Exhibit 10.29
INDUSTRIAL REAL ESTATE LEASE
(MULTI-TENANT FACILITY)
ARTICLE ONE: BASIC TERMS
This Article One contains the Basic Terms of this Industrial Real Estate
Lease (this "Lease") between Landlord and Tenant named below. Other Articles,
Sections and Paragraphs of this Lease referred to in this Article One explain
and define the Basic Terms and are to be read in conjunction with the Basic
Terms.
SECTION 1.01. DATE OF LEASE: December 1, 2000
SECTION 1.02. LANDLORD (include legal entity): BUCKHEAD INDUSTRIAL
PROPERTIES, INC., a Maryland corporation Address of Landlord: c/o Lend Lease
Real Estate Investments, Inc., 19800 MacArthur Boulevard, Suite 1000, Irvine, CA
92812
SECTION 1.03. TENANT (include legal entity): ALL AMERICAN IDT, INC., a
California corporation Address of Tenant: 1 Marconi, Suite F, Irvine,
California, 92618, Attention: local manager , with a copy to: All American
Semiconductor, Inc., 16115 N.W. 52nd Avenue, Miami, Florida 33014; Attention:
Howard Flanders
SECTION 1.04. TENANT'S GUARANTOR: (If none, so state) ALL AMERICAN
SEMICONDUCTOR, INC.
SECTION 1.05. PROPERTY: The Property is part of Landlord's multi-tenant
real property development known as the Phoenix Business Center and described or
depicted on Exhibit "A" (the "Project"). The Project includes the land, the
buildings and all other improvements located on the land, and the common areas
described in Paragraph 4.05(a). The Property is an approximately Twenty-Six
Thousand Seven Hundred (26,700) square foot portion of that certain industrial
building commonly known as 1 Marconi, Suite F, Irvine, California, as depicted
on the site plan attached hereto as Exhibit "A".
SECTION 1.06. PERMITTED USE: (See Article Five) The manufacturing,
assembly, testing, warehousing and distribution of flat panel electronics and
other similar products produced by Tenant or Guarantor and general office use
related thereto and for no other use or purpose.
SECTION 1.07. LEASE TERM: Ten (10) years zero (0) months beginning on
December 15, 2000 or such other date as is specified in Section 2.01 of this
Lease (the "Commencement Date"), and ending on December 14, 2010.
SECTION 1.08. RENT AND OTHER CHARGES PAYABLE BY TENANT:
(a) BASE RENT: Seventeen Thousand Three Hundred Fifty-Five Dollars
($17,355) per month for the first thirty (30) months, as provided in Section
3.01, and shall be increased on the first day of the thirty-first (31st) month
after the Commencement Date, as provided in Section 3.02.
(b) OTHER PERIODIC PAYMENTS: (i) Real Property Taxes (See Section 4.02,
4.08); (ii) Utilities (See Section 4.03; (iii) Insurance Premiums (See Section
4.04, 4.08); (iv) Tenant's initial Pro Rata Share of Common Area Expenses 7.49%
(See Section 4.05); (v) Impounds for Insurance Premiums and Property Taxes (See
Section 4.08); and (vi) Maintenance, Repairs and Alterations (See Article Six).
SECTION 1.09. BROKERS: (See Article Fourteen) (If none, so state)
Landlord's Broker: CB Richard Ellis, Inc. Tenant's Broker: The Elden Company
SECTION 1.10. INITIAL SECURITY DEPOSIT: (See Section 3.03) $23,099.51
SECTION 1.11. VEHICLE PARKING SPACES ALLOCATED TO TENANT: (See Section
4.05) In common with other tenants of the Project (approximately 53 unreserved
parking spaces).
SECTION 1.12. COMMISSION PAYABLE TO LANDLORD'S BROKER AND TENANT'S
BROKER: (See Article Fourteen) Per Separate Agreement.
SECTION 1.13. LANDLORD'S SHARE OF PROFIT ON ASSIGNMENT OR SUBLEASE:
(See Section 9.05) Fifty percent (50%) of the Profit (the "Landlord's Share").
SECTION 1.14. RIDERS AND EXHIBITS: The following Riders and Exhibits
are attached to and made a part of this Lease: (If none, so state)
Exhibit "A" - Site Plan
Exhibit "B" - Hazardous Materials Questionnaire
Exhibit "C" - Tenant's Moveout Responsibilities
Exhibit "D" - Memorandum of Term Commencement
Tenant shall comply at all times with all terms and provisions of all Riders and
Exhibits to this Lease attached hereto and incorporated herein by this
reference.
ARTICLE TWO: LEASE TERM
SECTION 2.01. LEASE OF PROPERTY FOR LEASE TERM. Landlord leases the
Property to Tenant and Tenant leases the Property from Landlord for the Lease
Term. The Lease Term is for the period stated in Section 1.07 above and shall
begin and end on the dates
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specified in Section 1.07 above, unless the beginning or end of the Lease Term
is changed under any provision of this Lease. The Commencement Date shall be the
date specified in Section 1.07 above for the beginning of the Lease Term, unless
advanced or delayed under any provision of this Lease. Within fifteen (15) days
after the Commencement Date, Landlord and Tenant shall execute a Memorandum of
Term Commencement in the form attached hereto as Exhibit "D".
SECTION 2.02. DELAY IN COMMENCEMENT. Landlord shall not be liable to
Tenant if Landlord does not deliver possession of the Property to Tenant on the
Commencement Date. Landlord's non-delivery of the Property to Tenant on that
date shall not affect this Lease or the obligations of Tenant under this Lease
except that the Commencement Date shall be delayed until Landlord delivers
possession of the Property to Tenant and the Lease Term shall be extended for a
period equal to the delay in delivery of possession of the Property to Tenant,
plus the number of days necessary to end the Lease Term on the last day of a
month. If Landlord does not deliver possession of the Property to Tenant within
ninety (90) days after the Commencement Date, Tenant may elect to cancel this
Lease by giving written notice to Landlord within ten (10) days after the ninety
(90) day period ends. If Tenant gives such notice, this Lease shall be cancelled
and neither Landlord nor Tenant shall have any further obligations to the other.
If Tenant does not give such notice, Tenant's right to cancel this Lease shall
expire and the Lease Term shall commence upon the delivery of possession of the
Property to Tenant. If delivery of possession of the Property to Tenant is
delayed, Landlord and Tenant shall, upon such delivery, execute an amendment to
this Lease setting forth the actual Commencement Date and expiration date of
this Lease. Failure to execute such amendment shall not affect the actual
Commencement Date and expiration date of this Lease.
SECTION 2.03. EARLY OCCUPANCY. If Tenant occupies the Property prior to
the Commencement Date, Tenant's occupancy of the Property shall be subject to
all of the provisions of this Lease, except as otherwise set forth in this
Section 2.03. Early occupancy of the Property shall not advance the expiration
date of this Lease. Tenant shall be entitled to early occupancy of the Property
commencing upon full execution of this Lease and continuing until the
Commencement Date, solely for the purpose of installing Tenant's furniture,
fixtures and equipment and otherwise preparing the Property for Tenant's
occupancy but in no event for conducting Tenant's business; provided that (a)
Tenant shall not interfere with Landlord's work or activities, if any, in
preparing the Property for Tenant's occupancy, and (b) Tenant shall provide
Landlord with evidence of Liability Insurance coverage pursuant to Section
4.04(a) hereof. Tenant shall not pay Base Rent or any other charges specified in
this Lease during the early occupancy period. Base Rent shall commence on the
Commencement Date.
SECTION 2.04. EARLY TERMINATION. Tenant, at its option, may terminate
this Lease, which termination shall be effective on the last day of the sixtieth
(60th) month after the Commencement Date (such date being referred to herein as
the "Termination Date") by giving Landlord notice of Tenant's election to
terminate this Lease not less than six (6) months prior to the Termination Date
(the "Termination Notice"). In connection with any such termination, Tenant
shall pay to Landlord, along with the Termination Notice, in addition to all
rent due through the later of the date that is six (6) months after the date
Landlord receives the Termination Notice or the date Tenant actually vacates the
Property, an amount equal to two (2) months of the then applicable Base Rent,
plus the unamortized portion of the Tenant Improvement Allowance (as hereinafter
defined) and all leasing commissions incurred by Landlord in connection with
this Lease amortized on a straight line basis over the Lease Term with interest
at eleven percent (11%) per annum. Upon such termination and Landlord's receipt
of the aforementioned sum, this Lease shall be of no further force or effect
except with respect to any obligations under this Lease that expressly survive
such termination, including without limitation, Tenant's indemnity obligations
and Tenant's obligations in connection with its move from the Property.
SECTION 2.05. HOLDING OVER. Tenant shall vacate the Property upon the
expiration or earlier termination of this Lease. Tenant shall reimburse Landlord
for and indemnify Landlord against all damages which Landlord incurs from
Tenant's delay in vacating the Property. If Tenant does not vacate the Property
upon the expiration or earlier termination of this Lease and Landlord thereafter
accepts rents from Tenant, Tenant's occupancy of the Property shall be a
"month-to-month" tenancy, subject to all of the terms of this Lease applicable
to a month-to-month tenancy, except that the Base Rent then in effect shall be
increased by fifty percent (50%) during the period of holdover.
ARTICLE THREE: BASE RENT
SECTION 3.01. TIME AND MANNER OF PAYMENT. Upon execution of this Lease,
Tenant shall pay Landlord the Base Rent in the amount stated in Paragraph
1.08(a) above for the first month of the Lease Term. On the first day of the
second month of the Lease Term and each month thereafter, Tenant shall pay
Landlord the Base Rent, in advance, without offset, deduction or prior demand.
The Base Rent shall be payable without notice or demand at Landlord's address or
at such other place as Landlord may designate in writing.
SECTION 3.02. On the first day of the thirty-first month following the
Commencement Date, Base Rent shall be increased to Nineteen Thousand Ninety and
50/100 Dollars ($19,090.50) per month and such amount shall be the Base Rent due
under this Lease through and including the sixtieth (60th) month following the
Commencement Date; and on the first day of the sixty-first (61st) month
following the Commencement Date, Base Rent shall be increased to Twenty Thousand
Nine Hundred Ninety-Nine and 55/100 Dollars ($20,999.55) per month and such
amount shall be the Base Rent due under this Lease through and including the
ninetieth (90th) month following the Commencement Date; and on the first day of
the ninety-first (91st) month following the Commencement Date, Base Rent shall
be increased to Twenty-Three Thousand Ninety-Nine and 51/100 Dollars
($23,099.51) per month and such amount shall be the Base Rent due under this
Lease through the one hundred twentieth (120th) month following the Commencement
Date.
SECTION 3.03. SECURITY DEPOSIT
(a) Upon the execution of this Lease, Tenant shall deposit with
Landlord a cash Security Deposit in the amount set forth in Section 1.10 above.
Landlord may apply all or part of the Security Deposit to any unpaid rent or
other charges due from Tenant or to cure any other defaults of Tenant. If
Landlord uses any part of the Security Deposit, Tenant shall restore the
Security Deposit to its full amount within ten (10) days after Landlord's
written request. Tenant's failure to do so shall be a material default under
this Lease. No interest shall be paid on the Security Deposit. Landlord shall
not be required to keep the Security Deposit separate from its other accounts
and no trust relationship is created with respect to the Security Deposit.
(b) Intentionally Deleted.
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SECTION 3.04. TERMINATION; ADVANCE PAYMENTS. Not more than thirty (30)
days after the termination of this Lease under Article Seven (Damage or
Destruction), Article Eight (Condemnation) or any other termination not
resulting from Tenant's default, and after Tenant has vacated the Property in
the manner required by this Lease, Landlord shall refund or credit to Tenant (or
Tenant's successor) the unused portion of the Security Deposit, any advance rent
or other advance payments made by Tenant to Landlord, and any amounts paid for
real property taxes and other reserves which apply to any time periods after
termination of this Lease.
ARTICLE FOUR: OTHER CHARGES PAYABLE BY TENANT
SECTION 4.01. ADDITIONAL RENT. All charges payable by Tenant other than
Base Rent are referred to herein as "Additional Rent." Unless this Lease
provides otherwise, Tenant shall pay all Additional Rent then due with the next
monthly installment of Base Rent. The term "rent" shall mean Base Rent and
Additional Rent.
SECTION 4.02. PROPERTY TAXES.
(a) Definition of "Real Property Tax." "Real Property Tax" means: (i)
any fee, license tax, business license fee, commercial rental levy, charge,
assessment, penalty or tax imposed by any taxing authority against the Property;
(ii) any tax on the Landlord's right to receive, or the receipt of, rent or
income from the Property or against Landlord's business of leasing the Property;
(iii) any tax or charge for fire protection, streets, sidewalks, road
maintenance, refuse or other services provided to the Property by any
governmental agency, (iv) any tax imposed upon this transaction or based upon a
re-assessment of the Property due to a change of ownership, as defined by
applicable law, or other transfer of all or part of Landlord's interest in the
Property; and (v) any charge or fee replacing any tax previously included within
the definition of Real Property Tax. "Real Property Tax" does not, however,
include Landlord's federal or state income, franchise, inheritance or estate
taxes.
