknowledges that late
payment by Tenant to Landlord of rent and other sums due hereunder will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. Such costs include, but are
not limited to, processing and accounting charges, and late charges which may
be imposed on Landlord by the terms of any mortgage or trust deed covering
the Leased Premises. Accordingly, each and every payment of charges due
hereunder, which shall not be paid within ten (10) days after such amount
shall be due, shall bear interest at the rate of seven and one-half percent
(7.5%) per annum or the maximum rate of interest permitted by law, whichever
is less, from the date when same is payable under the terms of this Lease
until the same shall be paid. The parties hereby agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Tenant. Acceptance of such late charge by Landlord
shall in no event constitute a waiver of Tenant's default with respect to
such overdue amount, nor prevent Landlord from exercising any of the other
rights and remedies granted hereunder.
V. SECURITY DEPOSIT
As security for the performance of its obligations under this Lease,
Landlord has received a security deposit (the "Security Deposit") in the
amount specified in Subsection 1.2(e). The Security Deposit may be applied by
Landlord to cure any default of Tenant hereunder following notice to Tenant
and the expiration of applicable cure periods. If Tenant has not cured said
default within the applicable cure period, Landlord may use, apply or retain
all or any portion of the Security Deposit for the payment of any rent or
other charge in default or for the payment of any other sum to which Landlord
may become obligated by reason of Tenant's default. Unless Tenant disputes
Landlord's application of all or any portion of the Security Deposit, Tenant
shall within ten (10) days after written demand therefor deposit cash with
Landlord in an amount sufficient to restore said deposit to the full amount
hereinabove stated and Tenant's failure to do so shall be a material breach
of this Lease. Within thirty (30) days after the Expiration Date and after
Tenant has vacated the Leased Premises, Landlord shall return the balance of
the Security Deposit, if any, to Tenant or Tenant's assignee.
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VI. INSURANCE
6.0 KINDS AND AMOUNTS. During the term of this Lease, Tenant shall
procure and maintain policies of insurance, at its sole cost and expense,
insuring:
(a) Landlord and Tenant from all claims, demands or actions for bodily
injury or property damage in an amount of not less than Five Hundred
Thousand Dollars ($500,000) combined single limit made by, or on behalf
of, any person or persons, firm or corporation arising from, related
to or connected with the operation of the Leased Premises by Tenant.
(b) Landlord's interest in all improvements located on the Leased
Premises against property damage in an amount equal to the full
replacement value.
(c) Loss of rent from business interruption in an amount equal to the
rent reserved for a period of six (6) months under this Lease.
6.1 FORM OF INSURANCE. The aforesaid insurance shall be issued by
companies rated A- or better in BEST'S INSURANCE GUIDE at the time such
insurance is procured, shall be qualified to do business in California, and
shall contain standard loss payee clauses satisfactory to Landlord and
Landlord's mortgagee. The aforesaid insurance shall not be subject to
cancellation or non-renewal by either the insurance carrier or the insured
except after at least thirty (30) days prior written notice to Landlord and
any mortgagee of Landlord. Certificates of insurance shall be deposited with
Landlord, naming the same as additional insured with respect to Tenant's
liability coverage.
6.2 MUTUAL WAIVER OF SUBROGATION RIGHTS. Whenever (a) any loss, cost,
damage or expense resulting from fire, explosion or any other casualty or
occurrence is incurred by either of the parties to this Lease, or anyone
claiming by, through, or under it in connection with the Leased Premises, and
(b) such party is then covered in whole or in part by insurance with respect
to such loss, cost, damage or expense or is required under this Lease to be
so insured, then the party so insured (or so required) hereby releases the
other party from any liability said other party may have on account of such
loss, cost, damage or expense to the extent of any amount recovered by reason
of such insurance (or which could have been recovered had such insurance been
carried as so required) and waives any right of subrogation which might
otherwise exist in or accrue to any person on account thereof, provided that
such release of liability and waiver of the right of subrogation shall not be
operative in any case where the effect thereof is to invalidate such
insurance coverage. Notwithstanding anything to the contrary contained in
this Paragraph, nothing herein is intended to waive or affect, and Tenant
specifically reserves, all of its rights against Landlord to recover any and
all of the amount of any deductible or self-insured retention that Tenant has
incurred as a result of any loss, cost, damage or expense.
