1. Parties. This Sublease, dated, for reference purposes only,
September 1 ,1999, is made by and between AirCold Supply, a division of
Westburne Supply. Inc. ("Sublessor") and Upright Inc. ("Sublessee").
2. Premises. Sublessor hereby
subleases to Sublessee and Sublessee hereby subleases from Sublessor for the
term, at the rental, and upon all of the conditions set forth herein, that
certain real property, including all improvements therein, and commonly known by
the Street address of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ located in the County of
Fresno State of California and generally described as (describe briefly the
nature of the property) that 9,216 square foot industrial building and
associated parking as shown on attached Exhibit. A Parcel E. Tota1ing 35.823 "-
square feet.
("Premises").
3. Term.
3.1 Term. The term of this Sublease shall be for Twenty-six (26)
months. Commencing on thirty (30) days from lease execution estimated to he
October 1. 1999 and ending on November 30, 2001 unless sooner terminated
pursuant to any provision hereof.
3.2 Delay in Commencement. Sublessor agrees to use its best commercially
reasonable efforts to deliver possession of the Premises by the
commencement date. If, despite said efforts,. Sublessor is unable to deliver
possession as agreed, Sublessor shall not be subject to any liability therefor,
nor shall such failure affect the validity of this Sublease. Sublessee shall
not, however, be obligated to pay Rent or perform its other obligations until it
receives possession of the Premises. If possession is not delivered within sixty
days after the commencement date, Sublessee may, at its option, by notice in
writing within ten days after the end of such sixty day period, cancel this
Sublease, in which event the Parties shall be discharged from all obligations
hereunder. If such written notice is not received by Sublessor within said
ten-day period, Sublessee's right to cancel shall terminate. Except as otherwise
provided, if possession is not tendered to Sublessee when required and Sublessee
does not terminate this Sublease, as aforesaid, any period of rent abatement
that Sublessee would otherwise have enjoyed shall run from the date of delivery
of possession and continue for a period equal to what Sublessee would otherwise
have enjoyed under the terms hereof, but minus any days of delay caused by the
acts or omissions of Sublessee. If possession is not delivered within 120 days
after the commencement date, this Sublease shall automatically terminate unless
the Parties agree, In writing to the contrary.
4. Rent
4.1 Base Rent. Sublessee shall pay to Sublessor as Base Rent for
the Premises equal monthly payments of $3,750. 00 in advance, on the 1st
day of each month of the term hereof. Sublessee shall pay Sublessor upon the
execution hereof $3,750.OO as Base rent for first month's rent
Base rent for any period during the term hereof which is for less than one
month shall be a pro rata portion of the monthly installment.
4.2 Rent Defined. All monetary obligations of Sublessee to
Sublessor under the terms of this Sublease (except for the Security Deposit)
are deemed to be rent ("Rent"). Rent shall be payable in lawful money of the
United States to Sublessor at the address stated herein or to such other
persons or at such other places as Sublessor may designate in writing.
5. Security Deposit. Sublessee shall deposit with Sublessor upon
execution hereof $3,750 .00 as security for Sublessee's faithful performance
of Sublessee's obligations hereunder. If Sublessee fails to pay Rent or
other charges due hereunder, or otherwise defaults with respect to any
provision of this Sublease, Sublessor may use, apply or retain all or any
portion of said deposit for the payment of any Rent or other charge in
default or for the payment of any other sum to which Sublessor may become
obligated by reason of Sublessee's default, or to compensate Sublessor for
any loss or damage which Sublessor may suffer thereby. If Sublessor so uses
or applies all or any portion of said deposit, Sublessee shall within ten
days after written demand therefore forward to Sublessor an amount
sufficient to restore said Deposit to the full amount provided for herein
and Sublessee's failure to do so shall be a material breach of this
Sublease. Sublessor shall not be required to keep said Deposit separate from
its general accounts. If Sublessee performs all of Sublessee's obligations
hereunder, said Deposit, or so much thereof as has not therefore been
applied by Sublessor, shall be returned, without payment of interest to
Sublessee (or at Sublessor's option, to the last assignee, if any, of
Sublessee's Interest hereunder) at the expiration of the term hereof, and
after Sublessee has vacated the Premises. No trust relationship is created
herein between Sublessor and Sublessee with respect to said Security Deposit.