(b) Real Property Taxes. Tenant shall pay all Real Property Taxes on the
Property (including any fees, taxes or assessments against, or as a result of,
any tenant improvements installed on the Property by or for the benefit of
Tenant) during the Lease Term in accordance with Section 4.05(e) and, if
applicable, Section 4.08 below. Landlord shall reimburse Tenant for any Real
Property Taxes paid by Tenant covering any period of time prior to or after the
Lease Term. If Tenant fails to pay the Real Property Taxes when due, in
accordance with Section 4.05(e), Landlord may pay the taxes and Tenant shall
reimburse Landlord for the amount of such tax payment as Additional Rent.
(c) Joint Assessment. If the Property is not separately assessed,
Landlord shall reasonably determine Tenant's share of Real Property Taxes
payable by Tenant under Paragraph 4.02(a) from the assessor's worksheets or
other reasonably available information. Tenant shall pay such share to Landlord
in accordance with Section 4.05(e) below.
(d) Personal Property Taxes.
(i) Tenant shall pay all taxes charged against trade fixtures,
furnishings, equipment or any other personal property belonging to
Tenant. Tenant shall use its best efforts to have personal property
taxed separately from the Property.
(ii) If any of Tenant's personal property is taxed with the
Property, Tenant shall pay Landlord the taxes for the personal property
within fifteen (15) days after Tenant receives a written statement from
Landlord for such personal property taxes.
SECTION 4.03. UTILITIES. Tenant shall pay, directly to the appropriate
supplier, the cost of all natural gas, heat, light, power, sewer service,
telephone, water, refuse disposal (if not paid by Landlord and charged back to
Tenant as a Common Area Expense) and other utilities and services supplied to
the Property. However, if any services or utilities are jointly metered with
other property, Landlord shall make a reasonable determination of Tenant's
proportionate share of the cost of such utilities and services and Tenant shall
pay such share to Landlord within fifteen (15) days after receipt of Landlord's
written statement.
SECTION 4.04. INSURANCE POLICIES.
(a) Liability Insurance. During the Lease Term, Tenant shall maintain a
policy of commercial general liability insurance (sometimes known as broad form
comprehensive general liability insurance) insuring Tenant against liability for
bodily injury, property damage (including loss of use of property) and personal
injury arising out of the operation, use or occupancy of the Property. Landlord
and Landlord's agents, whose names shall be provided to Tenant by Landlord,
shall be named as an additional insured under such policy. The initial amount of
such insurance shall be Two Million and No/100 Dollars ($2,000,000.00) per
occurrence and shall be subject to periodic increase based upon inflation,
increased liability awards, recommendation of Landlord's professional insurance
advisers and other relevant factors; provided that such periodic increases shall
be consistent with the amounts of insurance then being required of tenants
comparable to Tenant by landlords comparable to Landlord in projects comparable
to the Project. The liability insurance obtained by Tenant under this Paragraph
4.04(a) shall (i) be primary and noncontributing; (ii) contain cross-liability
endorsements; and (iii) insure Landlord against Tenant's performance under
Section 5.05 resulting from the negligence of Tenant. The amount and coverage of
such insurance shall not limit Tenant's liability nor relieve Tenant of any
other obligation under this Lease. Landlord may also obtain comprehensive public
liability insurance in an amount and with coverage determined by Landlord
insuring Landlord against liability arising out of ownership, operation, use or
occupancy of the Property. The policy obtained by Landlord shall not be
contributory and shall not provide primary insurance. Tenant shall secure an
appropriate clause in, or an endorsement upon, each insurance policy required by
this Lease, pursuant to which the insurance company waives subrogation or
permits the insured, prior to any loss, to agree with a third party to waive any
claim it might have against said third party without invalidating the coverage
under the insurance policy. Such waiver of subrogation or permission for waiver
of any claim shall extend to the agents and employees of Landlord and Tenant,
respectively. Tenant shall not be required to carry any hazardous materials
insurance.
(b) Property and Rental Income Insurance. During the Lease Term,
Landlord shall maintain policies of insurance covering loss of or damage to the
Property in the full amount of its replacement value. Such policy shall contain
an Inflation Guard Endorsement and shall provide protection against all perils
included within the classification of fire, extended coverage, vandalism,
malicious mischief, special extended perils (all risk), sprinkler leakage and
any other perils which Landlord deems reasonably necessary. Landlord shall have
the right to obtain flood and earthquake insurance, and may, upon Tenant's
request, obtain insurance on building improvements installed on the Property.
Landlord shall not obtain insurance for Tenant's fixtures or equipment. During
the Lease
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Term, Landlord shall also maintain a rental income insurance policy, with loss
payable to Landlord, in an amount equal to one year's Base Rent, plus estimated
real property taxes and insurance premiums. Tenant shall not do or permit
anything to be done which invalidates any such insurance policies. Tenant shall
be liable for the payment of any deductible amount under Landlord's or Tenant's
insurance policies maintained pursuant to this Section 4.04. Notwithstanding
anything to the contrary contained in this Lease, in the event that the Property
is the only portion of the Project that is damaged or that suffers a loss,
Tenant shall be liable for the payment of the entire deductible amount under
Landlord's insurance policies maintained pursuant to this Lease. In the event
that the entire building in which the Property is located (the "Building") is
damaged or suffers a loss, Tenant shall be liable only for Tenant's pro rata
share ("Tenant's Pro Rata Share of the Building") of any deductible amount under
Landlord's insurance policies maintained pursuant to this Lease. Tenant's Pro
Rata Share of the Building shall be calculated by dividing the square foot area
of the Property, as set forth in Section 1.04 of this Lease, by the aggregate
square foot area of the Building. In the event that a portion of the Project
that is greater than the Building is damaged or suffers a loss, Tenant shall be
liable only for Tenant's pro rata share ("Tenant's Pro Rata Share of the
Project") of any deductible amount under Landlord's insurance policies
maintained pursuant to this Lease. For the purposes of this Section 4.04(b),
Tenant's Pro Rata Share of the Project shall be calculated by dividing the
square foot area of the Property that is damaged by the aggregate square foot
area of the portion of the Project that is damaged.
(c) Payment of Premiums. Subject to Section 4.08, Tenant shall pay all
premiums for the insurance policies described in Paragraphs 4.04(a) and (b)
(whether obtained by Landlord or Tenant) within fifteen (15) days after Tenant's
receipt of a copy of the premium statement or other evidence of the amount due.
For insurance policies maintained by Landlord which cover improvements on the
entire project, Tenant shall pay Tenant's prorated share of the premiums, in
accordance with the formula in Paragraph 4.05(e) for determining Tenant's Pro
Rata Share of Common Area Expenses. In addition, any premiums paid by Landlord
for commercial general liability insurance, including umbrella or excess
liability relating to the Project and/or the Property, shall be included as a
Common Area Expense, and Tenant shall pay its Pro Rata Share of any such
premiums. If insurance policies maintained by Landlord cover improvements on
real property other than the Project, Landlord shall deliver to Tenant a
statement of the premium applicable to the Property showing in reasonable detail
how Tenant's share of the premium was computed. If the Lease Term expires before
the expiration of an insurance policy maintained by Landlord, Tenant shall be
liable for Tenant's prorated share of the insurance premiums. Before the
Commencement Date, Tenant shall deliver to Landlord a copy of any policy of
insurance which Tenant is required to maintain under this Section 4.04. At least
thirty (30) days prior to the expiration of any such policy, Tenant shall
deliver to Landlord a renewal of such policy. As an alternative to providing a
policy of insurance, Tenant shall have the right to provide Landlord a
certificate of insurance, executed by an authorized officer of the insurance
company, showing that the insurance which Tenant is required to maintain under
this Section 4.04 is in full force and effect and containing such other
information as Landlord reasonably requires.
(d) General Insurance Provisions.
(i) Any insurance which Tenant is required to maintain under this
Lease shall include a provision which requires the insurance carrier to
give Landlord not less than thirty (30) days' written notice prior to
any cancellation or modification of such coverage, however, if
cancellation is due to non-payment of a premium only ten (10) days'
prior written notice to Landlord shall be required.
(ii) If Tenant fails to deliver any policy, certificate or renewal
to Landlord required under this Lease within the prescribed time period
or if any such policy is cancelled or modified during the Lease Term
without Landlord's consent, Landlord may obtain such insurance, in
which case Tenant shall reimburse Landlord for the cost of such
insurance within fifteen (15) days after receipt of a statement that
indicates the cost of such insurance.
(iii) Tenant shall maintain all insurance required under this Lease
with companies holding a "General Policy Rating" of A-12 or better, as
set forth in the most current issue of "Best Key Rating Guide".
Landlord and Tenant acknowledge the insurance markets are rapidly
changing and that insurance in the form and amounts described in this
Section 4.04 may not be available in the future. Tenant acknowledges
that the insurance described in this Section is for the primary benefit
of Landlord. If at any time during the Lease Term, any portion of the
insurance required to be maintained by Tenant under this Lease is not
available in the jurisdiction in which the Property is located, Tenant
shall nevertheless maintain insurance coverage which Landlord deems
customary and commercially reasonable in the insurance industry for
Tenant's type of business. Landlord makes no representation as to the
adequacy of such insurance to protect Landlord's or Tenant's interests.
Therefore, Tenant shall obtain any such additional property or
liability insurance which Tenant deems necessary to protect Landlord
and Tenant; provided, that if Tenant maintains any insurance in
addition to the insurance required under this Section 4.04, Landlord
shall be named as an additional insured thereon, and with respect to
any property insurance, Tenant shall make the proceeds thereof
available for restoration of the Property after any casualty.
(iv) Unless prohibited under any applicable insurance policies
maintained, Landlord and Tenant each hereby waives any and all rights
of recovery against the other, or against the officers, employees,
agents or representatives of the other, for loss of or damage to its
property or the property of others under its control, if such loss or
damage is covered by any insurance policy in force (whether or not
described in this Lease) at the time of such loss or damage. Upon
obtaining the required policies of insurance, Landlord and Tenant shall
give notice to the insurance carriers of this mutual waiver of
subrogation.
SECTION 4.05. COMMON AREAS; USE, MAINTENANCE AND COSTS.
(a) Common Areas. As used in this Lease, "Common Areas" shall mean all
areas within the Project which are available for the common use of tenants of
the Project and which are not leased or held for the exclusive use of Tenant or
other tenants, including, but not limited to, parking areas, driveways,
sidewalks, loading areas, access roads, corridors, landscaping and planted
areas. Landlord, from time to time, may change the size, location, nature and
use of any of the Common Areas, convert Common Areas into leasable areas,
construct additional parking facilities (including parking structures) in the
Common Areas, and increase or decrease Common Area land and/or facilities.
Tenant acknowledges that although such activities and changes may result in
inconvenience to Tenant, Tenant consents to such activities and changes and
agrees that the same shall not constitute a breach of this Lease or an eviction
of Tenant, constructive or otherwise.
(b) Use of Common Areas. Tenant shall have the nonexclusive right (in
common with other tenants and all others to whom Landlord has granted or may
grant such rights) to use the Common Areas for the purposes intended, subject to
such reasonable rules and regulations as Landlord may establish from time to
time. Tenant shall abide by such rules and regulations and shall use its best
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efforts to cause others who use the Common Areas with Tenant's express or
implied permission to abide by Landlord's rules and regulations. At any time,
Landlord may close any Common Areas to perform any acts in the Common Areas as,
in Landlord's judgment, are desirable to improve the Project and Tenant agrees
that the same shall not constitute a breach of this Lease or an eviction of
Tenant, constructive or otherwise. Tenant shall not interfere with the rights of
Landlord, other tenants or any other person entitled to use the Common Areas.
(c) Specific Provision re: Vehicle Parking. Tenant shall be entitled to
use the number of vehicle parking spaces in the Project allocated to Tenant in
Section 1.11 of this Lease, if any, and the three (3) loading docks adjacent to
the Property without paying any additional rent. Tenant's parking shall not be
reserved and shall be limited to vehicles no larger than standard size
automobiles or pickup utility vehicles. Tenant shall not cause large trucks or
other large vehicles to be parked within the Project or on the adjacent public
streets. Temporary parking of large delivery vehicles in the Project may only be
permitted by the rules and regulations established by Landlord. Vehicles shall
be parked only in striped parking spaces and not in driveways, loading areas or
other locations not specifically designated for parking. Handicapped spaces
shall only be used by those legally permitted to use them. If Tenant parks more
vehicles in the parking area than the number set forth in Section 1.11 of this
Lease, such conduct shall be a material breach of this Lease. In addition to
Landlord's other remedies under this Lease, Tenant shall pay a daily charge
determined by Landlord for each such additional vehicle.