VII. DAMAGE OR DESTRUCTION
7.0 PARTIAL DAMAGE -- INSURED. For purposes of this Article VII, damage
to the Leased Premises shall be considered "Partial Damage" only if less than
twenty-five percent (25%) of the floor area of the improvements on the Leased
Premises is damaged by a casualty. Subject to the provisions of Paragraph
7.3, if the Leased Premises suffer Partial Damage and such Partial Damage was
caused by a casualty covered under an insurance policy required to be
maintained pursuant to Article VI, Landlord shall at Landlord's expense
repair such Partial
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Damage as soon as reasonably possible and this Lease shall continue in full
force and effect. Notwithstanding the above, if the Tenant is the insuring
party, and if the insurance proceeds received by Landlord are not sufficient
to effect such repair, Landlord shall give notice to Tenant of the amount
required in addition to the insurance proceeds to effect such repair. Tenant
may, at Tenant's option, contribute the required amount, but upon failure to
do so within thirty (30) days following such notice, Landlord's sole remedy
shall be, at Landlord's option and with no liability to Tenant, to cancel and
terminate this lease as of the date of the casualty. If Tenant shall
contribute such amount to Landlord within said thirty (30) day period,
Landlord shall make such repairs as soon as reasonably possible and this
Lease shall continue in full force and effect. Tenant shall in no event have
any right to reimbursement for any such amount so contributed.
7.1 PARTIAL DAMAGE -- UNINSURED. Subject to the provisions of
Paragraph 7.3, if at any time during the term hereof the Leased Premises
suffer Partial Damage, except by a willful act of Tenant, and such Partial
Damage was caused by a casualty not covered under an insurance policy
required to be maintained pursuant to Article VI, Landlord may at Landlord's
option either (a) repair such Partial Damage as soon as reasonably possible
at Landlord's expense, in which event this Lease shall continue in full force
and effect, or (b) give written notice to Tenant within thirty (30) days
after the date of the occurrence of such Partial Damage of Landlord's
intention to cancel and terminate this Lease as of the date of the occurrence
of such Partial Damage. In the event Landlord elects to give such notice of
Landlord's intention to cancel and terminate this Lease, Tenant shall have
the right within ten (10) days after the receipt of such notice to give
written notice to Landlord of Tenant's intention to repair such Partial
Damage at Tenant's expense, without reimbursement from Landlord, in which
event this Lease shall continue in full force and effect, and Tenant shall
proceed to make such repairs as soon as reasonably possible. If Tenant does
not give such notice within such ten (10) day period this Lease shall be
cancelled and terminated as of the date of the occurrence of such Partial
Damage.
7.2 TOTAL DESTRUCTION. Notwithstanding anything else in this Article
VII, damage to the Leased Premises shall be considered "Total Destruction" of
the Leased Premises if (a) twenty-five percent (25%) or more of the floor
area of the improvements on the Leased Premises is damaged by a casualty, or
(b) as a result of a casualty, Tenant is unable to conduct its business in
the normal course of business. If at any time during the term hereof the
Leased Premises suffer Total Destruction from any cause whether or not
covered by the insurance required to be maintained pursuant to Article VI
(including any total destruction required by any authorized public authority)
this Lease shall automatically terminate as of the date of such Total
Destruction.
7.3 DAMAGE NEAR END OF TERM. If the Leased Premises suffer Partial
Damage during the last twelve (12) months of the term of this Lease, either
party may at its option cancel and terminate this Lease as of the date of
occurrence of such Partial Damage by giving written notice to the other party
of its election to do so within thirty (30) days after the date of occurrence
of such Partial Damage.
7.4 ABATEMENT OF RENT; TENANT'S REMEDIES.
(a) If the Leased Premises are partially destroyed or damaged and
Landlord or Tenant repairs or restores them pursuant to the provisions of
this Article, the rent payable under Article 4 and all other payments
Tenant is obligated to pay under this Lease for the period during which
such damage, repair, or restoration continues shall be abated in
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proportion to the degree to which Tenant's use of the Leased
Premises is impaired; provided, however, that in no case shall such
abatement be less than if the abatement was calculated pro rata
based on the amount of square footage damaged or destroyed.
Except for abatement of rent, if any, Tenant shall have no claim
against Landlord for any damage suffered by reason of any such
damage, destruction, repair, or restoration, unless such damage or
destruction was caused by a willful act of Landlord, or such repair
or restoration was performed in a negligent or willfully dangerous
or unstable manner.
(b) If Landlord shall be obligated to repair or restore the Leased
Premises under the provisions of this Paragraph 7.0 and shall not
commence such repair or restoration within ninety (90) days after
such obligation shall accrue, Tenant may at Tenant's option cancel
and terminate this Lease by giving Landlord written notice of
Tenant's election to do so at any time prior to the commencement of
such repair or restoration. In such event this Lease shall
terminate as of the date of the casualty.
7.5 PROMPT REPAIR. If, under Paragraphs 7.0 or 7.1, Landlord is
obligated or chooses to repair Partial Damage to the Leased Premises, Tenant
may terminate this Lease without penalties if Landlord (a) fails to complete
such repair work within one hundred and eighty (180) days from the date of
the occurrence of such Partial Damage, or (b) cannot reasonably be expected
to complete such repair work within one hundred and eighty (180) days from
the date of the occurrence of such Partial Damage. If Tenant chooses to
terminate this Lease pursuant to this Paragraph 7.5, this Lease shall be
terminated as of the date of the occurrence of such Partial Damage.