6. Use.
6.1 Agreed Use. The Premises shall be used and occupied only for
general distribution and storage of machinery parts and
accessories____________________________ and for no other purpose.
6.2 Compliance. Sublessor warrants that the improvements on the
Premises comply with all applicable covenants or restrictions of record and
applicable building codes, regulations and ordinances ("Applicable
Requirements") in effect on the commencement date. Said warranty does not
apply to the use to which Sublessee will put the Premises or to any
alterations or utility installations made or to be made by Sublessee. NOTE:
Sublessee is responsible for determining whether or not the zoning is
appropriate for its intended use, and acknowledges that past uses of the
Premises may no longer be allowed. If the Premises do not comply with said
warranty, Sublessor shall, except as otherwise provided, promptly after
receipt of written notice from Sublessee setting forth with specificity the
nature and extent of such non-compliance, rectify the same at Sublessor's
expense. If Sublessee does not give Sublessor written notice of a
non-compliance with this warranty within six months following the
commencement date, correction of that non-compliance shall be the obligation
of Sublessee at its sole cost and expense. If the Applicable Requirements
are hereafter changed so as to require during the term of this Sublease the
construction of an addition to or an alteration of the Building, the
remediation of any Hazardous Substance, or the reinforcement or other
physical modification of the Building ("Capital Expenditure"), Sublessor and
Sublessee shall allocate the cost of such work as follows:
(a) If such Capital Expenditures are required as a result of the
specific and unique use of the Premises by Sublessee compared with uses by
tenants in general, Sublessee shall be fully responsible for the cost
thereof provided, however, that if such Capital Expenditure is required
during the last two years of this Sublease and the cost thereof exceeds six
months' Base Rent, Sublessee may instead terminate this Sublease unless
Sublessor notifies Sublessee in writing, within ten days after receipt of
Sublessees's terminate notice that Sublessor has elected to pay the
difference between the actual cost thereof and the amount equal to six
months' Base Rent. The Parties elect termination; Sublessee shall
immediately cease the use of the Premises which requires such Capital
Expenditure a deliver to Sublessor written notice specifying a termination
date at least ninety days thereafter. Such termination date shall, however,
in no event be earlier then the last day that Sublessee could legally
utilize the Premises without commencing such Capital Expenditure.
(b) If such Capital Expenditure is not the result of the specific
and unique use of the Premises by Sublessee (such governmentally mandated
seismic modifications, then Sublessor shall pay for said Capital Expenditure
and the cost thereof shall prorated between the Sublessor and Sublessee and
Sublessee shall only be obligated to pay, each month during the remainder of
the term of this Sublease, on the date on which Rent is due, an amount equal
to the product of multiplying the cost of such Capital Expenditure b
fraction, the numerator of which is one, and the denominator of which is the
number of months of the useful life of such Capital Expenditure as such
useful life is specified pursuant to Federal income tax regulations or
guidelines for depreciation thereof (including interest on the unamortized
balance as is then commerically reasonable in the judgment of Sublessor's
accountant), with Sublessee reserving the right prepay its obligation at any
time. Provided, however, that if such Capital Expenditure is required during
the last two years of this Sublease or if Sublessor reasonably determines
that it is not economically feasible to pay its share thereof, Sublessor
shall have the option terminate this Sublease upon ninety days prior written
notice to Sublessee unless Sublessee notifies Sublessor, in writing, within
ten days after receipt of Sublessor's termination notice that Sublessee will
pay for such Capital Expenditure. If Sublessor does not elect to terminate
and fails to tender its share of any such Capital Expenditure, Sublessee may
advance such funds and deduct same, with interest, from Rent until
Sublessor's share of such costs have been fully paid. If Sublessee is unable
to finance Sublessor's share, or if the balance of the Rent due and payable
for the remainder of this Sublease is not sufficient to fully reimburse
Sublessee on an offset basis, Sublessee shall hay the right to terminate
this Sublease upon ten days written notice to Sublessor.