(d) Maintenance of Common Areas. Landlord shall maintain the Common
Areas in good order, condition and repair and shall operate the Project, in
Landlord's sole discretion, as a first-class industrial/commercial real property
development. Tenant shall pay Tenant's Pro Rata Share (as determined below) of
all costs incurred by Landlord for the operation and maintenance of the Common
Areas ("Common Area Expenses"). Common Area Expenses include, but are not
limited to, costs and expenses for the following: gardening and landscaping;
utilities, water and sewage charges; maintenance of signs (other than tenants'
signs); premiums for liability, property damage, fire insurance and other types
of casualty insurance on the Common Areas and worker's compensation insurance;
all property taxes levied on or attributable to personal property used in
connection with the Common Areas; straight-line depreciation on personal
property owned by Landlord which is consumed in the operation or maintenance of
the Common Areas; rental or lease payments paid by Landlord for rented or leased
personal property used in the operation or maintenance of the Common Areas; fees
for required licenses and permits; repairing, resurfacing, repaving,
maintaining, painting, lighting, cleaning, refuse removal, security and similar
items; reserves for roof replacement and exterior painting and other appropriate
reserves; and a reasonable allowance to Landlord for Landlord's supervision of
the Common Areas (not to exceed five percent (5%) of the gross rents of the
Project for the calendar year). Landlord may cause any or all of such services
to be provided by third parties and the cost of such services shall be included
in Common Area Expenses. Common Area Expenses shall not include depreciation of
real property which forms part of the Common Areas.
(e) Tenant's Share and Payment. Tenant shall pay Tenant's annual Pro
Rata Share of all Common Area Expenses (prorated for any fractional month) upon
written notice from Landlord that such costs are due and payable, and in any
event prior to delinquency. Tenant's Pro Rata Share shall be calculated by
dividing the square foot area of the Property, as set forth in Section 1.05 of
this Lease, by the aggregate square foot area of the Project which is leased or
held for lease by tenants, as of the date on which the computation is made.
Tenant's initial Pro Rata Share is set out in Paragraph 1.08(b). Any changes in
the Common Area Expenses and/or the aggregate area of the Project leased or held
for lease during the Lease Term shall be effective on the first day of the month
after such change occurs. Landlord may, at Landlord's election, estimate in
advance and charge to Tenant monthly, all Real Property Taxes for which Tenant
is liable under Section 4.02 of this Lease, all insurance premiums for which
Tenant is liable under Section 4.04 of this Lease, all maintenance and repair
costs for which Tenant is liable under Section 6.04 of this Lease, and all other
Common Area Expenses payable by Tenant hereunder. Tenant shall pay such
estimated amounts monthly along with Tenant's payment of Base Rent. Landlord may
adjust such estimates at any time based upon Landlord's experience and
anticipation of costs. Such adjustments shall be effective as of the next rent
payment date after notice to Tenant. At Landlord's election, such estimated
Common Area Expenses shall be paid quarterly or monthly. Within ninety (90) days
after the end of each calendar year of the Lease Term, Landlord shall deliver to
Tenant a statement setting forth, in reasonable detail, the Common Area Expenses
paid or incurred by Landlord during the preceding calendar year and Tenant's Pro
Rata Share. Upon receipt of such statement, there shall be an adjustment between
Landlord and Tenant, with payment to or credit given by Landlord (as the case
may be) so that Landlord shall receive the entire amount of Tenant's share of
such costs and expenses for such period. Notwithstanding anything to the
contrary contained herein, Landlord shall have the right, from time to time, to
equitably allocate some or all of the Common Area Expenses for the Project among
different portions or tenants of the Project ("Cost Pools"), in Landlord's
reasonable discretion. The Common Area Expenses within each such Cost Pool shall
be allocated and charged to the tenants within such Cost Pool in an equitable
manner.
SECTION 4.06. LATE CHARGES. Tenant's failure to pay rent promptly may
cause Landlord to incur unanticipated costs. The exact amount of such costs are
impractical or extremely difficult to ascertain. Such costs may include, but are
not limited to, processing and accounting charges and late charges which may be
imposed on Landlord by any ground lease, mortgage or trust deed encumbering the
Property. Therefore, if more than once during the Lease Term, Landlord does not
receive any rent payment within three (3) days after it becomes due, Tenant
shall pay Landlord a late charge equal to five percent (5%) of the overdue
amount. The parties agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of such late payment.
SECTION 4.07. INTEREST ON PAST DUE OBLIGATIONS. Any amount owed by
Tenant to Landlord which is not paid within ten (10) days after the date due
shall bear interest at the rate of fifteen percent (15%) per annum from the due
date of such amount. However, interest shall not be payable on late charges to
be paid by Tenant under this Lease. The payment of interest on such amounts
shall not excuse or cure any default by Tenant under this Lease. If the interest
rate specified in this Lease is higher than the rate permitted by law, the
interest rate shall be decreased to the maximum legal interest rate permitted by
law.
SECTION 4.08. IMPOUNDS FOR INSURANCE PREMIUMS AND REAL PROPERTY TAXES.
In addition to and without limiting Tenant's obligations with respect to payment
of Landlord's estimate pursuant to Section 4.05(e) above, if requested by any
ground lessor or lender to whom Landlord has granted a security interest in the
Property, or if Tenant is more than ten (10) days late in the payment of rent
more than once in any consecutive twelve (12) month period, Tenant shall pay
Landlord a sum equal to one-twelfth (1/12) of the annual real property taxes and
Landlord's insurance premiums payable by Tenant under this Lease, together with
each payment of Base Rent. Landlord shall hold such payments in a non-interest
bearing impound account. If unknown, Landlord shall reasonably estimate the
amount of real property taxes and insurance premiums when due. Tenant shall pay
any deficiency of funds in the impound account to Landlord upon written request.
If Tenant defaults under this Lease, Landlord may apply any funds in the impound
account to any obligation then due under this Lease.
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ARTICLE FIVE: USE OF PROPERTY
SECTION 5.01. PERMITTED USE. Tenant may use the Property only for the
Permitted Use set forth in Section 1.06 above.
SECTION 5.02. MANNER OF USE. Tenant shall not cause or permit the
Property to be used in any way which constitutes a violation of any law,
ordinance, or governmental regulation or order, which annoys or interferes with
the rights of tenants of the Project, or which constitutes a nuisance or waste.
Notwithstanding anything contained in this Lease to the contrary, Tenant shall
at its sole cost and expense, faithfully observe and promptly comply and cause
the Property to comply with all local, state or federal laws, statutes,
ordinances and governmental rules, regulations or requirements now or hereafter
in force including, but not limited to, the Occupational Safety and Health Act,
laws or regulations relating to the accessibility or useability of the Property
by disabled persons, and the requirements of any board of fire underwriters or
other similar bodies now or hereafter constituted relating to or affecting the
condition, use or occupancy of the Property, regardless of (a) the relationship
of the cost of compliance to the Base Rent reserved in this Lease; (b) the
length of the Lease Term; (c) the degree to which compliance would benefit
Landlord or Tenant; (d) whether compliance relates or pertains to structural or
non-structural matters; (e) the degree to which Tenant's use and enjoyment of
the Property will be interfered with while work to comply is taking place; and,
(f) whether the parties contemplated application of the particular applicable
law in question. Tenant acknowledges that Landlord makes no representation or
warranty in this Lease that the Property or any portion thereof is in compliance
with any governmental statutes, ordinances, rules or regulations relating to the
accessibility or useability of the Property or any portion thereof by disabled
persons. Tenant shall obtain and pay for all licenses and permits, including a
Certificate of Occupancy, required for Tenant's occupancy or use of the
Property. Notwithstanding the foregoing, if any alteration or modification to
the structure (including the bearing and demising walls and the roof) of the
Property or its systems ("Structural/System Modification") is required under any
law, statute, code, rule or regulation ("Laws"), (i) with respect to Laws in
effect prior to the Commencement Date, including but not limited to the
Americans With Disabilities Act, Landlord shall, at Landlord's sole cost and
expense, and not as an Common Area Expense, make such Structural/System
Modification to the Property and Common Areas if and when required by any
governmental agency, pursuant to such Laws; provided, however, that if such
Structural/System Modification is triggered by or required as a result of
Tenant's specific use of or improvements to the Property, Tenant shall solely
bear the cost of such Structural/System Modification, and (ii) with respect to
new Laws taking effect after the Commencement Date (for this purpose, a change
in the interpretation of or a change in the procedures for enforcing an existing
Law will be the equivalent of a new Law), Landlord shall, subject to
reimbursement by Tenant as a Common Area Expense in accordance with Section
4.05(e) of this Lease, make such Structural/System Modification to the Property
and Common Areas, if and when required by any governmental agency, pursuant to
such new Laws; provided, however, that the cost of such Structural/System
Modification shall be amortized over the useful life of such items; and provided
further, that if such Structural/System Modification is triggered by or required
as a result of Tenant's specific use of or improvements to the Property, Tenant
shall solely bear the cost of such Structural/System Modification.
Notwithstanding the foregoing, in connection with Tenant's initial Tenant
Improvements to the Property, Landlord shall, at Landlord's sole cost and
expense, make any modifications to the Property required by any governmental
agency pursuant to the Americans With Disabilities Act of 1990 ("ADA") in order
to bring into compliance any portion of the Property not in compliance with the
ADA on the date of delivery of the Property to Tenant; provided that, to the
extent the Tenant Improvements do not constitute ordinary industrial/office
space improvements, Tenant shall bear the cost of any modifications to the
Property required by any governmental agency pursuant to the ADA as a result of
such non-standard Tenant Improvements.
SECTION 5.03. EXTRAORDINARY USE. In the event Tenant's use of the
Property causes extraordinary wear and tear on the Property or on all or any
portion of the Common Area or requires maintenance in excess of that ordinarily
required for tenants of the Project, as reasonably determined by Landlord,
Landlord may, at Landlord's election, charge to Tenant any reasonable costs
relating to or arising out of such extraordinary use, including, but not limited
to, additional maintenance and repair costs and Tenant shall reimburse Landlord
on demand therefor.
SECTION 5.04. HAZARDOUS MATERIALS.
(a) DEFINITION. As used in this Lease, the term "Hazardous Materials"
means any flammable items, explosives, radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or included in the definition of "hazardous substances", "hazardous
wastes", "infectious wastes", "hazardous materials" or "toxic substances" now or
subsequently regulated under any federal, state or local laws, regulations or
ordinances including, without limitation, oil, petroleum-based products, paints,
solvents, lead, cyanide, DDT, printing inks, acids, pesticides, ammonia
compounds and other chemical products, asbestos, PCBs and similar compounds, and
including any different products and materials which are subsequently found to
have adverse effects on the environment or the health and safety of persons.
(b) GENERAL PROHIBITION. Tenant shall not cause or permit any Hazardous
Materials to be generated, produced, brought upon, used, stored, treated,
discharged, released, spilled or disposed of on, in, under or about the Property
by Tenant, its affiliates, agents, employees, contractors, sublessees, assignees
or invitees (collectively, "Tenant Parties") without the prior written consent
of Landlord, which consent shall be granted or denied in Landlord's good faith
business judgment; provided, however, Landlord's consent shall not be required
to use or store (i) small quantities of standard office supplies standard for
offices of the size of the office space contained in the Property or (ii) small
quantities of common household cleaning supplies standard for the size of the
Property (such supplies, together with any other hazardous materials for which
Landlord's written consent is given, are hereinafter referred to as the
"Permitted Materials"). In no event, however, shall Landlord be required to
consent to the use of asbestos-containing materials, PCBs or the installation or
use of any storage tanks in, on or under the Property. Tenant shall indemnify,
defend and hold Landlord, and each of Landlord's partners, shareholders,
officers, directors, employees, agents, attorneys, investment advisors,
portfolio managers, property managers, trustees, ancillary trustees,
beneficiaries and their affiliates (including, without limitation, Equitable
Real Estate Investment Management, Inc.), harmless from and against any and all
actions (including, without limitation, remedial or enforcement actions of any
kind, administrative or judicial proceedings, and orders or judgments arising
out of or resulting therefrom), costs, claims, damages (including, without
limitation, punitive damages), expenses (including, without limitation,
attorneys', consultants' and experts' fees, court costs and amounts paid in
settlement of any claims or actions), fines, forfeitures or other civil,
administrative or criminal penalties, injunctive or other relief (whether or not
based upon personal injury, property damage, or contamination of, or adverse
effects upon, the environment, water tables or natural
6
resources), liabilities or losses ("Environmental Claims") arising from (a) a
breach of this prohibition by Tenant or any of the Tenant Parties or (b) the
presence, generation, production, use, storage, treatment, discharge, release,
spill or disposal of the Permitted Materials by Tenant or any of the Tenant
Parties.