7.6 TERMINATION -- ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to this Article VII, Tenant shall be entitled to a pro rata refund
of any rent or other monetary amounts paid in advance. In addition, Landlord
shall return to Tenant Tenant's Security Deposit in the manner described in
Article V.
VIII. CONDEMNATION
8.0 LANDLORD'S DUTY TO NOTIFY TENANT. Within ten (10) days after
receiving notice that the Leased Premises or a portion thereof may be taken
under the power of eminent domain or sold under the threat of the exercise
of said power (all of which are herein called "condemnation"), Landlord shall
notify Tenant in writing of the threatened condemnation.
8.1 TERMINATION. If the Leased Premises or any portion thereof are to
be taken by condemnation, this Lease shall terminate as to the part so
taken as of the date the condemning authority takes title or possession,
whichever first occurs; provided, however, Tenant may, at Tenant's option,
terminate this Lease if (a) more than ten percent (10%) of the floor area of
the improvements on the Leased Premises is taken or threatened to be taken by
condemnation, (b) more than twenty-five percent (25%) of the land area of the
Leased Premises which is not occupied by any improvements is taken or
threatened to be taken by condemnation, or (c) any such condemnation or
threatened condemnation materially restricts ingress or egress from the
Leased Premises. If Tenant chooses to terminate this Lease pursuant to this
Article VIII, Tenant must so notify Landlord before thirty (30) days have
lapsed from the date Tenant receives written notice of such condemnation or
threatened condemnation from Landlord (or in the absence of such notice,
before thirty (30) days have lapsed from the date the condemning authority
shall have taken possession of the Leased Premises). Under the
aforementioned circumstances the Lease shall terminate as of the date title
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vests in the condemning authority. If Tenant does not terminate this Lease
in accordance with the foregoing, this Lease shall remain in full force and
effect as to the portion of the Leased Premises remaining, except that the
rent shall ▇▇▇▇▇ pro rata based upon the square footage of the total floor
area of the Leased Premises taken by condemnation. In any case of a complete
or partial taking or conveyance of the Leased Premises, the Tenant shall be
entitled to a pro rata refund of any rent and other monetary amounts paid in
advance. The Tenant shall receive such portion of any condemnation award to
which it is entitled under statutory or common law. Any award for the taking
of all or any part of the Leased Premises under the power of eminent domain
or any payment made under threat of the exercise of such power shall be the
property of Landlord, whether such award shall be made as compensation for
diminution in value of this leasehold or for the taking of the fee, or as
severance damages; provided, however, that Tenant shall be entitled to any
portion of the award for loss of or damage to Tenant's trade fixtures and
removable personal property, and Tenant may bring apportionment proceedings to
identify the portion of the award to which Tenant is entitled. In the event
that this Lease is not terminated by reason of such condemnation, Landlord
shall, to the extent of severance damages received by Landlord in connection
with such condemnation, repair any damages to the Leased Premises caused by
such condemnation except to the extent that Tenant has been reimbursed
therefor by the condemning authority.
IX. MAINTENANCE, ALTERATIONS, AND SURRENDER
9.0 MAINTENANCE. Tenant shall during the term of this Lease keep in
good order, condition and repair, the Leased Premises and every part thereof,
structural or non-structural, and all adjacent sidewalks, landscaping,
driveways, parking lots, fences, and signs located in the areas which are
adjacent to and included with the Leased Premises. Landlord shall incur no
expense nor have any obligation of any kind whatsoever in connection with
maintenance of the Leased Premises, and Tenant expressly waives the
benefits of any statute now or hereafter in effect which would otherwise
afford Tenant the right to make repairs at Landlord's expense or to terminate
this Lease because of Landlord's failure to keep the Leased Premises in good
order, condition, and repair.
9.1 ALTERATIONS.
(a) Without Landlord's prior written consent, which shall not
be unreasonably withheld, Tenant shall not make any alterations,
improvements, additions, utility installations in, on, or about the
Leased Premises, except for non-structural alterations not
exceeding Twenty-Five Thousand and 00/100 Dollars ($25,000.00) in
cost; Tenant is expressly permitted to effect nonstructural
alterations to the Leased Premises if the cost of such alterations
does not exceed Twenty-Five Thousand and 00/100 Dollars
($25,000.00). As used in this Paragraph 9.1, the term "utility
installations" shall include bus ducting, power panels, fluorescent
fixtures, space heaters, conduits, and wiring. As a condition to
giving such consent, Landlord may require that Tenant agree to
remove any such alterations, improvements, additions, or utility
installations at the expiration of the term, and to restore the
Leased Premises to their prior condition.