(c) Notwithstanding the above, the provisions concerning Capital
Expenditures are intended to apply only to non-voluntary unexpected, and new
Applicable Requirements. If the Capital Expenditures are instead triggered
by Sublessee as a result of an actual c proposed change in use, change in
intensity of use, or modification to the Premises then, and in that event,
Sublessee shall be full responsible for the cost thereof, and Sublessee
shall not have any right to terminate this Sublease.
6.3 Acceptance of Premises and Lessee. Sublessee acknowledges that:
(a) it has been advised by Brokers to satisfy itself with respect
to the condition of the Premises (including but not limited to the
electrical, HVAC and fire sprinkler systems, security, environmental
aspects, and compliance with Applicable Requirements), and their suitability
for Sublessee's intended use,
(b) Sublessee has made such investigation as it deems necessary
with reference to such matters and assumes all responsibility' therefor as
the same relate to Its occupancy of the Premises, and
(c) neither Sublessor, Sublessor's agents, nor any Broker has made
any oral or written representations or warranties with respect to said
matters other than as set forth In this Sublease.
In addition, Sublessor acknowledges that:
(a) Broker has made no representations, promises or warranties
concerning Sublessee's ability to honor the Sublease or suitability to
occupy the Premises, and
(b) It is Sublessor's sole responsibility to investigate the
financial capability and/or suitability of all proposed tenants.
7. Master Lease
7.1 Sublessor is the lessee of the Premises by virtue of a lease,
hereinafter the "Master Lease", a copy of which is attached hereto marked
Exhibit 1, wherein P & R Properties with current owner now ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
is the lessor, hereinafter the "Master Lessor"
7.2 This Sublease is and shall be at all times subject and
subordinate to the Master Lease.
7.3 The terms, conditions and respective obligations of Sublessor and
Sublessee to each other under this Sublease shall be the terms and conditions of
the Master Lease except for those provisions of the Master Lease which are
directly contradicted by this Sublease in which event the terms of this Sublease
document shall control over the Master Lease. Therefore, for the purposes of
this Sublease, wherever in the Master Lease the word "Lessor" is used it shall
be deemed to mean the Sublessor herein and wherever in the Master Lease the word
Lessee" is used it shall be deemed to mean the Sublessee herein.
7.4 during the term of this Sublease and for all periods
subsequent for obligations which have arisen prior to the termination of
this Sublease, Sublessee does hereby expressly assume and agree to perform
and comply with, for the benefit of Sublessor and Master Lessor, each and
every obligation of Sublessor under the Master Lease except for the
following paragraphs which are excluded therefrom: 0
7.5 The obligations that Sublessee has assumed under paragraph 7.4
hereof are hereinafter referred to as the "Sublessee's Assumed Obligations".
The obligations that Sublessee has not assumed under paragraph 7.4 hereof
are hereinafter referred to as the "Sublessor's remaining Obligations".
7.6 Sublessee shall hold Sublessor free and harmless from all
liability, judgments, costs, damages, claims or demands, including
reasonable attorneys fees, arising out of Sublessee's failure to comply with
or perform Sublessee's Assumed Obligations.
7.7 Sublessor agrees to maintain the Master Lease during the
entire term of this Sublease, subject, however, to any earlier termination
of the Master Lease without the fault of the Sublessor, and to comply with
or perform Sublessor's Remaining Obligations and to hold Sublessee free and
harmless from all liability, judgments, costs, damages, claims or demands
arising out of Sublessor's failure to comply with or perform Sublessor's
Remaining Obligations.
7.8 Sublessor represents to Sublessee that the Master Lease is in
full force and effect and that no default exists on the part of any Party to
the Master Lease.
8. Assignment of Sublease and Default.
8.1 Sublessor hereby assigns and transfers to Master Lessor the
Sublessor's interest in this Sublease, subject however to the provisions of
Paragraph 8.2 hereof.
8.2 Master Lessor, by executing this document, agrees that until
Default shall occur in the performance of Sublessor's Obligations under the
Master Lease, that Sublessor may receive, collect and enjoy the Rent
accruing under this Sublease. However, if Sublessor shall Default in the
performance of its obligations to Master Lessor then Master Lessor may, at
its option, receive and collect, directly from Sublessee, all Rent owing and
to be owed under this Sublease. Master Lessor shall not, by reason of this
assignment of the Sublease nor by reason of the collection of the Rent from
the Sublessee, be deemed liable to Sublessee for any failure of the
Sublessor to perform and comply with Sublessor's Remaining Obligations.