(c) In the event that Hazardous Materials are discovered upon, in, or
under the Property, or any governmental agency or entity having jurisdiction
over the Property requires the removal of such Hazardous Materials, Tenant shall
be responsible for removing those Hazardous Materials arising out of or related
to the use or occupancy of the Property by Tenant or any of the Tenant Parties;
Tenant shall not be responsible for removing Hazardous Materials arising out of
or related to the use or occupancy of the Property by prior tenants or owners of
the Property except to the extent that Tenant or any of the Tenant Parties have
exacerbated such preexisting condition. Notwithstanding the foregoing, Tenant
shall not take any remedial action in or about the Property, nor enter into any
settlement agreement, consent decree or other compromise with respect to any
claims relating to any Hazardous Materials in any way connected with the
Property without first notifying Landlord of Tenant's intention to do so and
affording Landlord the opportunity to appear, intervene or otherwise
appropriately assert and protect Landlord's interest with respect thereto.
Tenant immediately shall notify Landlord in writing of: (i) any spill, release,
discharge or disposal of any Hazardous Material in, on or under the Property, or
any portion thereof of which Tenant has knowledge, (ii) any enforcement,
cleanup, removal or other governmental or regulatory action instituted,
contemplated, or threatened (if Tenant has notice thereof) pursuant to any
Hazardous Materials Laws of which Tenant has knowledge; (iii) any claim made or
threatened by any person against Tenant, any of the Tenant Parties or the
Property, relating to damage, contribution, cost recovery, compensation, loss or
injury resulting from or claimed to result from any Hazardous Materials of which
Tenant has knowledge; and (iv) any reports made to any governmental agency or
entity arising out of or in connection with any Hazardous Materials in, on,
under or about or removed from the Property of which Tenant has knowledge,
including any complaints, notices, warnings, reports or asserted violations in
connection therewith. Tenant also shall supply to Landlord as promptly as
possible, and in any event within five (5) business days after Tenant first
receives or sends the same, copies of all claims, reports, complaints, notices,
warnings or asserted violations relating in any way to the Property or the use
or occupancy thereof by Tenant or any of the Tenant Parties.
(d) The respective rights and obligations of Landlord and Tenant under
this Section 5.04 shall survive the expiration or earlier termination of this
Lease.
(e) Attached hereto as Exhibit "B" is a true and correct copy of the
Industrial Lease Hazardous Material Questionnaire completed by Tenant and
submitted to Landlord as a material inducement relied upon by Landlord in
entering into this Lease.
SECTION 5.05. SIGNS AND AUCTIONS. Tenant shall be permitted, at Tenant's
sole cost and expense, to install identification signage on the exterior of the
Property. Such signage shall conform to Landlord's sign criteria and plans
approved by Landlord, which approval shall not be unreasonably withheld or
delayed, and comply with all applicable laws, statutes, regulations, ordinances
and restrictions, including but not limited to, any permit requirements. Tenant
shall install and maintain said signage in good condition and repair at its sole
cost and expense during the entire Lease Term, as the same may be extended for
any Option Term in accordance herewith. Except as hereinabove mentioned, Tenant
shall not place, erect or maintain or cause to be placed, erected or maintained
on or to the roof or any exterior door, wall or window of the Property or any
other location in the Project. Any modifications to Tenant's signage, including
without limitation, the location, quality, design, style, lighting and size of
such sign, shall be consistent with applicable laws, rules and permits and shall
be subject to Landlord's prior written approval, in its reasonable discretion,
and at Tenant's sole cost and expense. Upon the expiration or earlier
termination of this Lease, Tenant shall be responsible, at its sole cost and
expense, for the removal of such signage and the repair of all damage to the
Property caused by such removal. Any signs, notices, logos, pictures, names or
advertisements which are installed and that have not been individually approved
by Landlord may be removed without notice by Landlord at the sole expense of
Tenant. Tenant shall not place any signs on the Property without Landlord's
prior written consent. Tenant shall not conduct or permit any auctions or
sheriff's sales at the Property.
SECTION 5.06. INDEMNITY. Tenant shall indemnify Landlord against and
hold Landlord harmless from any and all costs, claims or liability arising from:
(a) Tenant's use of the Property; (b) the conduct of Tenant's business or
anything else done or permitted by Tenant to be done in or about the Property,
including any contamination of the Property or any other property resulting from
the presence or use of Hazardous Materials caused or permitted by Tenant; (c)
any breach or default in the performance of Tenant's obligations under this
Lease; (d) any misrepresentation or breach of warranty by Tenant under this
Lease; or (e) other acts or omissions of Tenant. Tenant shall defend Landlord
against any such cost, claim or liability at Tenant's expense with counsel
reasonably acceptable to Landlord or, at Landlord's election, Tenant shall
reimburse Landlord for any reasonable legal fees or costs incurred by Landlord
in connection with any such claim. As a material part of the consideration to
Landlord, Tenant assumes all risk of damage to property or injury to persons in
or about the Property arising from any cause, and Tenant hereby waives all
claims in respect thereof against Landlord, except for any claim arising out of
Landlord's negligence or willful misconduct. As used in this Section, the term
"Tenant" shall include Tenant's employees, agents, contractors and invitees, if
applicable.
SECTION 5.07. LANDLORD'S ACCESS. Landlord or its agents may enter the
Property at all reasonable times to show the Property to potential buyers,
investors or Tenants or other parties; to do any other act or to inspect and
conduct tests in order to monitor Tenant's compliance with all applicable
environmental laws and all laws governing the presence and use of Hazardous
Materials; or for any other purpose Landlord deems necessary. Landlord shall
give Tenant one (1) business day prior notice of such entry, except in the case
of an emergency. Landlord may place customary "For Sale" or "For Lease" signs on
the Property.
SECTION 5.08. QUIET POSSESSION. If Tenant pays the rent and complies
with all other terms of this Lease, Tenant may occupy and enjoy the Property for
the full Lease Term, subject to the provisions of this Lease.
ARTICLE SIX: CONDITION OF PROPERTY; MAINTENANCE, REPAIRS AND ALTERATIONS
SECTION 6.01. EXISTING CONDITIONS. Tenant accepts the Property in its
condition as of the execution of this Lease, subject to all recorded matters,
laws, ordinances, and governmental regulations and orders. Except as provided
herein, Tenant acknowledges that neither Landlord nor any agent or employee of
Landlord has made any representation as to the condition of the Property or the
suitability of the Property for Tenant's intended use. Tenant represents and
warrants that Tenant has made its own inspection of and inquiry regarding the
condition of the Property and is not relying on any representations of Landlord,
its agents or employees, or any Broker with respect thereto. If Landlord or
Landlord's Broker has provided a Property Information Sheet or other Disclosure
Statement
7
regarding the Property, a copy is attached as an exhibit to this Lease.
Notwithstanding anything herein contained to the contrary, Landlord represents
to Tenant that the HVAC, electrical and plumbing systems, including the
electrical panel room and truck well sump, are in good working order as of the
date the Lease Term commences. In the event it is determined that this
representation has been violated, then, after written notice from Tenant,
Landlord shall promptly, at Landlord's sole cost and expense, rectify any such
violation. In the event Tenant does not give to Landlord written notice of the
violation of the foregoing representations within thirty (30) days from the date
that the Lease Term commences, the correction of same shall be the obligation of
the Tenant at Tenant's sole cost and expense (provided, that any work in
connection with such correction shall be done at the direction and with the
approval of Landlord).
SECTION 6.02. EXEMPTION OF LANDLORD FROM LIABILITY. Landlord shall not
be liable for any damage or injury to the person, business (or any loss of
income therefrom), goods, wares, merchandise or other property of Tenant,
Tenant's employees, invitees, customers or any other person in or about the
Property, whether such damage or injury is caused by or results from: (a) fire,
steam, electricity, water, gas or rain; (b) the breakage, leakage, obstruction
or other defects of pipes, sprinklers, wires, appliances, plumbing, air
conditioning or lighting fixtures or any other cause; (c) conditions arising in
or about the Property or upon other portions of the Project, or from other
sources or places; or (d) any act or omission of any other tenant of the
Project. Landlord shall not be liable for any such damage of injury even though
the cause of or the means of repairing such damage or injury are not accessible
to Tenant. The provisions of this Section 6.02 shall not, however, exempt
Landlord from liability for Landlord's negligence of willful misconduct.
SECTION 6.03. LANDLORD'S OBLIGATIONS. Subject to the provisions of
Article Seven (Damage or Destruction) and Article Eight (Condemnation), and
except for damage caused by any act or omission of Tenant, or Tenant's
employees, agent, contractors or invitees, Landlord, at its cost, shall be
responsible repairs to the foundation, roof, exterior windows and structural
portions of the improvements on the Property; provided, that Tenant agrees to
reimburse Landlord, within thirty (30) days after request, for all costs paid by
Landlord for roof maintenance as a Common Area Expense as provided for in
Section 4.05 above provided that Landlord may utilize any reserves collected
from Tenant under Section 4.05 and specifically allocated to such costs.
Landlord shall not be obligated to make any repairs under this Section 6.03
until a reasonable time after receipt of a written notice from Tenant of the
need for such repairs. Tenant waives the benefit of any present or future law
which might give Tenant the right to repair the Property at Landlord's expense
or to terminate this Lease because of the condition of the Property or
Landlord's failure to keep the Property in good order, condition or repair.
SECTION 6.04. TENANT'S OBLIGATIONS.
(a) Except as provided in Section 6.03, Article Seven (Damage or
Destruction) and Article Eight (Condemnation), Tenant, at its sole cost, shall
keep all portions of the Property (including nonstructural, interior, and, if
not otherwise maintained by Landlord at its election, any and all components of
electrical, mechanical, plumbing, heating, ventilating and air conditioning
systems and facilities (individually, a "System", collectively, the "Systems")
located on the Property and serving the Property only) in good order, condition
and repair (including interior repainting and refinishing, as needed). If
Landlord elects to maintain the Systems at the Property, Tenant shall pay or
reimburse Landlord for all costs Landlord incurs in connection with such
maintenance as Common Area Expenses as provided for in Section 4.05 above
provided that Landlord may utilize any reserves collected from Tenant under
Section 4.05 and specifically allocated to such costs. If any portion of the
Property or any System or equipment in the Property which Tenant is obligated to
maintain (or reimburse Landlord for the cost of maintenance in accordance
herewith) cannot be fully repaired or restored, Tenant shall promptly replace
such portion of the Property or System or equipment in the Property, regardless
of whether the benefit of such replacement extends beyond the Lease Term; but if
the benefit or useful life of such replacement, as determined by generally
accepted accounting principles, extends beyond the Lease Term (as the same may
be extended in accordance herewith) the cost of such replacement shall be paid
for by Landlord and prorated over such useful life, and Tenant shall be liable
and reimburse Landlord on a monthly basis only for that portion of the cost
which is applicable to the Lease Term (as the same may be extended). If
requested by Landlord, Tenant shall maintain a preventive maintenance contract
acceptable to Landlord providing for the regular inspection and maintenance of
the heating and air conditioning system by a licensed heating and air
conditioning contractor. Upon Landlord's request, Tenant shall provide Landlord
with a copy of the preventive maintenance contract, if applicable. If any part
of the Property or the Project is damaged by any act or omission of Tenant,
Tenant shall pay Landlord the cost of repairing or replacing such damaged
property, whether or not Landlord would otherwise be obligated to pay Landlord
the cost of maintaining or repairing or replacing such property. It is the
intention of Landlord and Tenant that at all times Tenant shall maintain the
portions of the Property which Tenant is obligated to maintain in a clean,
attractive and fully operative condition.
(b) Tenant shall fulfill all of Tenant's obligations under this Section
6.04 at Tenant's sole expense. If Tenant fails to maintain, repair or replace
the Property as required by this Section 6.04, Landlord may, upon ten (10) days'
prior notice to Tenant (except that no notice shall be required in the case of
an emergency), enter the Property and perform such maintenance or repair
(including replacement, as needed) on behalf of Tenant. In such case, Tenant
shall reimburse Landlord for all costs incurred in performing such maintenance
or repair immediately upon demand.
SECTION 6.05. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS.
(a) Tenant shall not make any alterations, additions, or improvements to
the Property without Landlord's prior written consent, except for non-structural
alterations which do not exceed Twenty Thousand and No/100 Dollars ($20,000.00)
in cost cumulatively over the Lease Term and which are not visible from the
outside of and which do not affect any System in the building of which the
Property is a part. Landlord may require Tenant to provide demolition and/or
lien and completion bonds in form and amount satisfactory to Landlord. Tenant
shall promptly remove any alterations, additions or improvements constructed in
violation of this Paragraph 6.05(a) upon Landlord's written request. All
alterations, additions, and improvements shall be done in a good and workmanlike
manner, in conformity with all applicable laws and regulations, and by a
contractor approved by Landlord. Upon completion of any such work, Tenant shall
provide Landlord with "as built" plans, copies of all construction contracts,
and proof of payment for all labor and materials.
(b) Tenant shall pay when due all claims for labor and materials
furnished to the Property. Tenant shall give Landlord at least twenty (20) days'
prior written notice of the commencement of any work on the Property, regardless
of whether Landlord's consent to such work is required. Landlord may elect to
record and post notices of non-responsibility on the Property.