(b) Tenant shall give Landlord not less that ten (10) days'
notice prior to the commencement of any work in the Leased
Premises, and Landlord shall have the right to post notices of
non-responsibility in or on the Leased Premises as provided by law.
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(c) Unless Landlord requires their removal as set forth in
Paragraph 9.1(a), all alterations, improvements, additions, and
utility installations (whether or not such utility installations
constitute fixtures of Tenant), which may be made on the Leased
Premises, shall become the property of Landlord and remain upon and
be surrendered with the Leased Premises at the expiration of the
term. Notwithstanding the provisions of this Paragraph 9.1(c),
Tenant's machinery, trade fixtures, and equipment shall remain the
property of Tenant and may be removed by Tenant subject to the
provisions of Paragraph 9.2. All machinery, trade fixtures, and
equipment which Tenant does not remove from the Leased Premises
upon the termination of the Term shall become the property of
Landlord.
9.2 SURRENDER. Upon the termination of the Term, Tenant shall
surrender the Leased Premises to Landlord in the same condition as when
received on the Commencement Date (subject to Paragraphs 9.1(a) and (c)),
broom clean, ordinary wear and tear excepted. Tenant shall repair any damage
to the Leased Premises occasioned by the removal of Tenant's trade fixtures,
furnishings, and equipment pursuant to Paragraph 9.1(c)), which repair shall
include the patching and filling of holes and repair of structural damage.
9.3 LANDLORD'S RIGHTS. If Tenant fails to perform Tenant's obligations
under this Article 9, Landlord may at its option (but shall not be required
to) enter upon the Leased Premises, after ten (10) days' prior written notice
to Tenant, and put the same in good order, condition and repair, and the cost
thereof together with interest thereon at the rate of seven and one-half
percent (7.5%) per annum shall become due and payable by Tenant.
X. ASSIGNMENT AND SUBLETTING
Tenant shall not voluntarily or by operation of law assign, transfer,
mortgage, sublet, or otherwise transfer or encumber all or any part of
Tenant's interest in this Lease or in the Leased Premises, without Landlord's
prior written consent, which Landlord shall not unreasonably withhold.
Regardless of Landlord's consent, no subletting or assignment shall release
Tenant of Tenant's obligation or alter the primary liability of Tenant to pay
the rent and to perform all other obligations to be performed by Tenant
hereunder. The acceptance of rent by Landlord from any other person shall
not be deemed to be a waiver by Landlord of any provision hereof. Consent to
one assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting. Any attempted assignment, transfer, mortgage,
encumbrance or subletting without such consent shall be void, and shall
constitute a breach of this Lease. Notwithstanding anything contained herein
to the contrary, and so long as Tenant is not otherwise in default under this
Lease, Tenant may assign this Lease without Landlord's consent to (a)
Tenant's corporate parent, the corporate subsidiaries of Tenant or its
corporate parent, or any corporation in which Tenant or said parent or
subsidiaries shall own a controlling interest, or (b) any purchaser of
substantially all of Tenant's assets located at the Leased Premises or
Tenant's stock, provided that the assignee executes an agreement assuming
Tenant's obligations hereunder. In the event that the net worth of the
assignee following the assignment incidental to the sale of Tenant's assets
or stock is less that ten (10) times the reasonably estimated remaining
monetary obligations of Tenant under the Lease, the entity receiving the
proceeds from such sale shall be liable for Tenant's remaining obligations
under the Lease.
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XI. LIENS AND ENCUMBRANCES
11.0 ENCUMBERING TITLE. Tenant shall not do any act which shall in any
way encumber Landlord's interest in and to the Leased Premises, nor shall the
interest or estate of Landlord in the Leased Premises in any way become
subject to any claim by way of lien or encumbrance, whether by operation of
law or by virtue of any express or implied contract by Tenant, subject to
Tenant's right to contest any such lien or encumbrance as described in
Paragraph 11.1 hereinbelow. Any claim to, or lien upon, the Leased Premises
arising from any act or omission of Tenant other than a claim by Landlord,
shall accrue only against the leasehold estate of Tenant and shall be subject
and subordinate to the paramount title and rights of Landlord in and to the
Leased Premises.
11.1 LIENS AND RIGHT TO CONTEST. If a person should attempt to place a
mechanics', laborers', or materialmen's lien upon any part of the Leased
Premises, Tenant shall so notify Landlord in writing within ten (10) days of
discovering the attempt to place such a lien. Tenant shall not permit the
Leased Premises to become subject to any mechanics', laborers' or
materialmen's lien on account of labor or material furnished to Tenant or
claimed to have been furnished to Tenant in connection with work of any
character performed or claimed to have been performed for the Leased Premises
by, or at the direction or sufferance of, Tenant; provided, however, that
Tenant shall have the right to contest, in good faith and with reasonable
diligence, the validity of any such lien or claimed lien if Tenant shall give
to Landlord, upon Landlord's request, a bond in an amount equal to one and
one-half (1-1/2) times the estimated cost of such improvements, to insure
Landlord against any liability for mechanics' and materialmen's liens;
provided further, however, that on final determination of the lien or claim
for lien, Tenant shall immediately pay any judgment rendered, with all
proper costs and charges, and shall have the lien released and any judgment
satisfied.