8.3 Sublessor hereby irrevocably authorizes and directs Sublessee
upon receipt of any written notice from the Master Lessor stating that a
Default exists in the performance of Sublessor's obligations under the
Master Lease, to pay to Master Lessor the Rent due and to become due under
the Sublease. Sublessor agrees that Sublessee shall have the right to rely
upon any such statement and request from Master Lessor, and that Sublessee
shall pay such Rent to Master Lessor without any obligation or right to
inquire as to whether such Default exists and notwithstanding any notice
from or claim from Sublessor to the contrary and Sublessor shall have no
right or claim against Sublessee for any such Rent so paid by Sublessee.
8.4 No changes or modifications shall be made to this Sublease
without the consent of Master Lessor.
9. Consent of Master Lessor.
9.1 In the event that the Master Lease requires that Sublessor
obtain the consent of Master Lessor to any subletting by Sublessor then,
this Sublease shall not be effective unless, within ten days of the date
hereof, Master Lessor signs this Sublease thereby giving it's consent to
this subletting.
9.2 in the event that the obligations of the 8ubts.sor under the
Master Lease have been guaranteed by third parties then neither is Sublease, nor
the Master Lessor's Consent, shaft be effective unless, within 10 days of the
date hereof, said guarantors sign this sublease thereby giving their consent to
this Sublease.
9.3 in the event that Master Lessor does give such consent than:
(a) Such consent shall not release Sublessor of Its
obligations or alter the primary liability of Sublessor to pay the Rent
and perform and comply with all of the obligations of Sublessor to be
performed under the Master Lease.
(b) The acceptance at Rent by Master Lessor from Sublessee or
anyone alas liable under the Master Lease shell not be deemed a waiver by
Master Lessor at any provisions of the Master Lease.
(c) The consent to this Sublease shall not constitute consent
to any subsequent subletting or assignment
(d) In the event of any Default of Sublessor under the Master
lease, Master Lessor may proceed directly against Sublessor, any
guarantors or anyone else liable under the Master Lease or this Sublease
without first exhausting Master Lessor's remedies against any other person
or entity liable thereon to Master Lessor.
(e) Master Lessor may consent to subsequent sublettings and
assignments of the Master Lease or this Sublease or any amendments or
modifications thereto without notifying Sublessor or anyone also Liable
under the Master Lease arid without obtaining their consent and such
action shall not relieve such persons from liability.
(f) in the event that Sublessor shall Default in lie
obligations under the Master Lease, then Master Lessor, at Its option end
'without being obligated to do so. may require Sublessee to attorn to
Master Lessor in which event Master Lessor shill undertake the obligations
of 5ubiesot under this Sub1eso from , time of the exercise of said
option to termination of this Sublease but Master Lessor hail not be
liable for any prepaid Rent nor any Security Deposit paid by Sublessee,
nor shall Master Lessor or be liable fur any other Defaults I the
6ub1ieor under ha Sublease.
9.4 The signature of the Master Lessor and any Guarantors of
Sublessor at the and of this document shall constitute their consent to
the terms of JO Sublease.
9.5 Master Lessor acknowledges that, to the beat of Master Lessor's
knowledge. no Default presently exists under the Master Lease of obligation,
to be performed by Sublessor and that the Master Lease is in full force and
effect.
9.6 In the event that Sublessor Defaults under its obligations to
be performed Under the Master Lease by Sublessor, Master Lessor agrees to
deliver to Sublessee a copy of any such notice of default. 8ublesoo shall
have the right to cure any Default of Sublessor described in any notice of
default within ten days after service of such notice of default on
Sublessee, If such Default In cured by Sublessee ran Sublessee shall have
the right of reimbursement and offset from end against Sublessor.
10. Brokers Fee.
10.1 Upon execution hereof by all parties, Sublessor shall pay to
Colliers ▇▇▇▇▇▇ & Commercial West Associates licensed real estate broker,
('Broker), a tee as set forth in a separate agreement between Sublessor and
Broker, or In the event there is no such separate agreement, the sum of $2, 925
each/$5,950. total for brokerage services rendered by Broker, Sublessor in this
transaction.