SECTION 6.06. CONDITION UPON TERMINATION. Upon the termination of this
Lease, Tenant shall surrender the Property to Landlord, broom clean and in the
same condition as received except for ordinary wear and tear which Tenant was
not otherwise obligated to remedy under any provision of this Lease. However,
Tenant shall not be obligated to repair any damage which Landlord
8
is required to repair under Article Seven (Damage or Destruction). In addition,
Tenant shall complete the moveout responsibilities ("Tenant's Moveout
Responsibilities") set forth on Exhibit "C" attached hereto, and Landlord may
require Tenant to remove any alterations, additions or improvements (whether or
not made with Landlord's consent) prior to the expiration of this Lease and to
restore the Property to its prior condition, all at Tenant's expense. All
alterations, additions and improvements which Landlord has not required Tenant
to remove shall become Landlord's property and shall be surrendered to Landlord
upon the expiration or earlier termination of this Lease, except that Tenant may
remove any of Tenant's trade fixtures, personal property, machinery or equipment
which can be removed without damage to the Property. Tenant shall repair, at
Tenant's expense, any damage to the Property caused by the removal of any such
trade fixtures, personal property, machinery or equipment. In no event, however,
shall Tenant remove any of the following materials or equipment (which shall be
deemed Landlord's property) without Landlord's prior written consent: any power
wiring or power panels; lighting or lighting fixtures; wall coverings; drapes,
blinds or other window coverings; carpets or other floor coverings; heaters, air
conditioners or any other heating or air conditioning equipment; fencing or
security gates; or other similar building operating equipment and decorations.
If Tenant requests in writing that Landlord do so, Landlord shall notify Tenant
at the time Landlord approves any alteration, addition or improvement whether or
not Tenant shall be required to remove the same upon termination and such notice
shall be binding upon the parties.
ARTICLE SEVEN: DAMAGE OR DESTRUCTION
SECTION 7.01. PARTIAL DAMAGE TO PROPERTY.
(a) Tenant shall notify Landlord in writing immediately upon the
occurrence of any damage to the Property. If the Property is only partially
damaged (i.e., less than fifty percent (50%) of the Property is untenantable as
a result of such damage or less than fifty percent (50%) of Tenant's operations
are materially impaired) and if the proceeds received by Landlord from the
insurance policies described in Paragraph 4.04(b) are sufficient to pay for the
necessary repairs, this Lease shall remain in effect and Landlord shall repair
the damage as soon as reasonably possible. Landlord may elect (but is not
required) to repair any damage to Tenant's fixtures, equipment, or improvements
(unless Landlord obtained insurance for such improvements pursuant to Section
4.04(b) above and sufficient proceeds are available therefrom for such repair),
and Tenant shall pay Landlord the "deductible" amount under Landlord's insurance
policies as provided in Section 4.04(b).
(b) If the insurance proceeds received by Landlord are not sufficient to
pay the entire cost of repair, or if the cause of the damage is not covered by
the insurance policies which Landlord maintains under Paragraph 4.04(b),
Landlord may elect either to (i) repair the damage as soon as reasonably
possible, in which case this Lease shall remain in full force and effect, or
(ii) terminate this Lease as of the date the damage occurred. Landlord shall
notify Tenant within thirty (30) days after receipt of notice of the occurrence
of the damage whether Landlord elects to repair the damage or terminate this
Lease. If Landlord elects to repair the damage, Tenant shall pay Landlord the
"deductible amount" (if any) under Landlord's insurance policies as provided in
Section 4.04(b) and, if the damage was due to an act or omission of Tenant, or
Tenant's employees, agents, contractors or invitees, the difference between the
actual cost of repair and any insurance proceeds received by Landlord. If
Landlord elects to terminate this Lease, Tenant may elect to continue this Lease
in full force and effect, in which case Tenant shall repair any damage to the
Property and any building in which the Property is located. Tenant shall pay the
cost of such repairs, except that, subject to the terms of any deed of trust
encumbering the Property, upon satisfactory completion of such repairs, Landlord
shall deliver to Tenant any insurance proceeds received by Landlord for the
damage repaired by Tenant. Tenant shall give Landlord written notice of such
election within ten (10) days after receiving Landlord's termination notice.
(c) If the damage to the Property occurs during the last six (6) months
of this Lease Term and such damage will require more than thirty (30) days to
repair, either Landlord or Tenant may elect to terminate this Lease as of the
date the damage occurred, regardless of the sufficiency of any insurance
proceeds. The party electing to terminate this Lease shall give written
notification to the other party of such election within thirty (30) days after
Tenant's notice to Landlord of the occurrence of the damage.
SECTION 7.02. SUBSTANTIAL OR TOTAL DESTRUCTION. If the Property is
substantially or totally destroyed by any cause whatsoever (i.e., the damage to
the Property is greater than partial damage as described in Section 7.01), and
regardless of whether Landlord receives any insurance proceeds, this Lease shall
terminate as of the date the destruction occurred. Notwithstanding the preceding
sentence, if the Property can be rebuilt within twelve (12) months after the
date of destruction, Landlord may elect to rebuild the Property at Landlord's
own expense, in which case this Lease shall remain in full force and effect.
Landlord shall notify Tenant of such election within thirty (30) days after
Tenant's notice of the occurrence of total or substantial destruction. If
Landlord so elects, Landlord shall rebuild the Property at Landlord's sole
expense, except that if the destruction was caused by an act or omission of
Tenant, Tenant shall pay Landlord the difference between the actual cost of
rebuilding and any insurance proceeds received by Landlord, including the
"deductible" amount (if any) under Landlord's insurance policies as provided in
Section 4.04(b).
SECTION 7.03. TEMPORARY REDUCTION OF RENT. If the Property is destroyed
or damaged and Landlord or Tenant repairs or restores the Property pursuant to
the provisions of this Article Seven, any rent payable during the period of such
damage, repair and/or restoration shall be reduced according to the degree, if
any, to which Tenant's use of the Property is impaired. Except for such possible
reduction in rent, Tenant shall not be entitled to any compensation, reduction,
or reimbursement from Landlord as a result of any damage, destruction, repair,
or restoration of or to the Property.
SECTION 7.04. WAIVER. Tenant waives the protection of any statute, code
or judicial decision which grants a tenant the right to terminate a lease in the
event of the substantial or total destruction of the leased property. Tenant
agrees that the provisions of Section 7.02 above shall govern the rights and
obligations of Landlord and Tenant in the event of any substantial or total
destruction of the Property.
ARTICLE EIGHT: CONDEMNATION
If all or any portion of the Property is taken under the power of
eminent domain or sold under the threat of that power (all of which are called
"Condemnation"), this Lease shall terminate as to the part taken or sold on the
date the condemning authority takes title or possession, whichever occurs first.
If more than twenty percent (20%) of the floor area of the building in which the
Property is located, or which is located on the Property, is taken, either
Landlord or Tenant may terminate this Lease as of the date the condemning
authority takes title or possession, by delivering written notice to the other
within ten (10) days after receipt of written notice of such taking (or in the
absence of such notice, within ten (10) days after the condemning authority
takes title or possession).
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If neither Landlord nor Tenant terminates this Lease, this Lease shall remain in
effect as to the portion of the Property not taken, except that the Base Rent
and Additional Rent shall be reduced in proportion to the reduction in the floor
area of the Property. Any Condemnation award of payment shall be distributed in
the following order: (a) first, to any ground lessor, mortgagee or beneficiary
under a dead of trust encumbering the Property, the amount of its interest in
the Property; (b) second, to Tenant, only the amount of any award specifically
designated for loss of or damage to Tenant's trade fixtures or removable
personal property; and (c) third, to Landlord, the remainder of such award,
whether as compensation for reduction in the value of the leasehold, the taking
of the fee, or otherwise. If this Lease is not terminated, Landlord shall repair
any damage to the Property caused by the Condemnation, except that Landlord
shall not be obligated to repair any damage for which Tenant has been reimbursed
by the condemning authority. If the severance damages received by Landlord are
not sufficient to pay for such repair, Landlord shall have the right to either
terminate this Lease or make such repair at Landlord's expense. Landlord and
Tenant waive the protection of California Code of Civil Procedure Section
1265.130 allowing either party to petition the Superior Court to terminate this
Lease in the event of a partial taking of the Property by Condemnation.
ARTICLE NINE: ASSIGNMENT AND SUBLETTING
SECTION 9.01. LANDLORD'S CONSENT REQUIRED. No portion of the Property or
of Tenant's interest in this Lease may be acquired by any other person or
entity, whether by sale, assignment, mortgage, sublease, transfer, operation of
law, or act of Tenant, without Landlord's prior written consent, except as
provided in Section 9.02 below. Landlord has the right to grant or withhold its
consent as provided in Section 9.05 below. Any attempted transfer without
consent shall be void and shall constitute a non-curable breach of this Lease.
If Tenant is a partnership or limited liability company, any cumulative transfer
of more than twenty percent (20%) of the partnership or membership interests
shall require Landlord's consent. If Tenant is a corporation, any change in the
ownership of a controlling interest of the voting stock of the corporation shall
require Landlord's consent.
SECTION 9.02. TENANT AFFILIATE. Tenant may assign this Lease or sublease
the Property, without Landlord's consent, to any corporation which controls, is
controlled by or is under common control with Tenant, or to any corporation
resulting from the merger of or consolidation with Tenant, provided that the
successor entity's then applicable net worth is equal to or greater than that of
Tenant as of the date one day prior to the assignment or sublease ("Tenant's
Affiliate"). In such case, any Tenant's Affiliate shall assume in writing all of
Tenant's obligations under this Lease.
SECTION 9.03. NO RELEASE OF TENANT. No transfer permitted by this
Article Nine, whether with or without Landlord's consent, shall release Tenant
or change Tenant's primary liability to pay the rent and to perform all other
obligations of Tenant under this Lease. Landlord's acceptance of rent from any
other person is not a waiver of any provision of this Article Nine. Consent to
one transfer is not a consent to any subsequent transfer. If Tenant's transferee
defaults under this Lease, Landlord may proceed directly against Tenant without
pursuing remedies against the transferee. Landlord may consent to subsequent
assignments or modifications of this Lease by Tenant's transferee, without
notifying Tenant or obtaining its consent. Such action shall not relieve
Tenant's liability under this Lease.
SECTION 9.04. OFFER TO TERMINATE. If Tenant desires to assign this Lease
or sublease the Property, Tenant shall have the right to offer, in writing, to
terminate this Lease as of a date specified in the offer. If Landlord elects in
writing to accept the offer to terminate within twenty (20) days after notice of
the offer, this Lease shall terminate as of the date specified and all the terms
and provisions of this Lease governing termination shall apply. If Landlord does
not so elect, this Lease shall continue in effect until otherwise terminated and
the provisions of Section 9.05 with respect to any proposed transfer shall
continue to apply.
SECTION 9.05. LANDLORD'S CONSENT.
(a) Tenant's request for consent to any such sublease, assignment or
other transfer shall set forth in writing the details of the proposed sublease,
assignment or other transfer, including the name, business and financial
condition of the prospective transferee (including copies of current financial
statements of the prospective transferee), financial details of the proposed
transaction (e.g., the term of and the rent, security deposit and any other
consideration payable under such proposed assignment, sublease or transfer), and
any other information Landlord reasonably may request. Tenant shall reimburse
Landlord for all out of pocket expenses, including reasonable attorneys' fees in
accordance with Section 12.02 below, incurred in connection with any proposed
assignment or subletting hereunder, not to exceed $1,500. Landlord shall not
unreasonably withhold its consent to Tenant's request for consent to any
sublease, assignment of other transfer. Landlord and Tenant hereby agree that,
in determining whether to grant or withhold consent to such proposed sublease,
assignment or other transfer, Landlord may consider, without limitation, the
following factors, which Landlord and Tenant acknowledge and agree are
reasonable: (i) the business of the proposed assignee, sublessee or transferee
and the proposed use of the Property; (ii) the financial strength and the
business reputation of the proposed assignee, sublessee or transferee; (iii) the
proposed use, storage, treatment, generation or production of any Hazardous
Materials by the proposed assignee, sublessee or transferee; and (iv) Tenant's
compliance with all of its obligations under this Lease. Notwithstanding any
provisions of this Lease, or any present or future statute, law, rule or
ordinance, to the contrary, Landlord and Tenant hereby expressly agree that if a
court of competent jurisdiction determines that Landlord unreasonably withheld
consent to a proposed sublease, assignment or other transfer by Tenant, then
Tenant's sole and exclusive remedy for such breach by Landlord shall be limited
to termination of this Lease as of the date of such court determination, and
Tenant hereby expressly waives the right to recover any monetary damages of
whatever kind for such breach.