XII. UTILITIES
Tenant shall purchase all utility services, including without
limitation, fuel, water, sewerage, and electricity, from the utility or
municipality providing such service, and shall pay for such services,
together with any taxes thereon, when such payments are due.
XIII. INDEMNITY AND WAIVER
13.0 TENANT'S INDEMNITY. Tenant and its successors and assignees will
protect, defend, indemnify, and save harmless Landlord, and its heirs,
successors, and assignees from and against all liabilities, obligations,
claims, damages, penalties, causes of action, costs, and expenses (including,
without limitation, reasonable attorneys' fees and expenses) imposed upon or
incurred by or asserted against Landlord by reason of (a) any failure on the
part of Tenant to perform or comply with any of the terms of this Lease; or
(b) the performance of any labor or services or the furnishing of any
materials or other property in respect of the Leased Premises or any part
thereof performed by or on behalf of Tenant during the Lease Term.
13.1 EXEMPTION OF LANDLORD FROM LIABILITY. Except as set forth in
Paragraph 7.4(a), Tenant hereby agrees that Landlord shall not be liable for
injury to Tenant's business or any loss of income therefrom or for the damage
to the goods, wares, merchandise, or other property of Tenant, Tenant's
employees, invitees, customers, or any other person in or about the Leased
Premises, nor shall Landlord be liable for injury to the person of Tenant,
Tenant's employees, agents, or contractors, whether
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such damage or injury is caused by or results from fire, steam, electricity,
gas, water, or rain, or from the breakage, leakage, obstruction, or other
defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning,
or lighting fixtures, or from any other cause, whether the said damage or
injury results from conditions arising upon the Leased Premises or upon other
portions of the building of which the Leased Premises are a part, or from
other sources or places, and regardless of whether the cause of such damage
or injury or the means of repairing the same is inaccessible to Tenant.
Landlord shall not be liable for any damages arising from any act or neglect
of any other tenant, if any, of the building in which the Leased Premises are
located. Nothing in this Paragraph 13.1 is intended to grant, and Tenant
expressly does not grant, Landlord the right to seek indemnification from
Tenant for any costs incurred by Landlord as a result of claims or demands or
liability arising out of the matters discussed in this Paragraph 13.1.
13.2 LANDLORD'S INDEMNITY. Landlord and its heirs, successors, and
assignees will protect, defend, indemnify, and save harmless Tenant, and its
agents, employees, officers, and directors from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs, and
expenses (including, without limitation, reasonable attorneys' fees and
expenses) imposed upon or incurred by or asserted against Tenant by reason of
any failure on the part of Landlord to perform or comply with any of the
terms of this Lease.
XIV. RIGHTS RESERVED TO LANDLORD
Without limiting any other rights reserved or available to Landlord
under this Lease, at law or in equity, Landlord reserves the following rights
to be exercised at Landlord's election:
(a) Upon five (5) days notice to Tenant, except in case of emergency, to
enter and/or inspect the Leased Premises and to make repairs, additions,
or alterations to the Leased Premises; and
(b) Upon five (5) days notice to Tenant, to show the Leased Premises to
persons having a legitimate interest in viewing the same.
Landlord may enter upon the Leased Premises for any and all of said purposes
and may exercise any and all of the foregoing rights hereby reserved, so long
as such exercise does not result in any interference in the conduct of
Tenant's business.
XV. QUIET ENJOYMENT
So long as Tenant is not in default under the covenants and agreements
of this Lease, Tenant's quiet and peaceable enjoyment of the Leased Premises
shall not be disturbed or interfered with by Landlord or by any person
claiming by, through, or under Landlord.
XVI. SUBORDINATION OR SUPERIORITY
This Lease and Tenant's rights are and shall be subject to any
mortgage(s) or trust deed(s) executed by Landlord against the Leased Premises
and to any amendments, modifications, or renewals thereof. Tenant shall
execute and deliver within fifteen (15) days of the request of Landlord
or its mortgagee such acknowledgments or documents as may be requested from
time to time in connection with the financing of the Leased Premises
including, without limitation, subordination and attornment instruments, and
estoppel certificates. Notwithstanding the
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foregoing, Tenant shall have no obligation to subordinate its interest in
this Lease to the holder of any mortgage(s) or trust deed(s) executed by
Landlord unless Tenant has received from such mortgagee a so-called
"Nondisturbance Agreement" in form and content satisfactory to Tenant.