10.2 Sublessor agrees that if Sublessee exercises any option or
right of first refusal us granted by Sublessor herein, or any option right
substantially similar thereto, either to extend the term of this Sublease,
to renew this Sublease, to purchase the Premises, or to lease or purchase.
adjacent property which Sublessor may own or in which Sublessor have an
Interest, then Sublessor shall pay to Broker a fee In accordance with the
schedule of Broker in effect at the Urn. of the execution of this Sublease.
Notwithstanding the foregoing, Sublessor's obligation under his Paragraph
10.2 is limited to a transaction in which Sublessor is acting, as Sublessor,
lessor or seller.
10.3 Master Lesser egress that If Sublessee shall exercise any
option or right of first refusal granted to Sublessee by Master Lessor in
connection with this Sublease, or any option or right substantially similar
thereto. either to extend or renew the Master Lease, to purchase the Premises or
any part thereof, or to lease or purchase. adjacent property which Master Lessor
may own or In which Master Lessor has an Interest, or If Broker is the procuring
cause of any other lease or sales entered Into between Sublessee and Master
Lessor pertaining to the Premises, any part thereof, or any adjacent property'
which Master Lessor owns or in which It has in Interest, then as to any of said
transactions, Master Lessor shall pay to Broker a fee, In cash, in accordance
with the schedule of Broker in effect at the time of the execution of this
Sublease.
10.4 Any fee due from Sublessor or Master Lessor hereunder shall be
due and payable upon the exercise Of any option to extend or renew, upon the
execution of any new lease, or, In the event of a purchase at the close of
escrow,
10.5 Any transference or Sublessor's interest In this Sublease, or
of Master Lessor's interest In the Master Lease, by accepting an assignment
thereof, shall be deemed to have assumed the respective obligations of Sublessor
or Master Lesser under this Paragraph 10. Broker shall be deemed to be a
third-party beneficiary of this paragraph 10.
11. Attorney'. Fees. If any party or the Broker named herein brings an
action to enforce the terms hereof or to declare rights hereunder, the
prevailing party in any such action, on Wet and appeal, shall be entitled to
his reasonable attorney's tons to be paid by the losing party as fixed by
the Court
12. Additional Provisions. (If, there are no additional provisions,
draw a line from this, point to the next printed word after the space left
here. If there are additional, provisions place the same here, 0 -
13. Rental Abatement: Monthly Rental shall be abated for Months 1, 2,3
and 4 of the sublease
14. Sublessor's Obligations: Prior to sublease commencement, Sublessor
shall that all HVAC, intercom, plumbing and
lighting systems are in good working order.
-
15. Acceptance of Premises: Upon Vacating of premises by existing Sublease
(Fresno Moving & Storage), Sublessor or
Sublessor's agent and Sublessee
Or Sublessee's agent will walk premises to
discover and remedy at Sublessor's expense any
outstanding repair or obligations as required by
said Master Lease, including normal wear and tear
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN
INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY REAL ESTATE BROKER AS TO THE
LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS SUBLEASE OR THE
TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS
SUBLEASE.
2. . RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION
OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO:
THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PROPERTY,
THE STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS,
AND THE SUITABILITY OF THE PREMISES FOR SUBLESSEE'S INTENDED USE.
WARNING: IF THE SUBJECT PROPERTY IS LOCATED IN A STATE OTHER THAN
CALIFORNIA, CERTAIN PROVISIONS OF THE SUBLEASE MAY NEED TO BE REVISED TO
COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED.
Executed at: Costa Mesa, CA Aircold Supply a div of Westburne Supply,
UpRight, Inc.
By:
Executed at: UpRight, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
BY: VP Operations
Executed at: By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
"Master Lessor" (Corporate Seal)
NOTE: These forms are often modified to moot changing requirements of law
and needs of the industry. Always write or call to make sure you are
utilizing the most current form: AMERICAN INDUSTRIAL REAL ESTATE
ASSOCIATION, ▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. (213)
687-8777.