(b) If Tenant assigns or subleases, the following shall apply:
(i) Tenant shall pay to Landlord as Additional Rent under this
Lease the Landlord's Share (stated in Section 1.13) of the Profit
(defined below) on such transaction as and when received by Tenant,
unless Landlord gives written notice to Tenant and the assignee or
subtenant that Landlord's Share shall be paid by the assignee or
subtenant to Landlord directly. The "Profit" means (A) all amounts paid
to Tenant for such assignment or sublease, including "key" money,
monthly rent in excess of the monthly rent payable under this Lease, and
all fees and other consideration paid for the assignment or sublease,
including fees under any collateral agreements, less (B) reasonable
costs and expenses directly incurred by Tenant in connection with the
execution and performance of such assignment or sublease for real estate
broker's commissions and renovation or construction of tenant
improvements required under such assignment or sublease. Tenant is
entitled to recover such reasonable costs and expenses before Tenant is
obligated to pay the Landlord's Share to Landlord. The Profit in the
case of a sublease of less than all the Property is the rent allocable
to the subleased space as a percentage on a square footage basis.
Notwithstanding anything to the contrary contained in this Lease, Tenant
shall not be required to pay to Landlord any portion of any Profit
received by Tenant in connection with an assignment or sublease to
Tenant's Affiliate.
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(ii) Tenant shall provide Landlord a written statement
certifying all amounts to be paid from any assignment or sublease of the
Property within thirty (30) days after the transaction documentation is
signed, and Landlord may inspect Tenant's books and records to verify
the accuracy of such statement. On written request, Tenant shall
promptly furnish to Landlord copies of all the transaction
documentation, all of which shall be certified by Tenant to be complete,
true and correct. Landlord's receipt of Landlord's Share shall not be a
consent to any further assignment or subletting. The breach of Tenant's
obligations under this Paragraph 9.05(b) shall be a material default of
this Lease.
SECTION 9.06. NO MERGER. No merger shall result from Tenant's sublease
of the Property under this Article Nine, Tenant's surrender of this Lease or the
termination of this Lease in any other manner. In any such event, Landlord may
terminate any or all subtenancies or succeed to the interest of Tenant as
sublandlord under any or all subtenancies.
ARTICLE TEN: DEFAULTS; REMEDIES
SECTION 10.01. COVENANTS AND CONDITIONS. Tenant's performance of each of
Tenant's obligations under this Lease is a condition as well as a covenant.
Tenant's right to continue in possession of the Property is conditioned upon
such performance. Time is of the essence in the performance of all covenants and
conditions.
SECTION 10.02. DEFAULTS. Tenant shall be in material default under this
Lease:
(a) If Tenant abandons the Property and fails to pay rent or any other
amount due under this Lease or perform any of Tenant's non-monetary obligations
under this Lease or if Tenant's vacation of the Property results in the
cancellation of any insurance described in Section 4.04;
(b) If Tenant fails to pay rent or any other charge within three (3)
days after the date due;
(c) If Tenant fails to perform any of Tenant's non-monetary obligations
under this Lease for a period of thirty (30) days after written notice from
Landlord; provided that if more than ten (10) days are required to complete such
performance, Tenant shall not be in default if Tenant commences such performance
within the ten (10) day period and thereafter diligently pursues its completion.
However, Landlord shall not be required to give such notice if Tenant's failure
to perform constitutes a non-curable breach of this Lease. The notice required
by this Paragraph is intended to satisfy any and all notice requirements imposed
by law on Landlord and is not in addition to any such requirement.
(d) (i) If Tenant makes a general assignment or general arrangement for
the benefit of creditors; (ii) if a petition for adjudication of bankruptcy or
for reorganization or rearrangement is filed by or against Tenant and is not
dismissed within sixty (60) days; (iii) if a trustee or receiver is appointed to
take possession of substantially all of Tenant's assets located at the Property
or of Tenant's interest in this Lease and possession is not restored to Tenant
within sixty (60) days; or (iv) if substantially all of Tenant's assets located
at the Property or of Tenant's interest in this Lease is subjected to
attachment, execution or other judicial seizure which is not discharged within
thirty (30) days. If a court of competent jurisdiction determines that any of
the acts described in this subparagraph (d) is not a default under this Lease,
and a trustee is appointed to take possession (or if Tenant remains a debtor in
possession) and such trustee or Tenant transfers Tenant's interest hereunder,
then Landlord shall receive, as Additional Rent, the excess, if any, of the rent
(or any other consideration) paid in connection with such assignment or sublease
over the rent payable by Tenant under this Lease.
(e) If any guarantor of this Lease revokes or otherwise terminates, or
purports to revoke or otherwise terminate, any guaranty of all or any portion of
Tenant's obligations under this Lease. Unless otherwise expressly provided, no
guaranty of this Lease is revocable.
SECTION 10.03. REMEDIES. On the occurrence of any material default by
Tenant, Landlord may, at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have:
(a) Terminate Tenant's right to possession of the Property by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Property to Landlord. In such event,
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default, including (i) the worth at the time of
the award of the unpaid Base Rent, Additional Rent and other charges which
Landlord had earned at the time of the termination, (ii) the worth at the time
of the award of the amount by which the unpaid Base Rent, Additional Rent and
other charges which Landlord would have earned after termination until the time
of the award exceeds the amount of such rental loss that Tenant proves Landlord
could have reasonably avoided; (iii) the worth at the time of the award of the
amount by which the unpaid Base Rent, Additional Rent and other charges which
Tenant would have paid for the balance of the Lease Term after the time of award
exceeds the amount of such rental loss that Tenant proves Landlord could have
reasonably avoided; and (iv) any other amount reasonably necessary to compensate
Landlord for all the detriment proximately caused by Tenant's failure to perform
its obligations under this Lease or which in the ordinary course of things would
be likely to result therefrom, including, but not limited to, any costs or
expenses Landlord incurs in maintaining or preserving the Property after such
default, the cost of recovering possession of the Property, expenses of
reletting, including necessary renovation or alteration of the Property.
Landlord's reasonable attorneys' fees incurred in connection therewith, and any
real estate commission paid or payable. As used in subparts (i) and (ii) above,
the "worth at the time of the award" is computed by allowing interest on unpaid
amounts at the rate of fifteen percent (15%) per annum, or such lesser amount as
may then be the maximum lawful rate. As used in subpart (iii) above, the "worth
at the time of the award" is computed by discounting such amount at the discount
rate of the Federal Reserve Bank of San Francisco at the time of the award, plus
one percent (1%). If Tenant has abandoned the Property, Landlord shall have the
option of (i) retaking possession of the Property and recovering from Tenant the
amount specified in this Paragraph 10.03(a), or (ii) proceeding under Paragraph
10.03(b);
(b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant has abandoned the Property. In
such event, Landlord shall be entitled to enforce all Landlord's rights and
remedies under this Lease, including the right to recover the rent as it becomes
due;
(c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state in which the Property is
located.
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SECTION 10.04. INTENTIONALLY DELETED.
SECTION 10.05. AUTOMATIC TERMINATION. Notwithstanding any other term or
provision hereof to the contrary, this Lease shall terminate on the occurrence
of any act which affirms the Landlord's intention to terminate this Lease as
provided in Section 10.03 hereof, including the filing of an unlawful detainer
action against Tenant. On such termination, Landlord's damages for default shall
include all costs and fees, including reasonable attorneys' fees that Landlord
incurs in connection with the filing, commencement, pursuing and/or defending of
any action in any bankruptcy court or other court with respect to this Lease,
the obtaining of relief from any stay in bankruptcy restraining any action to
evict Tenant; or the pursuing of any action with respect to Landlord's right to
possession of the Property. All such damages suffered (apart from Base Rent and
other rent payable hereunder) shall constitute pecuniary damages which must be
reimbursed to Landlord prior to assumption of this Lease by Tenant or any
successor to Tenant in any bankruptcy or other proceeding.
SECTION 10.06. CUMULATIVE REMEDIES. Landlord's exercise of any right or
remedy shall not prevent it from exercising any other right or remedy.
ARTICLE ELEVEN: PROTECTION OF LENDERS
SECTION 11.01. SUBORDINATION. This Lease shall be subordinate to any
existing ground lease, deed of trust or mortgage, and Landlord shall have the
right to subordinate this Lease to any ground lease, deed of trust or mortgage
hereafter encumbering the Property, any advances made on the security thereof
and any renewals, modifications, consolidations, replacements or extensions
thereof, whenever made or recorded. Tenant shall cooperate with Landlord and any
lender which is acquiring a security interest in the Property or this Lease.
Tenant shall execute such further documents and assurances as such lender may
require, provided that Tenant's obligations under this Lease shall not be
increased in any material way (the performance of ministerial acts shall not be
deemed material), and Tenant shall not be deprived of its rights under this
Lease. Tenant's right to quiet possession of the Property during the Lease Term
shall not be disturbed by any future beneficiary under a deed of trust or
mortgagee under a mortgage if Tenant pays the rent and performs all of Tenant's
obligations under this Lease and is not otherwise in default. If any ground
lessor, beneficiary or mortgagee elects to have this Lease prior to the lien of
its ground lease, deed of trust or mortgage and gives written notice thereof to
Tenant, this Lease shall be deemed prior to such ground lease, deed of trust or
mortgage whether this Lease is dated prior or subsequent to the date of said
ground lease, deed of trust or mortgage or the date of recording thereof.
SECTION 11.02. ATTORNMENT. If Landlord's interest in the Property is
acquired by any ground lessor, beneficiary under a deed of trust, mortgagee, or
purchaser at a foreclosure sale, then at such person's or entity's election,
Tenant shall attorn to the transferee of or successor to Landlord's interest in
the Property and recognize such transferee or successor as Landlord under this
Lease. Tenant waives the protection of any statute or rule of law which gives or
purports to give Tenant any right to terminate this Lease or surrender
possession of the Property upon the transfer of Landlord's interest.
SECTION 11.03. SIGNING OF DOCUMENTS. Tenant shall sign and deliver any
instrument or documents necessary or appropriate to evidence any such attornment
or subordination or agreement to do so. If Tenant fails to do so within ten (10)
days after written request, Tenant hereby makes, constitutes and irrevocably
appoints Landlord, or any transferee or successor of Landlord, the
attorney-in-fact of Tenant to execute and deliver any such instrument or
document.
SECTION 11.04. ESTOPPEL CERTIFICATES.
(a) Upon Landlord's written request, Tenant shall execute, acknowledge
and deliver to Landlord a written statement certifying: (i) that none of the
terms or provisions of this Lease have been changed (or if they have been
changed, stating how they have been changed); (ii) that this Lease has not been
cancelled or terminated; (iii) the last date of payment of the Base Rent and
other charges and the time period covered by such payment; (iv) that, to
Tenant's knowledge, Landlord is not in default under this Lease (or, if Landlord
is claimed to be in default, stating why); and (v) such other information with
respect to Tenant or this Lease as Landlord may reasonably request or which any
prospective purchaser or encumbrancer of the Property may require. Tenant shall
deliver such statement to Landlord within ten (10) days after Landlord's written
request. Landlord may give any such statement by Tenant to any prospective
purchaser or encumbrancer of the Property. Such purchaser or encumbrancer may
rely conclusively upon such statement as true and correct.
(b) If Tenant does not deliver such statement to Landlord within such
ten (10) day period, Landlord, and any prospective purchaser or encumbrancer,
may conclusively presume and rely upon the following facts: (i) that the terms
and provisions of this Lease have not been changed except as otherwise
represented by Landlord; (ii) that this Lease has not been cancelled or
terminated except as otherwise represented by Landlord; (iii) that not more than
one month's Base Rent or other charges have been paid in advance; and (iv) that
Landlord is not in default under this Lease. In such event, Tenant shall be
estopped from denying the truth of such facts.
Section 11.05. TENANT'S FINANCIAL CONDITION. Within ten (10) days after
written request from Landlord, Tenant shall deliver to Landlord the most recent
10K and 10Q statements of Tenant and Guarantor to verify the net worth of Tenant
or Guarantor or such financial statements as Landlord may reasonably require to
verify the net work of any assignee or subtenant of Tenant. In addition, Tenant
shall deliver to any lender designated by Landlord Tenant's most recent 10K and
10Q statements to facilitate the financing or refinancing of the Property. All
financial statements shall be confidential and shall be used only for the
purposes set forth in this Lease.
ARTICLE TWELVE: LEGAL COSTS
SECTION 12.01. LEGAL PROCEEDINGS. If Tenant or Landlord shall be in
breach or default under this Lease, such party (the "Defaulting Party") shall
reimburse the other party (the "Nondefaulting Party") upon demand for any
reasonable costs or expenses that the Nondefaulting Party incurs in connection
with any breach or default of the Defaulting Party under this Lease, whether or
not suit is commenced or judgment entered. Such costs shall include legal fees
and costs incurred for the negotiation of a settlement, enforcement of rights or
otherwise. Furthermore, if any action for breach of or to enforce the provisions
of this Lease is commenced, the court in such action shall award to the party in
whose favor a judgment is entered, a reasonable sum as attorneys' fees and
costs. The losing party in such action shall pay such attorneys' fees and costs.