XVII. REMEDIES
17.0 DEFAULTS. Tenant agrees that any one or more of the following
events shall be considered events of default as said term is used herein:
(a) Tenant shall be adjudged an involuntary bankrupt, or a decree or
order approving, as properly filed, a petition or answer filed against
Tenant asking reorganization of Tenant under the Federal bankruptcy laws
as now or hereafter amended, or under the laws of any state, shall be
entered, and any such decree or judgement or order shall not have been
vacated or set aside within sixty (60) days from the date of the entry
or granting thereof; or
(b) Tenant shall file or admit the jurisdiction of the court and the
material allegations contained in any petition in bankruptcy or any
petition pursuant or purporting to be pursuant to the Federal bankruptcy
laws as now or hereafter amended, or Tenant shall institute any
proceedings for any relief of Tenant under any bankruptcy or insolvency
laws or any laws relating to the relief of debtors, readjustment or
indebtedness, reorganization, arrangements, composition or extension; or
(c) Tenant shall make any assignment for the benefit of creditors or
shall apply for consent to the appointment of a receiver for tenant or
any of the property of Tenant; or
(d) The Leased Premises are levied upon by any revenue officer or
similar officer as the result of any act or omission of Tenant; or
(e) A decree or order appointing a receiver of all or substantially all
of the property of Tenant shall be made and such decree or order shall
not have been vacated or set aside within sixty (60) days from the date
of entry or granting thereof; or
(f) Tenant shall default in any payment of rent or in any other payment
required to be made by Tenant hereunder and such default shall continue
for ten (10) days after delivery of notice thereof in writing to Tenant;
or
(g) Tenant shall fail to contest the validity of any lien or claimed
lien and give security to Landlord to assure payment thereof, or, having
commenced to contest the same and having given such security, shall fail
to prosecute such contest with diligence, or shall fail to have the same
released and satisfy any judgment rendered thereon, and such default
continues for ten (10) days after notice thereof in writing to Tenant; or
(h) Tenant shall vacate and abandon the Leased Premises and cease
payment of rent. It shall not be an instance of default if Tenant
vacates and abandons the Leased Premises but continues to pay rent; or
(i) Tenant shall default in keeping, observing, or performing any of the
other covenants or agreements herein contained to be kept, observed, and
performed by Tenant, and such default shall continue for thirty (30)
days after notice thereof in writing to Tenant; provided, however, that
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if the nature of Tenant's default is such that more than thirty (30)
days are reasonably required for its cure, then Tenant shall not be in
default if Tenant commences such cure within said thirty (30) day period
and thereafter diligently prosecutes such cure to completion.
Upon the occurrence of any one or more of such events of default, Landlord
may, at its election, terminate this Lease or terminate Tenant's right to
possession only, without terminating the Lease. Upon termination of the
Lease, or upon any termination of the Tenant's right to possession without
termination of the Lease, the Tenant shall surrender possession and vacate
the Leased Premises immediately, and deliver possession thereof to the
Landlord, and hereby grants to the Landlord the full and free right, without
demand or notice of any kind to Tenant (except as hereinabove expressly
provided for or otherwise required by applicable law), to enter into and upon
the Leased Premises, in accordance with the requirements of applicable law,
and to repossess the Leased Premises as the Landlord's former estate and to
expel or remove the Tenant and any others who may be occupying the Leased
Premises, without relinquishing the Landlord's rights to the rent or any
other right given to the Landlord hereunder or by operation of law. Upon
termination of the Lease, Landlord shall be entitled to recover as damages
all rent and other sums due and payable by Tenant on the date of termination,
plus (1) an amount equal to the present value of the rent and other sums
provided herein to be paid by Tenant for the residue of the stated term
hereof, less the fair rental value of the Leased Premises for the residue of
the stated term (taking into account the time and expenses necessary to
obtain a replacement tenant or tenants, including expenses hereinafter
described relating to recovery of the Leased Premises, preparation for
reletting and for reletting itself), and (2) the cost of performing any other
covenants to be performed by the Tenant. If the Landlord elects to terminate
the Tenant's right to possession only without terminating the Lease, the
Landlord may enter into the Leased Premises, remove the Tenant's signs, if
any, and other evidences of tenancy, and take and hold possession thereof as
hereinabove provided, without such entry and possession terminating the Lease
or releasing the Tenant, in whole or in part, from the Tenant's obligations
to pay the rent hereunder for the full term or from any other of its
obligations under this Lease. In the event Landlord elects to terminate the
Tenant's right to possession only, Landlord shall exercise reasonable efforts
to relet all or any part of the Leased Premises for such rent and upon such
terms as shall be satisfactory to Landlord (including the right to relet the
Leased Premises as part of a larger area and the right to change the
character or use made of the Leased Premises). For the purpose of such
reletting, Landlord may decorate or make any repairs, changes, alterations or
additions in or to the Leased Premises that may be necessary or convenient.