Tenant shall also indemnify Landlord against and hold Landlord harmless from all
costs, expenses, demands and liability Landlord may incur if Landlord becomes or
is made a party to any claim or
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action (a) instituted by Tenant against any third party, or by any third party
against Tenant, or by or against any person holding any interest under or using
the Property by license of or agreement with Tenant; (b) for foreclosure of any
lien for labor or material furnished to or for Tenant or such other person; (c)
otherwise arising out of or resulting from any act or transaction of Tenant or
such other person; or (d) necessary to protect Landlord's interest under this
Lease in a bankruptcy proceeding, or other proceeding under Title 11 of the
United States Code, as amended. Tenant shall defend Landlord against any such
claim or action at Tenant's expense with counsel reasonably acceptable to
Landlord or, at Landlord's election, Tenant shall reimburse Landlord for any
reasonable legal fees or costs Landlord incurs in any such claim or action.
SECTION 12.02. LANDLORD'S CONSENT. Tenant shall pay Landlord's
reasonable attorneys' fees incurred in connection with Tenant's request for
Landlord's consent under Article Nine (Assignment and Subletting) (not to exceed
$1,500), or in connection with any other act which Tenant proposes to do and
which requires Landlord's consent.
ARTICLE THIRTEEN: MISCELLANEOUS PROVISIONS
SECTION 13.01. NON-DISCRIMINATION. Tenant promises, and it is a
condition to the continuance of this Lease, that there will be no discrimination
against, or segregation of, any person of group of persons on the basis of race,
color, sex, creed, national origin or ancestry in the leasing, subleasing,
transferring occupancy, tenure or use of the Property or any portion thereof.
SECTION 13.02. LANDLORD'S LIABILITY; CERTAIN DUTIES.
(a) As used in this Lease, the term "Landlord" means only the current
owner or owners of the fee title to the Property or Project or the leasehold
estate under a ground lease of the Property or Project at the time in question.
Each Landlord is obligated to perform the obligations of Landlord under this
Lease only during the time such Landlord owns such interest or title. Any
Landlord who transfers its title or interest is relieved of all liability with
respect to the obligations of Landlord under this Lease to be performed on or
after the date of transfer. However, each Landlord shall deliver to its
transferee all funds that Tenant previously paid if such funds have not yet been
applied under the terms of this Lease.
(b) Tenant shall give written notice of any failure by Landlord to
perform any of its obligations under this Lease to Landlord and to any ground
lessor, mortgagee or beneficiary under any deed of trust encumbering the
Property whose name and address have been furnished to Tenant in writing.
Landlord shall not be in default under this Lease unless Landlord (or such
ground lessor, mortgagee or beneficiary) fails to cure such non-performance
within thirty (30) days after receipt of Tenant's notice. However, if such
non-performance reasonably requires more than thirty (30) days to cure, Landlord
shall not be in default if such cure is commenced within such thirty (30) day
period and thereafter diligently pursued to completion.
(c) Notwithstanding any term or provision herein to the contrary, the
liability of Landlord for the performance of its duties and obligations under
this Lease is limited to Landlord's interest in the Property and the Project,
and neither the Landlord nor its partners, shareholders, officers or other
principals shall have any personal liability under this Lease.
SECTION 13.03. SEVERABILITY. A determination by a court of competent
jurisdiction that any provision of this Lease or any part thereof is illegal or
unenforceable shall not cancel or invalidate the remainder of such provision or
this Lease, which shall remain in full force and effect.
SECTION 13.04. INTERPRETATION. The captions of the Articles or Sections
of this Lease are to assist the parties in reading this Lease and are not a part
of the terms or provisions of this Lease. Whenever required by the context of
this Lease, the singular shall include the plural and the plural shall include
the singular. The masculine, feminine and neuter genders shall each include the
other. In any provision relating to the conduct, acts or omissions of Tenant,
the term "Tenant" shall include Tenant's agents, employees, contractors,
invitees, successors or others using the Property with Tenant's expressed or
implied permission.
SECTION 13.05. INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS. This
Lease is the only agreement between the parties pertaining to the lease of the
Property and no other agreements are effective. All amendments to this Lease
shall be in writing and signed by all parties. Any other attempted amendment
shall be void.
SECTION 13.06. NOTICES. All notices required or permitted under this
Lease shall be in writing and shall be personally delivered, sent by a
nationally recognized overnight delivery service such as Federal Express, or
sent by certified mail, return receipt requested, postage prepaid. Notices to
Tenant shall be delivered to the address specified in Section 1.03 above.
Notices to Landlord shall be delivered to the address specified in Section 1.02
above. All notices shall be effective upon delivery. Either party may change its
notice address upon written notice to the other party.
SECTION 13 07. WAIVERS. All waivers must be in writing and signed by
the waiving party. Landlord's failure to enforce any provision of this Lease or
its acceptance of rent shall not be a waiver and shall not prevent Landlord from
enforcing that provision or any other provision of this Lease in the future. No
statement on a payment check from Tenant or in a letter accompanying a payment
check shall be binding on Landlord. Landlord may, with or without notice to
Tenant, negotiate such check without being bound to the conditions of such
statement.
SECTION 13.08. NO RECORDATION. Tenant shall not record this Lease
without prior written consent from Landlord. If Landlord consents to such
recording, Tenant shall pay all taxes and recording fees in connection
therewith.
SECTION 13.09. BINDING EFFECT; CHOICE OF LAW. This Lease binds any
party who legally acquires any rights or interest in this Lease from Landlord or
Tenant. However, Landlord shall have no obligation to Tenant's successor unless
the rights or interests of Tenant's successor are acquired in accordance with
the terms of this Lease. The laws of the state in which the Property is located
shall govern this Lease.
SECTION 13.10. CORPORATE AUTHORITY; PARTNERSHIP OR LIMITED LIABILITY
COMPANY AUTHORITY. If Tenant is a corporation, each person signing this Lease on
behalf of Tenant represents and warrants that he or she has full authority to do
so and that this Lease binds the corporation. Upon Landlord's request, Tenant
shall deliver to Landlord a certified copy of a resolution of Tenant's Board of
Directors authorizing the execution of this Lease or other evidence of such
authority reasonably acceptable to Landlord. If Tenant is
13
a partnership or limited liability company, each person or entity signing this
Lease for Tenant represents and warrants that he, she or it is a general partner
of the partnership or member of the limited liability company, as applicable,
that he, she or it has full authority to sign for the partnership or limited
liability company, as applicable, and that this Lease binds the partnership and
all general partners of the partnership or limited liability company, as
applicable. Tenant shall given written notice to Landlord of any general
partner's or member's withdrawal or addition. Within thirty (30) days after this
Lease is signed, Tenant shall deliver to Landlord a copy of Tenant's recorded
statement of partnership or certificate of limited partnership or articles of
organization, as applicable.
SECTION 13.11. JOINT AND SEVERAL LIABILITY. All parties signing this
Lease as Tenant shall be jointly and severally liable for all obligations of
Tenant.
SECTION 13.12. FORCE MAJEURE. If Landlord or Tenant cannot perform any
of their obligations due to events beyond their control, the time provided for
performing such obligations shall be extended by a period of time equal to the
duration of such events; provided, however, that nothing in this Section shall
excuse Tenant from the payment of rent and any other charges required to be paid
hereunder, except as otherwise expressly provided in this Lease. Events beyond
their control include, but are not limited to, acts of God, war, civil
commotion, labor disputes, strikes, fire, flood or other casualty, shortages of
labor or material, government regulation or restriction and weather conditions.
SECTION 13.13. EXECUTION OF LEASE. This Lease may be executed in
counterparts and, when all counterpart documents are executed, the counterparts
shall constitute a single binding instrument. Landlord's delivery of this Lease
to Tenant shall not be deemed to be an offer to lease and shall not be binding
upon either party until executed and delivered by both parties.
SECTION 13.14. SURVIVAL. All representations and warranties of Landlord
and Tenant shall survive the termination of this Lease.
ARTICLE FOURTEEN: BROKERS
Except with respect to the brokers named in Section 1.09 of this Lease,
Tenant hereby represents and warrants to Landlord that it has not entered into
any agreement or incurred any obligation which might result in the obligation to
pay any brokerage commission, finder's fee or other compensation with respect to
this Lease, and Tenant agrees to indemnify and hold Landlord harmless from and
against any losses, damages, costs or expenses (including, without limitation,
attorney's fees) incurred by the other by reason of any breach or inaccuracy of
such representation or warranty.
ARTICLE FIFTEEN: OTHER PROVISIONS
SECTION 15.01. CONFIDENTIALITY. Tenant agrees that except as required
by law, it shall keep confidential, and shall not disclose to any third party
(with the exception of disclosure, on a confidential basis, to Tenant's
attorneys, accountants, and insurance advisors, potential assignees, sublessees,
investors, lenders and purchasers and their respective attorneys, accountants
and insurance advisors), the terms, provisions and contents of this Lease, or
any information relating to this Lease.
SECTION 15.02. LANDLORD'S LIABILITY. Notwithstanding anything to the
contrary contained in the Lease, Tenant agrees that its sole and exclusive
remedy shall be against Landlord's interest in the Project and that the
obligations of Landlord under the Lease do not constitute personal obligations
of the individual partners, whether general or limited, directors, officers,
shareholders or trustees of Landlord, and Tenant shall not seek recourse against
the individual partners, directors, officers, shareholders or trustees of
Landlord or any of their personal assets for satisfaction of any liability with
respect to the Lease. Notwithstanding anything to the contrary contained in this
Lease, in no event shall Landlord be liable under any circumstances for any
consequential damages, including without limitation, lost profits.
ARTICLE SIXTEEN: TENANT IMPROVEMENTS
Subject to the terms and conditions set forth in this Article Sixteen,
Landlord will provide Tenant with an improvement allowance (the "Tenant
Improvement Allowance") of up to Two and 50/100 Dollars ($2.50) per square foot
of the Property, for the costs relating to the initial design and construction
of permanently affixed improvements (the "Tenant Improvements") to the Property
desired to be made by Tenant. The Tenant Improvement Allowance may be used for
any costs relating to the initial design and construction of the Tenant
Improvements, including without limitation, architectural and engineering fees
for preparation of preliminary space plans and architectural, electrical,
mechanical and engineering working drawings and the contractor's fees. Tenant
shall pay to Landlord a construction supervision fee, all or part of which may
be paid out of the Tenant Improvement Allowance, in an amount equal to one
percent (1%) of the Tenant Improvement Allowance amount. Prior to commencement
of the Tenant Improvements, Tenant will furnish Landlord with all plans and
specifications for the Tenant Improvements (collectively, the "Plans and
Specifications") for Landlord's approval (which approval shall not be
unreasonably withheld or delayed). Within fourteen (14) days after receipt of
the Plans and Specifications, Landlord shall notify Tenant whether or not
Landlord shall require Tenant to remove the initial Tenant Improvements to the
Property at the expiration the Lease Term and restore the Property to the same
condition as received. The Tenant Improvements shall be constructed in
accordance with the approved Plans and Specifications by a contractor selected
by Tenant and reasonably approved by Landlord, provided such contractor
satisfies Landlord's insurance requirements. The Tenant Improvements shall be
performed and completed in compliance with all applicable laws, codes, rules and
regulations, including any permit requirements, without any unpaid claims for
material, labor or supplies. Tenant shall furnish to Landlord executed
construction permits and such invoices, affidavits, releases, and other
documentation as Landlord may reasonably request, to be assured, to Landlord's
satisfaction, that the Tenant Improvements have been completed in accordance
with the Plans and Specifications approved by Landlord and have been paid for by
Tenant. Provided Tenant complies with all of the terms and conditions of this
Lease, including but not limited to, proof of payment of all bills and delivery
to Landlord of unconditional lien releases from all contractors, subcontractors
and material suppliers, Landlord shall make progress payments to Tenant in
accordance with Landlord's disbursement procedures for Tenant's costs incurred
in connection with the Tenant Improvements up to an amount not to exceed the
amount of the Tenant Improvement Allowance. Tenant will be responsible for
paying all costs of the Tenant Improvements in excess of the Tenant Improvement
Allowance. If the cost of the Tenant Improvements is less than the Tenant
Improvement Allowance, Tenant shall not be entitled to any remaining portion of
the Tenant Improvement Allowance or any credit, deduction or offset against rent
or any other amounts due under this Lease.
14
ARTICLE SEVENTEEN: OPTION TO EXTEND
SECTION 17.01. Landlord hereby grants to Tenant one (1) option (the
"Option") to extend the term of this Lease for five (5) years (the "Extension
Period"), on the same terms and conditions as set forth in this Lease (except
that there shall be no additional Tenant Improvement Allowance or additional
option to extend the Extension Period) but at an increased rent as set forth in
Section 17.03 below. The Option shall be exercised only by written notice
delivered to Landlord no later than two hundred and seventy (270) days prior to
the expiration of the Lease Term. If Tenant fails to deliver to Landlord written
notice of the exercise of the Option on or before such date, the Option shall
lapse, and there shall be no further right to extend the term of this Lease. The
Option shall be exercisable by Tenant only on the express condition that (i) at
the time of the exercise, and at all times prior to the commencement of the
Extension Period, Tenant shall not be in material default under any of the
provisions of this Lease, and (ii) Tenant shall not have been ten (10) or more
days late in the payment of Base Rent more than twice during any twelve (12)
consecutive month period during the Lease Term.
SECTION 17.02. If Tenant subleases any portion of the Property or
assigns or otherwise transfers any interest under this Lease to an entity other
than a Tenant Affiliate prior to the exercise of the Option, the Option shall
lapse. If Tenant subleases any portion of the Property or assigns or otherwise
transfers any interest of Tenant under this Lease to any person or entity after
the exercise of the Option but prior to the commencement of the Extension Period
(whether with or without Landlord's consent), the Option shall lapse and the
term of this Lease shall expire as if such Option was not exercised.
Notwithstanding anything to the contrary set forth in this Section 17.02, the
Option shall not lapse if any such sublease, assignment or other transfer is to
an entity which controls, is controlled by or is under common control with
Tenant.
SECTION 17.03. Base Rent for the Property shall be increased on the
first day of the Extension Period to an amount equal to the "fair rental value"
of the Property as of the first day of the Extension Period (which fair rental
value determination may include increases in rent during the Extension Period),
which fair rental value shall be determined by Landlord in its sole but
reasonable discretion, after evaluating, among other things, the rents at
similar buildings in the same general geographic area, but in no event shall the
Base Rent be less than the then current Base Rent being paid by Tenant. Landlord
shall notify Tenant in writing of such determination of fair rental value within
thirty (30) days after Landlord's receipt of Tenant's notice exercising the
Option. If Tenant shall dispute Landlord's determination of fair rental value
for the Property, then Landlord and Tenant shall cooperate in good faith to
arrive at a mutually agreeable Base Rent within thirty (30) days after receipt
of Landlord's notice of fair rental value. If the Parties cannot agree, Tenant
shall have the right to either (a) submit the issue of Landlord's reasonableness
(but not the fair rental value) for neutral binding arbitration (and not by
court action) to the American Arbitration Association in accordance with the
rules of such Association then in effect, or (b) rescind Tenant's exercise of
the applicable Option by delivery of written notice to Landlord within ten (10)
days after said thirty (30) day negotiation period, in which event, this Lease
shall terminate upon the expiration of the Lease Term or the first Extension
Period, as applicable (unless sooner terminated in accordance herewith), and
Tenant shall have no further right of option to extend the Lease Term. Tenant
shall exercise such right of arbitration by delivering written notice of such
election within thirty (30) days after receipt of Landlord's notice of fair
rental value. If the arbitrators shall decide that Landlord's determination of
fair rental value was reasonable, then fair rental value shall be the amount
previously determined by Landlord. If the arbitrators shall determine that
Landlord acted unreasonably, then Landlord shall redetermine the fair rental
value in its sole but reasonable discretion, provided that Tenant shall again
have the right to challenge Landlord's reasonableness in the manner set forth
above. In no event shall the arbitrators be permitted to determine rental value
under this Lease. The decision of the arbitrators shall be binding upon both
parties. Each party shall share equally the cost of the arbitration process.
ARTICLE EIGHTEEN: RIGHT OF FIRST OFFER
Provided that Tenant is not in material default under the terms of this
Lease, Tenant shall have a one-time right ("First Offer Right") to lease
approximately 9,600 square feet of space contiguous to the Property commonly
known as Unit E-2 (the "First Right Space") if the First Right Space comes
available for lease during the Lease Term, as the same may be extended. Landlord
shall give Tenant a one-time written notice ("Offer Notice") of the availability
of the First Right Space, which Offer Notice shall include a summary of the
economic terms for which Landlord is willing to enter into a lease of the First
Right Space. The parties acknowledge and agree that except with respect to such
economic terms, all of the terms and provisions of this Lease shall apply to any
lease by Tenant of the First Offer Space. Upon receipt by Tenant of the Offer
Notice, if Tenant desires to lease the First Right Space but objects to the
economic terms set forth in the Offer Notice, Landlord and Tenant shall
negotiate in good faith in an attempt to reach an agreement with respect to the
terms for Tenant's lease of the First Right Space. If Landlord and Tenant are
unable to agree on the terms of a lease of the First Right Space within ten (10)
business days after Landlord's delivery of the Offer Notice, Landlord shall
thereafter be free to lease such space to any third party on such terms and
conditions that Landlord deems appropriate in its sole and absolute discretion
and Tenant shall have no further option to lease or right to receive any notice
of any proposed lease with respect to such First Right Space.
ARTICLE NINETEEN: EXPANSION
Landlord shall use commercially reasonable efforts to accommodate
Tenant's expansion needs.
15
Landlord and Tenant have signed this Lease at the place and on the dates
specified adjacent to their signatures below and have initialed all Riders which
are attached to or incorporated by reference in this Lease.
"LANDLORD"
Signed on , 2000 BUCKHEAD INDUSTRIAL PROPERTIES, INC.,
-------------- a Maryland corporation
By: /s/ John Powell
---------------------------------------
JOHN POWELL
Its: INVESTMENT OFFICER
-------------------------------------
By:
-------------------------------------
Its:
------------------------------------
"TENANT"
Signed on , 2000 ALL AMERICAN IDT, INC.,
-------------- a California corporation
By: /s/ Howard L. Flanders
--------------------------------------
Howard Flanders,
Executive Vice President and Secretary
IN ANY REAL ESTATE TRANSACTION, IT IS RECOMMENDED THAT YOU CONSULT WITH
A PROFESSIONAL, SUCH AS A CIVIL ENGINEER, INDUSTRIAL HYGIENIST OR OTHER PERSON
WITH EXPERIENCE IN EVALUATING THE CONDITION OF THE PROPERTY, INCLUDING THE
POSSIBLE PRESENCE OF ASBESTOS, HAZARDOUS MATERIALS AND UNDERGROUND STORAGE
TANKS.
16
ADDENDUM TO LEASE
THIS ADDENDUM TO LEASE ("Addendum") is attached to and made a part of
that certain Lease ("Lease"), dated as of December 1, 2000, by and between
BUCKHEAD INDUSTRIAL PROPERTIES, INC., a Maryland corporation ("Landlord"), and
ALL AMERICAN IDT, INC., a California corporation ("Tenant"). Capitalized terms
not otherwise defined herein shall have the meaning assigned to such term in the
Lease. In the event of any conflict between the terms of this Addendum and the
terms of the Lease, the terms of this Addendum shall control.
1. The following language is added to Section 1.05 of the Lease:
"If Tenant disputes the square footage of the Property as stated in this Section
1.05, then within thirty (30) days after the date Landlord delivers possession
of the Property to Tenant for early occupancy, Tenant's architect shall be
permitted to verify the measurement of the Property and any dispute as to the
actual square footage of the Premises shall be resolved by an independent
architect mutually agreeable to Landlord and Tenant, the cost of whose service
shall be shared equally by Landlord and Tenant. If Tenant fails to notify
Landlord of any objections to the square footage of the Property within thirty
(30) days of delivery of the Property to Tenant, the Property shall be
conclusively deemed to be the square footage set forth in this Section 1.05. If
the actual square footage is determined to be more than 3% more or less than the
square footage stated in this Section 1.05, then the Base Rent amounts and
Tenant's Pro Rata Share set forth herein shall be re-computed on the basis of
the adjusted square footage. In determining the square footage for the Property,
the same shall be measured from the exterior of exterior walls and to the center
of interior or dividing walls without any reduction, whatsoever for any columns,
stairs, shafts, or other equipment within the Property."
2. The following is added to the end of Section 4.05(a):
"Such activities and changes shall not unreasonably interfere with Tenant's use
of or access to the Property."
3. The following language is added to the end of Section 4.05(d):
"Any contrary provision contained in this Section 4.05 or elsewhere in this
Lease notwithstanding, for purposes of calculating Common Area Expenses, in no
event shall such Common Area Expenses include (i) any item which would be deemed
a "capital expenditure" under generally acceptable accounting principles except
for capital expenditures (A) which are intended to effect economies in the
operation or maintenance of the Project, or any portion thereof, to the extent
of the reduction in the Common Area Expenses reasonably anticipated by Landlord
at the time of such expenditure to be incurred in connection therewith, and (B)
that are required under any governmental law or regulation not in effect and
being enforced as of the Commencement Date, provided, however, that the cost of
any such capital expenditure shall be amortized (including interest on the
unamortized cost) over its useful life as Landlord shall reasonably determine
and , (ii) costs of alternations or improvements, including maintenance items to
the property or premises of other tenants which only serves those tenants, (iii)
salaries, wages and all benefits paid to or for a persons above the level of
building manager, (iv) costs of correcting latent defects in the construction of
the Building, (vi) legal fees, space planners' fees, and advertising and
promotional expenses incurred in connection with and incidental to the
development or leasing of the Building, and (vii) any legal fees and costs of
Landlord (including, but not limited to, those incurred in connection with any
litigation or other proceedings between Landlord and any other tenant unless
related to the use or maintenance of the Common Areas) except those legal fees
and costs incurred in the normal course of Landlord's business.
4. The following language is added to the end of Section 6.01:
"Landlord shall, at Landlord's sole cost and expense, and not as an Common Area
Expense, make the following repairs to the Property as soon commercially
practicable after execution of this Lease: (a) replace any missing guide wires
on the 2x4 lights in order to keep the lights attached to the ceiling; (b)
repair miscellaneous damaged and inoperable door hardware; (c) repair or replace
broken Exit signs and missing lenses; (d) repair GFCI in staff lounge area; (e)
replace missing light lens covers; (f) repair loose warehouse foil insulation;
(g) repair the loose quad box at the ladder above the warehouse restroom; (h)
repair or replace missing and damaged outlet cover plates throughout the
Property; (i) repair open and exposed wires and uncovered J boxes; (j) repair
disconnected roof drain at exterior of the Building; (k) repair warehouse mop
sink faucet leak; (l) repair damaged HVAC ducting, connect unconnected HVAC
ducting and correctly strap HVAC ducting; (m) correctly strap sprinkler head in
upstairs restroom; (n) install additional Exit
signage if required by any governmental agency or authority in order to comply
with applicable codes or regulations; and (o) repair damaged headers at location
of loading dock doors. Additionally, Landlord shall, at Landlord's sole cost and
expense, replace the roof on the Property during the month of December 2000 or
January 2001."
5. The following language is added to the end of Section 6.04(a):
"Any contrary provision contained in this Section 6.04 or elsewhere in this
Lease notwithstanding, Tenant shall have the benefit of any applicable warranty
in effect as of the Commencement Date.
6. The following language is added to the end of Section 6.06:
"Any contrary provision contained in this Section 6.06 or elsewhere in this
Lease notwithstanding, in no event shall Tenant be required to remove Tenant's
initial Tenant Improvements upon the expiration or earlier termination of this
Lease."
7. The following language is added to the end of Article Seven:
"Any contrary provision in this Lease notwithstanding, Tenant shall have the
option to terminate this Lease if any such damage or destruction is not actually
repaired and restored within fifteen (15) months after the date such damage or
destruction occurs, by giving notice to Landlord of Tenant's election of it's
option at any time after such fifteen (15) month period but before such damage
or destruction is actually restored"
8. The following language is added to the end of Article Eight:
"Any contrary provision contained in this Article Eight notwithstanding, Tenant,
shall have the absolute right to terminate this Lease at any time within thirty
(30) days, if this Lease is not terminated by Landlord and the restoration of
the Property required by Landlord under this Article Eight has not occurred
within ninety (90) days after the date of the taking."
8. The following language is added as Articles Nineteen, Twenty and
Twenty-One:
"Article Nineteen: Subordination of Landlord's Lien. Upon Tenant's request
Landlord shall subordinate its "landlord's lien" or any other statutory lien,
contractual lien or security interest given by law or this Lease to Landlord in
any property (including, but not limited to equipment, furniture, fixtures,
inventory and supplies) of Tenant now or hereafter placed in or upon the
Property. Landlord agrees to execute Landlord's standard form of Landlord's
Subordination and Consent Agreement to evidence this waiver of its landlord's
lien or other statutory lien or contractual and to acknowledge that Tenant shall
have the right to obtain financing on any or all of its property (including, but
not limited to, equipment, furniture, fixtures, inventory and supplies) which it
brings upon the Property and to grant a first security or other priority
security interest and lien in and to such property in connection therewith."
"Article Twenty: Landlord's Representations. Landlord represents and warrants to
Tenant that Landlord has full power and authority, and has taken all necessary
action, to execute, deliver and perform under this Lease.
"Article Twenty-One: Access. Tenant shall have access to the Property 24 hours
per day, 7 days per week, without additional charge by Landlord."
LANDLORD: TENANT:
BUCKHEAD INDUSTRIAL PROPERTIES, INC., ALL AMERICAN IDT, INC.,
a Maryland corporation a California corporation
By: /s/ John Powell By: /s/ Howard L. Flanders
---------------------------------- ---------------------------------
JOHN POWELL Howard Flanders,
Executive Vice President and Secretary
Its: INVESTMENT OFFICER
---------------------------------