All expenses of decorating, changing, altering, and adding to the Leased
Premises shall be borne solely by Landlord. If Landlord does not relet the
Leased Premises, Tenant shall pay to Landlord on demand damages equal to the
amount of the rent and other sums provided herein to be paid by Tenant for
the remainder of the Lease Term as the same shall become due and payable. If
the Leased Premises are relet and a sufficient sum shall not be realized from
such reletting after paying all of the expenses of such reletting and the
collection of the rent accruing therefrom (including, but not by way of
limitation, reasonable attorneys' fees and brokers' commissions), to satisfy
the rent and other charges herein provided to be paid for the remainder of
the Lease Term, Tenant shall pay to Landlord on demand any deficiency as the
same shall become due and payable. Tenant agrees that Landlord may file suit
to recover any sums falling due under the terms of this Paragraph 17.0 from
time to time. Tenant shall pay all costs and expenses, including attorneys'
fees and costs, incurred by Landlord in recovering such sums due hereunder.
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17.1 REMEDIES CUMULATIVE. No remedy herein or otherwise conferred upon
or reserved to Landlord shall be considered to exclude or suspend any other
remedy but the same shall be cumulative and shall be in addition to every
other remedy given hereunder, or now or hereafter existing at law or in
equity or by statute, and every power and remedy given by this Lease to
Landlord may be exercised from time to time and so often as occasion may
arise or as may be deemed expedient.
17.2 NO WAIVER. No delay or omission of either party to exercise any
right or power arising from any default shall impair any such right or power
or be construed to be a waiver of any such default or any acquiescence
therein. No waiver of any breach of any of the covenants of this Lease shall
be construed, taken, or held to be a waiver of any other breach, or as a
waiver, acquiescence in or consent to any further or succeeding breach of the
same covenant. The acceptance by Landlord of any payment of rent or other
sums due hereunder after the termination by Landlord of this Lease or of
Tenant's right to possession hereunder shall not, in the absence of agreement
in writing to the contrary by Landlord, be deemed to restore this Lease or
Tenant's rights hereunder, as the case may be, but shall be construed as a
payment on account, and not in satisfaction of damages due from Tenant to
Landlord.
17.3 COMPLIANCE WITH LAWS. Notwithstanding anything contained herein
to the contrary, Landlord shall pursue its remedies hereunder in accordance
with the laws and judicial decisions of the State of California.
XVIII. MISCELLANEOUS
18.0 AMENDMENTS MUST BE IN WRITING. None of the covenants, terms or
conditions of this Lease to be kept and performed by either party, shall in
any manner be altered, waived, modified, changed, or abandoned except by a
written instrument, duly signed and delivered by the other party.
18.1 NOTICES. All notices to or demands upon Landlord or Tenant
desired or required to be given under any of the provisions hereof shall be
writing. Any notices or demands from Landlord to Tenant shall be deemed to
have been duly and sufficiently given if delivered personally or mailed by
United States certified mail in an envelope properly stamped and addressed
to Tenant at Tenant's Address described in Paragraph 1.2(g) hereof or at such
other address as Tenant may heretofore or hereafter have designated by
written notice to Landlord, and any notices or demands from Tenant to
Landlord shall be deemed to have been duly and sufficiently given if
delivered personally or mailed by United States certified mail in an envelope
properly stamped and addressed to Landlord at Landlord's Address described in
Paragraph 1.2(h) hereof, or at such other address or to such other agent as
Landlord may heretofore have designated by written notice to Tenant. The
effective date of any notice shall be the date of personal delivery or, in
the case of mailing, three (3) business days after delivery of the same to
the United States Postal Service.
18.2 MEMORANDUM OF LEASE. Tenant may record this Lease or a "short
form" memorandum of this Lease without Landlord's prior consent. Either
party shall, within five (5) business days after request by the other,
execute, acknowledge and deliver to the other a "short form" memorandum of
this Lease for recording.
18.3 RELATIONSHIP OF PARTIES. Nothing contained herein shall be
deemed or construed by the parties hereto, or by any third party, as creating
the relationship of principal and agent or of partnership, or of joint
venture, by the parties hereto, it being understood and agreed that no
provision contained in this
14
Lease nor any acts of the parties hereto shall be deemed to create any
relationship other than the relationship of Landlord and Tenant.
18.4 CAPTIONS. The captions of this Lease are for convenience only
and are not to be construed as part of this Lease and shall not be construed
as defining or limiting in any way the scope or intent of the provisions
hereof.
18.5 SEVERABILITY. If any term or provision of this Lease shall to
any extent be held invalid or unenforceable, the remaining terms and
provisions of this Lease shall not be affected thereby, but each term and
provision of this Lease shall be valid and shall be enforced to the fullest
extent permitted by law.
18.6 LAW APPLICABLE. This Lease shall be construed and enforced in
accordance with the laws of the State of California.
18.7 COVENANTS BINDING ON SUCCESSORS. All of the covenants,
agreements, conditions, and undertakings contained in this Lease shall extend
and inure to and be binding upon the permitted heirs, executors,
administrators, successors, and assignees of the respective parties hereto.
18.8 BROKERAGE. Each of Landlord and Tenant represents and warrants
for itself that it has not had any dealings with any broker or agent in
connection with the transactions contemplated hereby. Each of Landlord and
Tenant covenants to pay, hold harmless, and indemnify the other from and
against any and all costs, expenses, or liability for any compensation,
commissions, and charges claimed by any broker or agent, with respect to the
transactions contemplated hereby or the negotiation thereof and arising by
virtue of the acts of the indemnifying party.
18.9 ATTORNEY'S FEES. If either party herein brings an action to
enforce the terms hereof or declare rights hereunder, the prevailing party in
any such action, on trial or appeal, shall be entitled to his reasonable
attorney's fees to be paid by the losing party as fixed by the court.
18.10 TENANT'S RIGHT TO PERFORM LANDLORD'S DUTIES. If Landlord fails
to perform any of its duties under this Lease within ten (10) days following
its time for performance of the same, Tenant shall have the right (but not
the obligation) to perform such duties on behalf of Landlord, at the expense
of Landlord and without further notice to Landlord, and all expenses incurred
by Tenant in performing such duties shall be paid by Landlord to Tenant,
together with interest thereon at the rate of seven and one-half percent
(7.5%) per annum; provided, however, Tenant is hereby granted the right to
set off against rent and other sums owing to Landlord hereunder all sums to
be paid to Tenant under this Paragraph 18.10.
18.11 TRUSTEES INDIVIDUALLY LIABLE. If the ▇▇▇▇▇▇ Living Trust should
dissolve or for any reason cease to exist, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ shall, jointly and separately, succeed to all of the ▇▇▇▇▇▇ Living
Trust's rights and responsibilities under this Lease as if this Lease were
entered into between Hawker Pacific and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
in their individual capacities.
18.12 EXECUTION IN COUNTERPARTS. This Lease may be signed in two or
more counterparts, each of which shall be treated as an original but which,
when taken together, shall constitute one and the same instrument.
18.13 REPRESENTATIONS OF SIGNATORIES. Landlord and Tenant have
executed this Lease on the dates opposite their names. The party executing
this Lease on behalf of Tenant represents and
15
warrants that the party is authorized to bind Tenant to this Lease. ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ represent and warrant that they are executing this
Lease on behalf of themselves in their individual capacities and on behalf of
the ▇▇▇▇▇▇ Living Trust as the Co-Trustees of the ▇▇▇▇▇▇ Living Trust.
XIX. OPTION TO RENEW
Tenant is hereby granted the option (the "Extension Option") to extend
the term of this lease for one (1) period of five (5) years (the "Extended
Term"), commencing on the date immediately following the Expiration Date.
Tenant shall provide Landlord with at least ninety (90) days prior written
notice of Tenant's election to exercise the Extension Option. The Extended
Term shall be governed by the same terms and conditions as contained in this
Lease. Rent for the Extended Term shall be the same as if the rent under the
Lease had continued uninterrupted through the Extended Term with all
necessary CPI adjustments pursuant to Paragraph 4.0.1.
(SIGNATURE PAGE FOLLOWS IMMEDIATELY)
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of
the day and year first above written.
LANDLORD:
Dated: 11-21-94 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------- -----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Individually, and
as Co-Trustee of the ▇▇▇▇▇▇ Living
Trust
Dated: 11-21-94 /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------- -----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Individually, and
as Co-Trustee of the ▇▇▇▇▇▇ Living
Trust
Dated: 11/18/94 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------- -----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Dated: 11/18/94 /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------- -----------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TENANT:
HAWKER PACIFIC, INC.
Dated: 14 Nov 1994 By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------ --------------------------------
Its: PRESIDENT
-------------------------------
17
EXHIBIT A
LEGAL DESCRIPTION
That portion of the east 100 feet of the west half
of lot 62 of Lankershim Ranch Land and Water
Company's subdivision of the east 12,000 acres of
the south half of the Ranch X Mission of San
▇▇▇▇▇▇▇▇, in the city of Los Angeles, county of
Los Angeles, State of California as per map
recorded in Book 31, Pages 39 seq. of
miscellaneous records in the office of the City
Recorder of said county line northerly of a line,
extending south 89 degrees 4 feet 25 inches east
from a point in the centerline of Tujunga Avenue,
50 feet wide distant north zero degrees 00 feet
30 inches west 406.44 feet from the intersection
of said centerline of the westerly prolongation
of the southerly line of said lot 62. Except
therefrom the southerly 30 feet thereof.